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Tyler v. Cuomo

TASHIMA, Circuit Judge: For the second time, this case is before us for the resolution of justiciability issues. Following remand from this court, the district court dismissed the action for the second time for lack of Article III standing. Plaintiffs, who are homeowners in San Francisco’s Mission District (“Homeowners” or “plaintiffs”), again appeal. Homeowners brought this action against defendants, United States Department of Housing and Urban Development (“HUD”), the City and County of San Francisco (the “City”), Mission Housing Development Corporation (“Mission Housing”), and 1010 SVN Associates (collectively “defendants”), challenging the award of federal funding for construction of a four-story, low-income housing project in their neighborhood. Homeowners alleged that defendants had violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332(2)(C), and § 106 of the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470f. On this appeal, Homeowners contend that defendants failed to comply with certain of the stipulations in a Memorandum of Agreement (“MOA”), entered into pursuant to the statutory scheme. We have jurisdiction under 28 U.S.C. § 1291. We affirm the district court’s dismissal of HUD, Mission Housing, and 1010 SVN Associates. We hold, however, that plaintiffs have standing against the City. Concluding that there are no remaining problems of justiciability, we remand for the district court finally to consider the merits of Homeowners’ case against the City. I. FACTUAL AND PROCEDURAL BACKGROUND A 30-unit, four story, low-income housing project has been constructed on the corner of 21st Street and South Van Ness Avenue in the Mission District of San Francisco, California, to house persons with HIV/AIDS and low-to-middle-income tenants (“Van Ness Project”). Four of the plaintiff Homeowners are local owners and residents of homes eligible for inclusion in the National Register of Historic Places (“National Register”). Planning for the Van Ness Project began in 1994. The project was funded by private loans, federal and state tax credits, and two HUD programs: the Home Investment Partnerships Program (“HOME”) and Housing Opportunities for Persons with AIDS Program (“HOPWA”). HUD committed $1.5 million in HOME funds to the developer through the Mayor’s Office of Housing, and $1 million in HOPWA funds through the San Francisco Redevelopment Agency. Both the HOME and HOPWA programs contain environmental review requirements. See 24 C.F.R. Parts 50 & 58. Before receiving the HOME funds, the City assumed responsibility for NHPA and NEPA compliance under the delegation provision of 42 U.S.C. § 12838. In relation to the HOPWA funds, HUD retained responsibility for NHPA and the NEPA compliance, as required under 24 C.F.R. § 50.10. A. Statutory and Regulatory Framework 1. NHPA Under NHPA, it is the policy of the federal government to “foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations.” 16 U.S.C. § 470-1(1). Section 106 of the NHPA requires that whenever a federal agency has “direct or indirect jurisdiction” over a project or program that could affect historic properties, the federal agency must study ways to avoid or mitigate any adverse impacts to those properties. 16 U.S.C. § 470f. The agency must afford the Federal Advisory Council on Historic Preservation (“Advisory Council”) “a reasonable opportunity to comment.” Id. The § 106 review process requires the federal agency to: (1) identify the properties that are eligible for listing on the National Register that would be affected by the federal undertaking; (2) determine if the effect could be adverse; and (3) if so, consult with the State Historic Preservation Officer (“SHPO”) to develop alternatives to mitigate any adverse effects on the historic properties. See 36 C.F.R. §§ 800.4(b) & (c) & 800.5(e). If the agency and the SHPO agree, they execute a MOA, which must be joined in or approved by the Advisory Council. See 36 C.F.R. §§ 800.5(e)(4), 800.6(a). Where a MOA is executed, it “shall govern the undertaking and all of its parts.” 16 U.S.C. § 470h-2(1). 2. NEPA NEPA and the Council on Environmental Quality’s implementing regulations, 40 C.F.R. § 1500 et seq., require federal agencies to conduct an environmental review of proposed federal actions. See Robettson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA requires an agency to prepare a detailed “environmental impact statement” (“EIS”) on “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). These actions include projects implemented by non-federal entities that use federal funding. See 40 C.F.R. § 1508.18. The implementing regulations provide for the preparation of “environmental assessments” (“EA”s), which are concise preliminary evaluations that “[bjriefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact [ (‘FONSI’) ].” 40 C.F.R. § 1508.9(a)(1). The regulations provide that “[mjitigation ... and other conditions established in the environmental impact statement or during [the agency’s] review and committed as part of the decision shall be implemented by the lead agency.” 40 C.F.R. § 1505.3. B. Factual Background The City and HUD conducted environmental and historical reviews for the Van Ness Project pursuant to their obligations under the HOME and HOPWA programs. In February 1995, during the course of the NHPA review, the City determined that the Van Ness Project might have an adverse impact on six historic residential properties eligible for inclusion on the National Register, including Homeowners’ properties. In April 1995, in order to minimize the potential impact, a binding MOA was entered into by signatories HUD, the City, the Advisory Council, and the California SHPO. Mission Housing and the City’s Landmarks Preservation Advisory Board formally concurred in the MOA. Two stipulations of the MOA are at issue in this appeal. Stipulation 5 of the MOA states that: At any time during implementation of the measures stipulated in this Agreement, should an objection to any such measure or its manner of implementation be raised in writing by a member of the public, the City shall take the objection into account and consult as needed. Stipulation 8 of the MOA states that: If any of the signatories to this Agreement believes that the terms of this Agreement cannot be carried out, or that an amendment to the terms of the Agreement cannot be carried out, or that an amendment to the terms of the Agreement must be made, that signatory shall immediately notify the other signatories and request consultation to amend this Agreement. In May 1995, the City prepared an EA in the course of the NEPA review for the HOME and HOPWA grants and found that the Van Ness Project could have some impact on the environment and properties. The EA recommended that approval of the Van Ness Project be subject to the MOA as a mitigation measure to alleviate adverse environmental impacts. In response to the EA, the City issued a FONSI and Notice to the Public of Intent to Release Funds for the Project (“Notice”). The Notice stated that an EIS would not be required because the mitigation measures in the MOA would adequately address any adverse effects on the environment. HUD issued its own FONSI for the HOPWA funds, similarly including the MOA as a condition to project approval. The City certified, in June 1995, that it had fulfilled its NEPA and NHPA obligations and formally requested the release of HOME funds. The City and HUD accepted comments on the FONSIs for the HOME and HOPWA funds. HUD then formally released these funds to the City. From November 1995 to July 1996, Mission Housing submitted architectural plans for review to various City planning agencies. Notwithstanding plaintiffs’ persistent objections to the scale, color, and materials of the project, the plans were approved. Construction commenced in November 1996, and tenants began occupying the building in April 1998. The Van Ness Project now is fully occupied, with 120 tenants living in 30 units, and has a waiting list of 1,000 persons. C. Procedural Background In August 1996, before construction had commenced on the Van Ness Project, plaintiffs filed their complaint against HUD, the City, Mission Housing, and the project owner, 1010 SVN Associates. Plaintiffs alleged violations of NHPA, NEPA, the Administrative Procedures Act (“APA”), the Due Process Clause of the Fourteenth Amendment and 42 U.S.C. § 1983. Plaintiffs requested injunctive and declaratory relief, compensatory and punitive damages, and reasonable fees and costs. In December 1996, the district court granted defendants’ motions to dismiss, and denied plaintiffs’ application for a temporary restraining order. See Tyler v. Cisneros, No. C-96-3056-VRW, 1996 WL 723083 (N.D.Cal. Dec.2, 1996) (“Tyler I”). The district court ruled that the NHPA claims were moot because NHPA contained an “implicit statute of limitations,” which barred assertion of the NHPA claims as to both HOPWA and HOME funds after HUD’s release of those funds to the City. Id. at *4. In the alternative, under NHPA, the court held that Homeowners’ claims failed because HUD no longer exercised continuing authority over the funds. It also ruled that under NEPA, HUD did not exercise authority over the HOPWA funds once they were distributed, and that the claims regarding the HOME funds were moot because plaintiffs could only challenge those during the 15-day comment period preceding allocation. Finally, the district court dismissed Homeowners’ claims against the City as a delegatee of the environmental review responsibilities under the HOME program. See id. We reversed the 1996 decision and remanded the case to the district court in February 1998. See Tyler v. Cisneros, 136 F.3d 603, 605 (9th Cir.1998) (“Tyler II ”). We held that NHPA does not contain an implicit statute of limitations, and that “HUD may have some continuing authority because it is a party to the Agreement.” Id. at 608. We were clear that “[a]t most, the plaintiffs will be able to enforce an agreement whereby HUD is to engage in consultation. On remand, the district court should decide whether such consultation was indeed warranted.” Id. at 609. As to the claims against the City, we concluded that, at the pleading stage, Homeowners have standing through Stipulation 5 of the MOA and remanded for the district court to determine “whether there was any such failure to carry out this stipulation.” Id. at 610. We instructed that: On remand, the district court should first address the issue of whether the plaintiffs have standing to enforce the terms of the Agreement. If so, the district court should decide the extent of HUD’s and the City’s obligations to the plaintiffs under the Agreement and whether these obligations were breached. The district court should also decide how to allocate attorney’s fees depending on the resolution of these issues. Id. On remand, the district court granted motions by HUD and the City, joined by Mission Housing and 1010 SVN Associates, to dismiss the action because plaintiffs lacked standing. Examining Article III standing, the district court held that Homeowners had pleaded facts to allege that they suffered an injury in fact and had shown a causal connection between the conduct complained of and the injury. It concluded, however, that plaintiffs had not shown redressability because they did not demonstrate “that it [was] likely that a favorable decision from this court will redress their injuries.” ■ The district court stressed that “the project has been completed and that the Ninth Circuit has limited plaintiffs’ available causes of action to one based on two consultation provisions of the MOA.” Plaintiffs timely appealed. II. STANDARD OF REVIEW We review questions of standing de novo. See Douglas County v. Babbitt, 48 F.3d 1495, 1499 (9th Cir.1995). “For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Graham v. FEMA, 149 F.3d 997, 1001 (9th Cir.1998) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (holding that “[a]t the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice” to survive a-motion to dismiss). In determining whether a plaintiff can prove facts in support of his or her claim that would entitle him or her to relief, we may consider facts contained in documents attached to the complaint. See Roth v. Garcia Marquez, 942 F.2d 617, 625 n. 1 (9th Cir.1991) (citing Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987)). At the pleading stage, we may affirm on any ground supported by the record. See Tyler II, 136 F.3d at 607. III. ANALYSIS To satisfy constitutional standing, plaintiffs bear the burden of showing that they meet three requirements: (1) they suffered an “injury in fact;” (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is “likely,” as opposed to “speculative,” that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (citations omitted). A. Standing Against the City 1. Injury in Fact An “injury in fact” is “an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560, 112 S.Ct. 2130 (citations and internal quotation marks omitted). The district court found that “[t]he injury in fact that plaintiffs have suffered is damage to their property interests in their homes.” Defendants contend that Homeowners made only a general allegation that they would be adversely affected by the Van Ness Project. In their complaint, however, Homeowners specifically alleged that: The Proposed Project will adversely affect the Historic Properties by diminishing the integrity of the Historic Properties’ location, design, setting, and feeling and by introducing visual and atmospheric elements that are out of scale, and character, with the Historic Properties. Furthermore, the Proposed Project’s height, bulk and lack of set-backs will overshadow and diminish the Historic Properties, thus introducing atmospheric elements that are out of character with the Historic Properties. We may also look to documents supporting the complaint in determining the scope and specifics of Homeowners’ claim. See Roth, 942 F.2d at 625 n. 1. In plaintiff Tyler’s declaration, he stated that Homeowners were concerned about the effects of the Van Ness Project on their neighborhood, because of “excessive building height, excessive building bulk, overall number of units, need for setbacks, restriction on future lot split, inadequate parking spaces, and building design and materials.” Given that plaintiffs’ homes are directly affected by changes to structures in the neighborhood, we conclude that they have adequately established an injury in fact for purposes of Article III standing in relation to the City. Cf. Lujan, 504 U.S. at 565-66, 112 S.Ct. 2130 (holding that “a plaintiff claiming injury from environmental damage must use the area affected by the challenged activity”) (citation omitted). 2. Causation We hold as well that plaintiffs have established the second requirement of constitutional standing by showing a causal connection between their injury and the City’s conduct. Causation requires that the injury be “fairly traceable to the challenged action of the defendant, and [is] not the result of the independent action of some third party not before the court.” Virginia Sur. Co. v. Northrop Grumman Corp., 144 F.3d 1243, 1246 (9th Cir.1998) (citing Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (citation and internal quotation marks omitted)). We conclude that this case is different from Warth. In Warth, petitioners sued the Town of Penfield, alleging that a zoning ordinance had the purpose and effect of excluding people of low and moderate incomes from the housing market. The Supreme Court found that petitioners’ inability to reside in the town was a result of economies of scale and individual financial situations, rather than the zoning ordinance. See 422 U.S. at 506, 95 S.Ct. 2197. The Court concluded that, “the facts alleged fail to support an actionable causal relationship between Penfield’s zoning practices and petitioners’ asserted injury.” Id. at 507, 95 S.Ct. 2197. In Warth, the link between plaintiffs’ injury and defendants’ actions was so tenuous that plaintiffs could not show causation. In the case at bench, however, the injury to Homeowners, who reside in historic homes in the Mission District, is fairly traceable to the City’s actions in constructing the Van Ness Project, allegedly in violation of its obligation in Stipulation 5 of the MOA to consult with the public. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130. We conclude that Homeowners have adequately shown that the City’s actions in accepting federal funding, issuing environmental reports, and assisting with construction of the Van Ness Project establish a causal connection to the injury to Homeowners’ properties. 3. Redressability Under the third constitutional standing requirement, Homeowners must show that their injury is redressable; that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). With regards to the City, Homeowners have met this burden. Homeowners claim that the “‘redress’ which plaintiffs seek is not the demolition of the housing project, but rather, compliance with the terms of the MOA, including the consultations required by the MOA if ‘members of the public’ believe that its terms are not being carried out.” We conclude that plaintiffs have standing against the City under Stipulation 5 of the MOA, which requires the City to “take the objection into account and consult as needed” with respect to any objection “by a member of the public” to the manner in which the MOA is being implemented. The district court concluded that “plaintiffs provide the court with no reason to believe that requiring ... the City to hon- or the consultation provisions, if indeed [it has] not already done so, would be likely to result in a new color scheme, different landscaping or any other change to the Van Ness Project.” The district court should not have pre-judged the outcome of consultation entered into pursuant to Stipulation 5 of the MOA. See Beno v. Shalala, 30 F.3d 1057, 1065 (9th Cir.1994) (“[T]he mere fact that, on remand, the' Secretary might again issue a waiver does not defeat plaintiffs’ standing.”). As stated by the District of Columbia Circuit, “[w]hether a plaintiff has a legally protected interest (and thus standing) does not depend on whether he can demonstrate that he will succeed on the merits.” Louisiana Energy & Power Auth. v. Federal Energy Regulatory Comm’n, 141 F.3d 364, 368 (D.C.Cir.1998) (citation and internal quotation marks omitted). The case at hand differs from Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), in which the Supreme Court held that the plaintiffs lacked standing to challenge a ruling of the Internal Revenue Service that gave favorable tax treatment to nonprofit hospitals that provided only emergency-room services to indigents. .The Court held that decisions of the hospitals may have been made without regard to tax implications. See id. at 42-43, 96 S.Ct. 1917. The district court concluded that “[m]uch as the hospitals involved in Simon might have continued to deny treatment to indigent patients in spite of an order striking down the contested revenue ruling, it seems as likely as not that ... the City would continue to refuse plaintiffs’ requests in spite of an order from this court requiring consultation.” In pre-judging the outcome, however, the district court overlooked the close connection between the parties in this case. In Simon, there was only an attenuated connection between plaintiffs’ injuries and the relief being sought because hospitals could choose not to care for indigent individuals rather than getting tax benefits. Here, consultation'would require the assertedly injured Homeowners and representatives of the City, which caused the injury, to sit down together in a faee-to-face meeting. Plaintiffs could, conceivably, directly impact the City’s decisions. The Fifth Circuit provided a well-reasoned analysis in Vieux Carre Property Owners, Residents & Assocs., Inc. v. Brown, 948 F.2d 1436, 1446-47 (5th Cir.1991). In Vieux Carre, plaintiff property owners sued the Army Corps of Engineers concerning the construction of a riverside park which was potentially subject to NHPA review, even though the park was already complete. The Fifth Circuit determined that the action was not moot even though only smaller changes could still be made, compared to the broader relief plaintiffs initially sought. While Vieux Carre discussed mootness rather than redressability, we find its language instructive: At this point ... it is impossible for us to know with any degree of certainty just what the end result of the NHPA process would be. For example, NHPA review could result in a determination ... that at this late date nothing can be done, or should be done, to mitigate the adverse effects of the park project on the historic properties.... We find it inappropriate to pre-judge those results as being limited to the extremes of either maintaining the status quo or totally demolishing the park. Therefore, a district court should not pre-judge the result of the NHPA process by concluding that no relief is possible.... Even though, in this NHPA case, Vieux Carre’s possible relief may appear to some to be irrelevant, trivial, or prohibitively expensive, a district court should beware of shortcutting the process which has been committed in the first instance to the responsible federal agency. Id. (footnotes and internal quotation marks omitted). Likewise, we ■«'ill not pre-judge the outcome of any consultations between the City and Homeowners engaged in pursuant to Stipulation 5. 4. Contract Arguments The City argues that Homeowners cannot enforce the MOA because they lack privity of contract and are not intended beneficiaries of the MOA. The MOA is a contract and the City is bound by its terms. See Citizens’ Comm. for Envt’l Protection v. United States Coast Guard, 456 F.Supp. 101, 115 (D.N.J.1978). Federal law controls the MOA’s interpretation because it was entered into pursuant to a federal scheme and HUD is a party. See Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir.2000) (holding that federal law controls the interpretation of a contract entered into pursuant to federal law when the United States is a party). “The interpretation of a contract is a mixed question of law and fact subject to de novo review. In particular, the determination of whether contract language is ambiguous is a question of law.” Id. (citation omitted). Stipulation 5 of the MOA specifically provides that if a “member of the public” makes a written complaint, “the City shall take the objection into account and consult as needed with the objecting party.” While Homeowners were not signatories to the MOA, Stipulation 5 specifically provides that objections can be raised by members of the public. See Waterford Citizens’ Ass’n v. Reilly, 970 F.2d 1287, 1290 (4th Cir.1992) (holding that a citizen’s association had standing to enforce the provisions of a MOA for a nearby sewer, even when it was neither a party to nor mentioned in the MOA). In Tyler II, we distinguished Citizens’ Committee, 456 F.Supp. at 115, by noting that there “the court held that plaintiffs could not enforce an Agreement entered into for purposes of NEPA when they were not signatories to it, nor mentioned in it.... Here, however, the public’s right to bring objections is specifically mentioned in the Agreement.” Tyler II, 136 F.3d at 610 (citation omitted). The City nonetheless argues that Homeowners do not have standing to challenge the MOA because they are not third-party beneficiaries. See Helfand v. Gerson, 105 F.3d 530, 538 (9th Cir.1997) (“Courts have extended the right to sue for breach of contract to intended third-party beneficiaries.”). “Before a third party can recover under a contract, it must show that the contract was made for its direct benefit— that it is an intended beneficiary of the contract.” Klamath Water Users, 204 F.3d at 1210. Although Homeowners were not concurring parties to the MOA, this is not conclusive as a matter of law to show that they were not intended beneficiaries, especially since the public is specifically referenced in Stipulation 5. See 36 C.F.R. § 800.5(e)(4) (1986); Klamath Water Users, 204 F.3d at 1210. It would appear that Stipulation 5’s reference to the public would include Homeowners and, thus, that Homeowners have standing as third-party beneficiaries to the MOA. We conclude that Homeowners have adequately alleged Article III standing as against the City under Stipulation 5. They have also adequately alleged standing to survive the City’s contract-based arguments on a motion to dismiss. B. Standing Against HUD We hold that Homeowners do not have standing to sue HUD. We specifically held in Tyler II that: HUD’s obligation did not extend further than the terms of the Agreement because the environmental review process was complete and the plaintiffs have no quarrel with the adequacy of those reviews. At most, the plaintiffs will be able to enforce an agreement whereby HUD is to engage in consultation. Tyler II, 136 F.3d at 609 (emphasis added) (citation omitted). Stipulation 8 of the MOA states that: If any of the signatories to this Agreement believes that the terms of this Agreement cannot be carried out, or that an amendment to the terms of the Agreement cannot be carried out, or that an amendment to the terms of the Agreement must be made, that signatory shall immediately notify the other signatories and request consultation to amend this Agreement. We conclude that the MOA alone is not an adequate basis, as a matter of law, to hold HUD liable for NEPA or NHPA violations. There is neither a causal connection between the injury and the conduct complained of nor is there any redressability in relation to HUD. Under Stipulation 8, only signatories to the MOA can request consultation and any consultation held would only be between the signatories. Stipulation 8 does not afford Homeowners the opportunity either to call for or to be part of any consultations. In these respects, Stipulation 8 differs from Stipulation 5 in that the latter permits the public to raise objections and, arguably, requires the City to consult with the objecting members of the public. We read Tyler II to preclude our consideration of any obligation imposed upon HUD under the statutes or regulations because Tyler II explicitly limits HUD’s potential liability to the terms of the MOA. See Tyler II, 136 F.3d at 609. Under 36 C.F.R. § 800.6(c), “[t]he Agency Official shall ensure that the undertaking is carried out in accordance with the Memorandum of Agreement.” Under 40 C.F.R. § 1505.3, mitigation established during review of the EIS “and committed as part of the decision shall be implemented by the lead agency.” Even assuming that these regulations could reasonably be interpreted to impose upon HUD the duty to insure that the other signatories to the MOA meet their obligations thereunder, the law of the case bars consideration of such regulation-based arguments. See Agostini v. Felton, 521 U.S. 203, 236, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (citing Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912)) (holding that under the law of the case doctrine, “a court should not reopen issues decided in earlier stages of the same litigation”); Aleman v. Glickman, 217 F.3d 1191, 1199 (9th Cir.2000) (“Were this court addressing the issue on a ‘clean slate,’ such an argument may have merit.... However, the slate is not clean”) (internal quotation marks and citation omitted). We, therefore, conclude that the MOA alone cannot provide a basis for standing against HUD. First, there simply is not an adequate causal connection between Stipulation 8 and the asserted injury. See Regents of the Univ. v. Shalala, 82 F.3d 291, 298 (9th Cir.1996) (holding that the alleged injury and conduct of defendants were “too attenuated to establish standing”); see also Warth, 422 U.S. at 504-07, 95 S.Ct. 2197. Any. benefit Homeowners received from consultations under Stipulation 8 would only derive from the action of another signatory in requesting consultation. See Virginia Sur., 144 F.3d at 1246 (holding that causation cannot arise from the independent action of a third party). Even if consultation were requested by a signatory under Stipulation 8, it is highly speculative that the signatories would ultimately agree to amend the MOA in a manner benefit-ting Homeowners. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130; Simon, 426 U.S. at 42-43, 96 S.Ct. 1917. Not only is there no standing against HUD based on Stipulation 8 under traditional Article III standing, but Stipulation 8 does not even provide a basis for procedural standing because it in no way accords Homeowners any “procedural right to protect [their] concrete interest.” Churchill County, 150 F.3d at 1078. C. Claims Against Mission Housing and 1010 SYN Associates We conclude, as well, that the district court properly dismissed defendants Mission Housing and 1010 SVN Associates. There is no standing against Mission Housing because plaintiffs have not adequately alleged facts to establish either causation or redressability. While Mission Housing concurred in the MOA, it was not a signatory. Mission Housing’s only connection to the Van Ness Project was submitting architectural plans to the City. This connection simply is too attenuated to grant standing to the Homeowners. See Regents of the Univ., 82 F.3d at 298. Unlike the City, Mission Housing is not specifically obligated to confer with the public in Stipulation 5 or anywhere else in the MOA. Given that Stipulation 8 does not establish standing against HUD, a signatory to the MOA, it certainly is not adequate to confer standing against Mission Housing. See Simon, 426 U.S. at 42-45, 96 S.Ct. 1917; Warth, 422 U.S. at 507, 95 S.Ct. 2197. For all of these reasons, Homeowners cannot establish standing against Mission Housing. Further, Homeowners have not stated any claim for relief against 1010 SVN Associates, the owner of record of the Van Ness Project property. See Tyler II, 136 F.3d at 607 (holding that a complaint should be dismissed if it does not allege facts that would entitle a plaintiff to relief). 1010 SVN Associates did not join the MOA as a signatory or a concurring party. 1010 SVN Associates is not even mentioned in the MOA. See Citizens’ Comm., 456 F.Supp. at 115 (holding that plaintiffs who were neither signatories to nor mentioned in a MOA “lack the contractual and constitutional standing required”). Homeowners have simply failed to state any claim against 1010 SVN Associates. D. Mootness We hold that the case against the City is not moot; there is a live controversy and the parties have a cognizable interest in the outcome. See H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 612 (9th Cir.2000) (citing Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)) (“A case is moot where the issues before the court no longer present a live controversy or the parties lack a cognizable interest in the outcome of the suit.”). The City argues that the case is moot because the project is complete and this court cannot grant effective relief. We disagree because changes can still be made to help alleviate any adverse effects. See Vieux Carre, 948 F.2d at 1447 (“We find it inappropriate to pre-judge the results as being limited to the extremes of either maintaining the status quo or totally demolishing the park.”). We find this case different from Fair v. United States EPA, 795 F.2d 851 (9th Cir.1986), relied on by the City. In Fair, we held that a challenge to the withholding of funds for a sewer project, pending further study, was moot because 70% of the funds were already distributed and the sewer was complete. See id. at 854-55. Although the Van Ness Project has been built and is occupied, modifications can still be made. See Vieux Catre, 948 F.2d at 1446-47. Homeowners are correct that “viable revisions to the project’s color and materials, among other things, can still be made which can still substantially reduce the project’s incompatibility with plaintiffs’ homes.” Homeowners are not asking that the Van Ness Project be reconstructed. Changes to the structure could still minimize any adverse impacts on their properties. We hold that the case against the City presents a live controversy and, therefore, is not moot. CONCLUSION We affirm the-district court’s dismissal of HUD, Mission Housing and 1010 SVN Associates. We reverse the dismissal of Homeowner’s claims against the City under Stipulation 5 of the MOA and remand for further proceedings consistent with this opinion. Mission Housing, 1010 SVN Associates, and HUD shall recover from plaintiffs their respective costs on appeal. Homeowners and the City shall bear their own costs on appeal. AFFIRMED in part, REVERSED and REMANDED in part. . In addition, the remaining plaintiff, Solow, is the owner/occupant of residential property located at 647 Shotwell Street in San Francisco, which is near the site of the Van Ness Project. . The SHPO is the state official responsible for assisting federal agencies in carrying out their historic preservation responsibilities under 16 U.S.C. § 470(b), and is involved with the § 106 consultation process. . On June 15, 1999, revised regulations, 36 C.F.R. § 800 et seq., implementing § 106 became effective. All citations in this opinion are to the regulations that were in effect prior to June 15, 1999, when the parties executed and commenced implementing the MOA. . The action was filed against Henry G. Cisneros, then HUD Secretary. Andrew M. Cuomo, as his successor, has been substituted as a defendant in his place. . Other defendants originally named have been dismissed, including the California Department of Parks and Recreation, and Vincent Marsh, Secretary of the San Francisco Landmarks Preservation Advisory Board. . In Tyler II, plaintiffs did not appeal the district court's dismissal for failure to state a claim on the grounds that the City had violated Stipulation 1 of the MOA and NHPA’s implementing regulations by failing to resubmit the Project to the Advisory Council, and had violated the preamble of the MOA by failing to consider comments by plaintiffs and other interested persons. In addition, plaintiffs appealed neither the district court’s ruling that the APA claims failed nor its dismissal of the due process and § 1983 claims. Plaintiffs also did not dispute the adequacy of the pre-disbursement reviews. See Tyler II, 136 F.3d at 607 n. 2, 609-10. All of these arguments have been waived. See American Ad Management, Inc. v. General Tel. Co. of Cal, 190 F.3d 1051, 1054 n. 2 (9th Cir.1999) ("American waived its other antitrust claims in its prior appeal when it did not challenge their dismissal by the district court.”); see also SIPC v. Vigman, 74 F.3d 932, 936-37 (9th Cir.1996) (holding that a party cannot revisit issues that it abandons on appeal). . We also concluded that Homeowners’ claim that the City violated regulations governing the review process under NHPA was moot because the review process ended when the Advisory Council accepted the MOA. See 136 F.3d at 610 n. 3. . In Tyler II, we indicated that plaintiffs’ harms may be redressable against the City under the regulations, see 136 F.3d at 609, or under the MOA, see id. at 610. If a choice is necessary, that choice need hot be made now. For this reason, however, we analyze plaintiffs’ standing in the alternative, first, under Article III, then under contract principles. . We note that, during the long pendency of this litigation, plaintiffs have never amended their complaint to make their alleged injury any more'specific. . Plaintiffs also argue that they have procedural standing under the MOA. See Churchill County v. Babbitt, 150 F.3d 1072, 1077 (9th Cir.) ("Procedural standing is standing based on a plaintiff’s procedural injury.”), amended by, 158 F.3d 491 (9th Cir.1998). To establish procedural standing, "[t]he requisite weight of proof for each element of the [standing] test is lowered.” Id. Under the Ninth Circuit test for procedural standing, a plaintiff must show: "(1) that it has been accorded a procedural right to protect its concrete interests, and (2) that it has a threatened concrete interest that is the ultimate basis of its standing.” Id. at 1078 (citing Douglas County, 48 F.3d at 1500-01). Plaintiffs must also "show that his interest falls within the 'zone of interests’ that the challenged statute is designed to protect.” Douglas County, 48 F.3d at 1500-01 (citation omitted). Because Homeowners have established standing against the City under a substantive standing analysis, we need not engage in the procedural standing inquiry. . We hold that Tyler II forecloses any argument under 40 C.F.R. § 1505.3 (NEPA) and 36 C.F.R. § 800.6 (NHPA), and plaintiffs have identified no other provision in the statutory and regulatory schemes that require HUD to insure that the MOA is complied with by other signatories.

Louisiana Landmarks Society, Inc. v. City of New Orleans

JERRY E. SMITH, Circuit Judge: The City of New Orleans, the Rivergate Development Corporation, and Harrah’s Jazz Company (collectively, “the defendants”) appeal an order granting Louisiana Landmarks Society (“Landmarks”) a permanent injunction against them. Concluding that Landmarks had no private cause of action to seek the injunction, we reverse, vacate the injunction, and dismiss for failure to state a cause of action. I. In October 1971, the city applied for a federal open-space land grant under title IV of the Housing and Urban Development Act of 1970, Pub.L. 91-609, 84 Stat. 1770 (1970) (“HUD Act” or “Act”), reprinted in 1970 U.S.C.C.AN. 2069, 2083-87. These grants were provided for the creation and maintenance of open-space areas inside urban centers. See HUD Act § 701. One of the uses for which grants were available was for “historic and architectural preservation.” See id. § 702(b)(4). The grant application proposed that the city turn a parking lot into the Joan of Arc Plaza, a public area that would showcase a statue of Joan of Arc and a pair of cannons. The statue and cannons were gifts from France. The city ultimately obtained the grant and built the plaza. Congress terminated the open-space land program in 1975, but it did not explicitly repeal § 705. This section required the approval of the Secretary of the Interior — not HUD — prior to the conversion of grant-assisted sites involving “historic or architectural” purposes to uses other than those proposed in the grant application. See id. § 705. On December 5, 1994, bulldozers, under Harrah’s direction, began clearing the Joan of Arc Plaza, but without harming the statue or cannons. Landmarks obtained a temporary restraining order (“TRO”) enjoining the defendants from converting the plaza to something other than its allegedly historic purposes. After a hearing, the district court issued a permanent injunction, along the same lines as the TRO, against the defendants. The defendants moved to amend the judgment so that it would affect a narrow, precisely-defined area, and the court granted this motion. The defendants now appeal the permanent injunction, and Landmarks cross-appeals the amendment. II. It is undisputed that Congress did not expressly provide for a private right of action in passing the HUD Act. If any such cause of action exists, it must be one implied by the statute. The defendants argue that the Act implied no such right of action. Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975), established a four-factor test for determining whether a federal statute implies a private right of action: (1) Is this plaintiff a member of the class for whose “especial” benefit the statute was passed? In other words, does the statute create a federal right for this plaintiff? (2) Is there any evidence of legislative intent, either explicit or implicit, to create or deny a private remedy? (3) Is it consistent with the legislative scheme to imply a private remedy? (4) Is the cause of action one traditionally relegated to state law so that implying a federal right of action would be inappropriate? See also Resident Council of Allen Parkway Village v. HUD, 980 F.2d 1043, 1053 (5th Cir.) (applying Cort test), cert. denied, — U.S. -, 114 S.Ct. 75, 126 L.Ed.2d 43 (1993). Furthermore, the Court explained in Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979), that the touchstone of the Cort analysis is the second factor, Congressional intent. See id. at 568, 99 S.Ct. at 2485; see also Allen Parkway, 980 F.2d at 1054; Abate v. Southern Pac. Transp. Co., 928 F.2d 167, 169 (5th Cir.1991) (quoting Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988)). When analyzing a federal statute, we begin with the familiar presumption “that Congress did not intend to create a private right of action.” Allen Parkway, 980 F.2d at 1053. Generally, a plaintiff asserting an implied right of action under a federal statute “ ‘bears the relatively heavy burden of demonstrating that Congress affirmatively contemplated private enforcement when it passed the relevant statute.”’ Id. (quoting Victorian v. Miller, 813 F.2d 718, 721 (5th Cir.1987) (en banc)). Landmarks has failed to carry this burden. A. Under the first Cort factor, we ask whether the plaintiff belongs to an identifiable class of persons upon whom the statute has conferred a substantive right. Abate, 928 F.2d at 169; see Cannon v. University of Chicago, 441 U.S. 677, 690, 99 S.Ct. 1946, 1954, 60 L.Ed.2d 560 (1979). Even if a plaintiff can demonstrate membership in such a class, however, the crucial inquiry remains one of Congressional intent—i.e., whether Congress actually intended to create a private remedy. See Thompson, 484 U.S. at 179, 108 S.Ct. at 516; Touche Ross, 442 U.S. at 568, 99 S.Ct. at 2485; Abate, 928 F.2d at 169 (quoting Thompson). In answering the question of Congressional intent, “as with any case involving the interpretation of a statute, our analysis must begin with the language of the statute itself.” Touche Ross, 442 U.S. at 568, 99 S.Ct. at 2485 (citations omitted). In this case, Landmarks cannot demonstrate that it is a member of a class for whose special benefit the Act was passed. In the Act’s statement of findings and purpose, Congress stated that the grant program established under the Act was intended to help curb urban sprawl and prevent the spread of urban blight and deterioration, to encourage more economic and desirable urban development, to assist' in preserving areas and properties of historic or architectural value, and to help provide necessary recreational, conservation, and scenic areas by assisting State and local public bodies in taking prompt action to [inter alia ] ... acquire, improve, and restore areas, sites, and structures of historic or architectural value____ HUD Act § 701(d). To the extent that there might be an identifiable class of “persons” mentioned in this statute, it would consist of “[s]tate and local public bodies”—not historical preservation societies such as Landmarks. This conclusion is supported by the fact that the statute explicitly defines the terms “State” and “local public body.” See HUD Act § 709. It is both true and insufficient that historical preservation societies are “a class that stands to gain some benefit from the regulations and penalties promulgated under these provisions.” Abate, 928 F.2d at 169. The statute, however, focuses on Landmarks “only diffusely.” id. In other words, it does not focus on historical preservation societies any more than it “focuses” on citizens at large. Rather, the Act’s provisions are framed “ ‘as a general prohibition or a command to a federal agency.’” Id. (quoting Universities Research Ass’n, Inc. v. Coutu, 450 U.S. 754, 772, 101 S.Ct. 1451, 1462, 67 L.Ed.2d 662 (1981)). The Act directs the Secretary of Housing and Urban Development (“HUD”) — with some assistance from the Secretary of the Interior — to execute a regulatory scheme consisting of (1) federal financial assistance to state and local public bodies and (2) restrictions attached to that assistance. This grant program, prior to its termination, sought to benefit urban areas and communities generally. While Landmarks, like any ordinary citizen, may derive an indirect benefit from the enforcement of the regulatory scheme, that attenuated benefit does not rise to the level required to support implication of a private right of action. See id. Landmarks therefore has failed to establish that it falls within an identifiable class of persons for whose special benefit the Act was passed. Because Touche Ross instructs us that Congressional intent is always the critical inquiry in an implied-right-of-action analysis, see 442 U.S. at 568, 99 S.Ct. at 2485, we consider that Cort factor as well. B. The most telling indicator of Congressional intent regarding this grant program is Congress’s termination of it as of January 1, 1975. See 42 U.S.C. § 5316(a) (1995) (prohibiting new grants or loans after January 1, 1975, under — inter alia — title VII of the Housing Act of 1961). While Congress did not explicitly repeal § 705 — the provision governing conversion of grant-assisted land to other uses — it did decide to pursue a different legislative agenda regarding open-space land and to eliminate the grant program. Given the Supreme Court’s general disapproval of implied private rights of action, it would be anomalous to infer one from a defunct federal grant program. Furthermore, the provisions of the statute are framed “ ‘as a general prohibition or a command to a federal agency.’ ” Abate, 928 F.2d at 169 (quoting Coutu, 450 U.S. at 772, 101 S.Ct. at 1462). Like the statute at issue in Abate, this one “creates no rights in favor of individuals”; rather, it “imposes duties on a federal agency and grants the agency the power to fulfill those duties.” Id. Stated concisely, the language of the HUD Act is “duty-creating,” not “right-creating” like the statute in Cannon. See id. at 169 n. 3 (quoting title IX of the Education Amendments of 1972 (“title IX”), the statute from which the Cannon Court inferred a right of action). And, as the Cannon Court stated, “the right- or duty-creating language of the statute has generally been the most accurate indicator of the propriety of implication of a cause of action.” Cannon, 441 U.S. at 690 n. 13, 99 S.Ct. at 1954 n. 13. Moreover, we must not overlook the fact that this is a federal funding statute. As stated in the Act itself, Congress’s purpose in enacting this statute was to “assist” state and local public bodies in creating and maintaining open-space land in urban areas. HUD Act § 701(d). The statute created a grant program composed of federal-state and federal-locality partnerships, each of which properly was characterized as a contract between the federal government and a state or local public body. Cf. Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981) (stating that “legislation enacted pursuant to [Congress’s] spending power is much in the nature of a contract”). When dealing with a classic federal funding statute like this one, inferring a private right of action is disfavored: “[A]s a general rule, courts have been reluctant to infer a congressional intent to create private rights under appropriations measures.” Allen Parkway, 980 F.2d at 1052. Thus, courts generally should decline to entertain claims by private persons that a state or local public body is not complying with a federal-state contract. “In legislation enacted pursuant to the spending power, the typical remedy for state noneompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.” Pennhurst, 451 U.S. at 28, 101 S.Ct. at 1545. In this case, because federal funds were given to the city as a one-time grant, Congress provided other means of enforcing the terms of the federal-state contract. It is apparent from the structure and text of the statute that Congress committed administration of the grant program to the Secretary of HUD, who was to be assisted in some capacities by the Secretary of the Interior. Sections 701 to 709 of the Act repeatedly refer to the Secretary of HUD, carefully describing his duties in administering the grant program. Conspicuously absent is any mention of private, third-party enforcement of this contract between the federal government and the city. Rather, enforcement of the terms of the contract is committed to the executive authority of the Secretary of HUD. In Former Special Project Employees Ass’n v. City of Norfolk, 909 F.2d 89 (4th Cir.1990), the court held that the Model Cities Act — another HUD grant program — did not imply a private right of action. See id. at 92-93. The court cited approvingly cases from the Ninth and Eleventh Circuits holding that “funding statutes typically are not sufficiently focused on the benefiting class to confer federal rights on the members of the class.” Id. at 92. The court also quoted with approval the language from Pennhurst disavowing implied private rights of action for noncompliance with the terms of a federal-state contract. See id. at 93. The structure and language of § 705 constitute overwhelming evidence that Congress did not contemplate — let alone authorize — private enforcement of the open-space land program. Where analysis of the first two Cort factors leads to the conclusion that Congress did not intend to create a private right of action, we need not address the other two Cort factors. See California v. Sierra Club, 451 U.S. 287, 298, 101 S.Ct. 1775, 1781, 68 L.Ed.2d 101 (1981) (citing Touche Ross, 442 U.S. at 574-76, 99 S.Ct. at 2488-89). We therefore hold that § 705 does not imply a private right of action. Accordingly, we REVERSE, VACATE the permanent injunction, and render a judgment of dismissal for failure to state a cause of action. Landmarks’s cross-appeal regarding the scope of the injunction is DISMISSED as moot. . Title IV of the 1970 act enacted the open-space land program at issue here. Section 401, the only section in title IV, amended title VII of the Housing Act of 1961. Section 401 replaced the existing text of title VII with nine new sections numbered from 701 to 709. See 1970 U.S.C.C.A.N. at 2083-87. These 700-series section numbers actually refer to sections of the 1961 act, the sections added by the 1970 amendments. While Landmarks is formally suing under § 401 of the 1970 act, it is more convenient for us to cite to §§ 701-709 of the 1961 act— when referring to portions of the 1970 amendments — than it would be to cite to § 401 of the 1961 act. Thus, while we cite to sections of the 1961 act, we are formally interpreting the 1970 amendments to the 1961 act. . This section states: “No open-space land involving historic or architectural purposes for which assistance has been granted under this title shall be converted to use for any other purpose without the prior approval of the Secretary of the Interior.” HUD Act § 705. This section, while never repealed, has been omitted from the United States Code because of the termination of the grant program. See 42 U.S.C.A. § 1500c-l (West 1994). .Landmarks did not respond in its appellate brief to the defendants’ private-right-of-action argument, except for a single conclusionary reference in the text of its brief and a single accompanying footnote. It contended that the defendants had waived this argument below when they purported to waive their standing argument. We cannot help but find Landmarks’s position puzzling. Standing is a concept distinct from the concept of private rights of action. Furthermore, to the extent that Landmarks erroneously analyzed the implied-cause-of-action argument as a standing argument, it should have known that standing is jurisdictional and, therefore, non-waivable. Landmarks’s decision to deem this issue waived has left us with only the benefit of the defendants’ briefing and argument. . We emphasize that we are not suggesting that the statute implies a private right of action in favor of state and local public bodies. Rather, we simply point out that the only “persons” identified in the text of the statute are state and local public bodies. . In contrast to the statute here, title IX of the Education Amendments of 1972 — the statute from which the Cannon Court inferred a private right of action — created a direct benefit for an identifiable class of persons: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance....” 20 U.S.C. § 1681(a) (1990). This language has not been amended since the decision in Cannon. . In explaining the proposition that a stream of indirectly derived benefits does not flow from a private cause of action, the Abate court offered three supporting citations: Till v. Unifirst Fed. Sav. & Loan Ass'n, 653 F.2d 152, 158 (5th Cir. Unit A 1981); United States v. Capeletti Bros., Inc., 621 F.2d 1309, 1314 (5th Cir.1980); and Rogers v. Frito Lay, Inc., 611 F.2d 1074, 1079-80 (5th Cir.), cert. denied, 449 U.S. 889, 101 S.Ct. 246, 66 L.Ed.2d 115, and cert. denied, 449 U.S. 889, 101 S.Ct. 246, 66 L.Ed.2d 115 (1980). Abate, 928 F.2d at 169. Prior to our decision in Abate, we had characterized these cases as “decisions in which this court denied private rights of action under statutes that imposed duties of enforcement upon federal departments and agencies." Hondo Nat’l Bank v. Gill Sav. Ass’n, 696 F.2d 1095, 1100 (5th Cir.1983) (emphasis added). . Nothing in Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), diminishes the force of this language from Pennhurst as it applies here. Franklin considered the availability of money damages as a remedy for violations of title DC. See id. at 62-63, 112 S.Ct. at 1030-31. While the Court acknowledged that the language from Pennhurst limited the remedies available under federal funding statutes in cases of unintentional discrimination, it declined to extend that limitation to cases of intentional discrimination. See id. at 74, 112 S.Ct. at 1037. This apparent limitation of Pennhurst speaks only to the availability of remedies where a statutory right of action already exists, as in the case of title DC. Indeed, as the Franklin Court itself stated, “the question of what remedies are available under a statute that provides a private right of action is ‘analytically distinct’ from the issue of whether such a right exists in the first place.” Id. at 65-66, 112 S.Ct. at 1032 (quoting Davis v. Passman, 442 U.S. 228, 239, 99 S.Ct. 2264, 2273, 60 L.Ed.2d 846 (1979)). Thus, nothing in Franklin casts any doubt on our general rule, see Allen Parkway, 980 F.2d at 1052, that inferring private rights of action from appropriations measures is disfavored.

Boarhead Corp. v. Erickson

OPINION OF THE COURT HUTCHINSON, Circuit Judge. This appeal presents the conflicting demands two federal statutes — the National Historic Preservation Act of 1966 (Preservation Act), as amended, 16 U.S.C.A. §§ 470 to 470w-6 (West 1985 & Supp.1990), and the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), as amended, 42 U.S.C.A. §§ 9601-9675 (West 1983 & Supp.1990)— place upon the Environmental Protection Agency (EPA) when the EPA decides to conduct preclean-up studies on a Superfund site that is also eligible to be listed as a historic place. We must determine whether the district court had jurisdiction to hear a property owner’s request, brought pursuant to the Preservation Act, to stay • the EPA’s CERCLA-related preclean-up activities until the EPA conducts appropriate review under § 106 of the Preservation Act, 16 U.S.C.A. § 470f. The property owner, Boarhead Corporation (Boarhead), owns a farm. American Indians who once roamed the region used part of the farm as a burial ground. In this century, Boarhead exposed parts of the farm to toxic waste. Boarhead now says the Indian remains and artifacts should be protected before work can begin to remove the poisons now present on its land. The district court dismissed Boarhead’s complaint against Edwin B. Erickson, Regional Administrator of the EPA, for lack of subject matter jurisdiction. See Boarhead Corp. v. Erickson, 726 F.Supp. 607 (E.D.Pa.1989). It held that the complaint must be dismissed because it did not meet the timing procedures for judicial review specified in § 113(h) of CERCLA, 42 U.S. C.A. § 9613(h). Relying on the reasoning of Bywater Neighborhood Ass’n v. Tricarico, 879 F.2d 165 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1296, 108 L.Ed.2d 474 (1990), the district court concluded that the Preservation Act did not trump § 113(h)’s jurisdictional limitations and that any claim Boarhead may have against the EPA or its officials under the Preservation Act can be asserted only in accordance with § 113’s review procedures. Boarhead says this ruling desecrates the remains of the Indians who first inhabited the region and risks destruction of the farm’s historical and archaeological value. Although the argument in favor of protecting our Indian heritage does not lack force even when advanced by a polluter, we hold that the district court did not err when it dismissed Boarhead’s complaint against Erickson for lack of subject matter jurisdiction. While a district court normally has federal question jurisdiction pursuant to 28 U.S.C.A. § 1331 (West Supp.1990) in a complaint arising under the Preservation Act and while the Administrative Procedures Act (APA), 5 U.S.C.A. §§ 701-706 (West 1977), establishes a presumptive right to judicial review, these normal means of review are not available when CERCLA is involved. The plain language of CERCLA §113 shows that Congress intended to deny the district courts jurisdiction to hear complaints challenging the EPA’s Superfund clean-up or preclean-up activities, even if a statute other than CERCLA ordinarily would create a federal claim. Similarly, the presumptive right to judicial review under the APA disappears because § 113 clearly precludes such review at this time. Boarhead’s claim that the Indian remains or the artifacts on the land may suffer irreparable harm from delayed review of its complaint is unavailing. In § 113 Congress explicitly limited a district court’s power to hear Boarhead’s request for equitable relief while the EPA is continuing to perform clean-up related activities. Boarhead’s complaint does not fall within any of the five exceptions enumerated in § 113(h), and therefore the district court had no jurisdiction to entertain Boarhead’s action. Because § 113 clearly deprives the district court of jurisdiction, we will affirm the district court’s order dismissing Boarhead’s complaint. I. Boarhead Farm is a 118 acre tract of land Boarhead owns in upper Bucks County, Pennsylvania, near the Delaware Canal. Title to the property traces to a grant from William Penn. A late eighteenth century, largely stone farmhouse is part of the farm, stone field walls traverse the property and there may be archaeological or historical remains on the land. Boarhead says that the farm is eligible to be listed on the National Register of Historic Places. Most of the Boarhead Farm property is used as gamelands, but the developed portion includes a private residence, a horse farm and a machinery servicing/repair shop for construction and transport vehicles. Adjacent to the gamelands are two large automobile graveyards. In the early- and mid-1970’s, three or four serious chemical spills from trucks hauling chemicals and waste for Boarhead’s president occurred on the property. On March 31, 1989, after concluding that there was a significant risk that hazardous substances would be released at Boarhead Farm and after giving interested parties the appropriate notice and comment period, the EPA designated the property as a Superfund site on its National Priorities List. Thereafter, on May 18, 1989, the EPA sent Boarhead a letter telling Boarhead that the EPA intended to conduct several studies to determine the extent of the problem and that it considered Boarhead a “potentially responsible party” for the contamination. See Appellant’s Appendix (App.) at 22. The intended studies would include a Remedial Investigation and Feasibility Study (RI/FS) for remedial action. Depending on what was discovered, the EPA explained that it could take other responsive steps under CERCLA, including “expedited response actions,” “emergency removal actions” and “implementing the EPA-approved remedial option.” Id. at 23. Boarhead told the EPA in its reply that Boarhead Farm was eligible to be listed as a historic place and asked the EPA whether it had performed a § 106 review under the Preservation Act. The EPA told Boarhead in a letter dated September 19, 1989, that although it had not conducted a formal § 106 review, any appropriate historic preservation issues would be duly considered as part of its established CERCLA procedures. See App. at 26. Before it received the EPA’s response, Boarhead went to court and filed a complaint in the United States District Court for the Eastern District of Pennsylvania on July 10, 1989. In the complaint Boarhead asked the district court to strike Boar-head’s name from the National Priorities List and sought a stay of any EPA activities affecting Boarhead Farm. Boarhead asserted that the district court had subject matter jurisdiction to issue such an order pursuant to the Preservation Act because Boarhead Farm was a historic piece of property and met the requirements for listing on the National Register of Historic Places. The complaint went on to say that the EPA had failed to conduct a § 106 review, as the Preservation Act and regulations promulgated pursuant to the Act, see 36 C.F.R. §§ 800.1-800.15 (1989), required. Review under § 106 of the Preservation Act was designed to expose federal agencies to expertise the Advisory Council on Historic Preservation and state historic preservation officers provided and to force the agencies to consider alternate approaches to problems in order to minimize the damage to historic property without frustrating the agencies in fulfilling their obligations under federal law. Boarhead asked the district court to prohibit the EPA from taking further action on Boarhead Farm until the EPA completed a § 106 review. Boarhead also requested monetary damages for the EPA’s interference with its right to quiet enjoyment of its property and reasonable attorneys’ fees pursuant to § 305 of the Preservation Act. Erickson, the EPA’s Regional Administrator named as defendant in the suit, moved to dismiss Boarhead’s complaint. He asserted that the district court did not have subject matter jurisdiction over Boar-head’s claims. Alternately, Erickson argued that Boarhead’s complaint was not ripe because the EPA had not yet done anything that would damage any historic resource on Boarhead Farm. On December 15, 1989, the district court issued its order and memorandum opinion granting Erickson’s motion to dismiss. The court held that it did not have jurisdiction to hear Boarhead’s complaint. It wrote: [Boarhead’s] claims in the present action can be asserted only in accordance with § 9613. To the extent [Boarhead] seeks removal of Boarhead Farms from the [National Priorities List], or damages for the listing of Boarhead Farms on the [list], [Boarhead] seeks review of the [list], and can assert its claim only in the Court of Appeals for the District of Columbia Circuit. To the extent that [Boar-head] seeks an order staying the EPA from conducting an RI/FS or other removal or remedial actions on Boarhead Farms, or damages attributed to the prospect of such actions, [Boarhead] prematurely seeks review of the EPA’s anticipated actions. Under § 9613(h), [Boarhead] cannot seek review in a federal court of the EPA’s removal or remedial actions until either an enforcement or cost-recovery action has commenced under §§ 9606 or 9607, or removal and any remedial action has been completed. [Boarhead] alleges, however, only that the “EPA intends to perform or cause the performing of extensive tests, explorations and other activities on Boarhead Farm.” Boarhead Corp., 726 F.Supp. at 611 (footnote omitted). Boarhead has timely appealed to this Court. II. We have appellate jurisdiction pursuant to 28 U.S.C.A. § 1291 (West Supp. 1990) over the district court’s final order granting Erickson’s motion to dismiss and dismissing Boarhead’s complaint. We exercise plenary review over the question of whether the district court lacked jurisdiction to hear Boarhead’s complaint. See York Bank & Trust Co. v. Federal Sav. & Loan Ins. Corp., 851 F.2d 637, 638 (3d Cir.1988), cert. denied, 488 U.S. 1005, 109 S.Ct. 785, 102 L.Ed.2d 777 (1989). As with any motion to dismiss, “[w]e accept as true the facts alleged in the complaint and all reasonable inferences that can be drawn from them.” Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.1990). III. At the outset, the parties to this appeal now agree that the district court was correct when it dismissed that portion of Boarhead’s complaint seeking to have its name removed from the National Priorities List. See Brief for Appellant at 16; Brief for Appellee at 15 n. 15; see also Brief for Amici at 13 & n. 14. The parties are correct. As § 113(a) of CERCLA, 42 U.S.C.A. § 9613(a), provides, review of this action may be had only upon proper and timely application in the United States Court of Appeals for the District of Columbia Circuit. See United States v. Ottati & Goss, 694 F.Supp. 977, 984 (D.N.H.1988), modified on other grounds, 900 F.2d 429 (1st Cir.1990); D’Imperio v. United States, 575 F.Supp. 248, 254 (D.N.J.1983). Boarhead did not make a proper or timely application for removal from the list to the District of Columbia Circuit as CERCLA requires. The acts that give rise to Boarhead’s other claims for relief, however, arose only after its name had been added to the list. The District of Columbia Circuit could not have addressed them within the times set in § 113(a). Therefore, § 113(a) does not mandate dismissal of the entire complaint. Indeed, absent CERCLA, Congress has expressly given all United States district courts jurisdiction to hear claims arising under the Preservation Act and to stay a federal agency’s activities until the historical resource review § 106 of the Preservation Act requires has been conducted. Jurisdiction under the Preservation Act is based on 28 U.S.C.A. § 1331. Section 1331 provides: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C.A. § 1331. This Court, along with other courts of appeals, has recognized that federal question jurisdiction and a private right of action generally exists in actions arising under the Preservation Act. In Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271 (3d Cir.1983), we held that the district court did not err in enjoining the demolition of the Old Stone Academy, which was eligible to be listed on the National Register of Historic Places, until the Department of Housing and Urban Development conducted a historical resource review pursuant to § 106 of the Preservation Act. Although Morris County Trust did not discuss the nature of the district court’s jurisdiction, it is plain that all jurisdictional prerequisites were piet and that the Court properly.' reached the merits of the appeal. Other courts of appeals have reached the merits of appeals dealing with issues arising under the Preservation Act without finding a jurisdictional barrier to review. See, e.g., Lee v. Thornburgh, 877 F.2d 1053 (D.C.Cir.1989); Vieux Carre Property Owners, Residents & Assocs. v. Brown, 875 F.2d 453 (5th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 720, 107 L.Ed.2d 739 (1990); National Center for Preservation Law v. Landrieu, 635 F.2d 324 (4th Cir.1980) (per curiam); WATCH v. Harris, 603 F.2d 310 (2d Cir.), cert. denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979). Thus, there is little question that Boarhead would have a right of action under the NHPA. Indeed, without discussing that precise issue, Morris County Trust assumed such a right in ruling for the Trust as against HUD. Moreover, since § 305 of the Preservation Act, 16 U.S.C.A. § 470w-4, allows a court to award attorneys’ fees and other costs “[i]n. any civil action brought in any United States district court by any interested person to enforce the provisions of [the Preservation Act], if such person substantially prevails in such action,” we agree with the arguments advanced by Boarhead and amici that Congress must have intended to establish a private right of action to interested parties, such as Boarhead, in these situations. See Vieux Carre, 875 F.2d at 458 (holding that a private right of action existed under the Preservation Act against a federal agency); Bywater Neighborhood Ass’n v. Tricarico, 879 F.2d 165, 167 (5th Cir.1989) (citing Vieux Carre), cert. denied, — U.S.-, 110 S.Ct. 1296, 108 L.Ed.2d 474 (1990). ■ The statement of jurisdiction in Boar-head’s complaint said only that the district court had jurisdiction “pursuant to 16 U.S.C. Sections 470 et seq., the National Historic Preservation Act of 1966.” App. at 17. It could have been more artfully drawn. Still, it is sufficient to allege federal question jurisdiction under the Preservation Act. The facts averred and Boar-head’s prayers for relief further support this general statement of jurisdiction. A fair reading of the whole complaint demonstrates that Boarhead bases its claims on several provisions of the Preservation Act, including § 106. In its brief to this Court, Boarhead states that “an enforceifient action under [the Preservation Act] presents a federal question, and Congress has given district courts original jurisdiction over federal questions. See 28 U.S.C. § 1331 (1982).” Brief for Appellant at 14. Professors Wright and Miller note that “a failure to name the particular statute, treaty, or section of the Constitution under which the action arises is not fatal if the remainder of the complaint shows that a federal question actually is involved or relied upon by the pleader.” 5 C. Wright & A. Miller, Federal Practice and Procedure § 1209, at 112-13 (2d ed. 1990). Moreover, “[a] reference to the wrong statute or an erroneous basis of jurisdiction will be corrected by the court if it can determine the appropriate statute or jurisdictional source from the complaint.” Id. § 1210, at 121. See Wymard v. McCloskey & Co., 342 F.2d 495 (3d Cir.) (in banc) (finding jurisdiction under Bankruptcy Act, even though neither party asserted this basis of jurisdiction and complaint was insufficient to allege diversity jurisdiction), cert. denied, 382 U.S. 823, 86 S.Ct. 52, 15 L.Ed.2d 68 (1965). Although the statement of jurisdiction in Boarhead’s complaint does not specifically mention § 1331, it is sufficient to invoke the district court’s federal question jurisdiction, unless CERCLA mandates a contrary conclusion. IV. Erickson argues that any analysis of jurisdiction limited to § 1331 is incomplete since it fails to take into account the jurisdictional limitations that CERCLA imposes. Boarhead’s complaint asserts more than a violation of the Preservation Act. Although the claim is said to arise under the Preservation Act, Erickson asserts that the jurisdictional question must be analyzed under CERCLA since the complaint primarily challenges the EPA’s preclean-up activities at a designated Superfund site. Section 113 of CERCLA, according to Erickson, precludes a district court from exercising jurisdiction under the Preservation Act on Boarhead’s claims, at least at this time. The district court recognized in its memorandum opinion, see 726 F.Supp. at 610, that the plain language of § 113 shows Congress’s intent to limit a private party’s ability to challenge the EPA’s activities under CERCLA until the EPA has completed its clean-up of a hazardous site. Section 113(h) of CERCLA states that [n]o Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section [121 of CERCLA] (relating to cleanup standards) to review any challenges to removal or remedial action selected under section [104 of CERCLA], unless one of five specific situations is present. See 42 U.S.C.A. § 9613(h). It is at once apparent that neither § 1332 nor state law gives the district court jurisdiction to hear Boarhead’s complaint challenging the EPA’s ability to conduct an RI/FS study pursuant to § 104 of CERCLA before the EPA performs an appropriate review under § 106 of the Preservation Act. Furthermore, it is undisputed that Boar-head’s complaint does not meet any of the five exceptions enumerated in § 113(h). The limits § 113(h) imposes on a district court’s jurisdiction are an integral part of Congress’s overall goal that CERCLA free the EPA to. conduct forthwith clean-up related activities at a hazardous site. Congress enacted CERCLA so that the EPA would have the authority and the funds necessary to respond expeditiously to serious hazards without being stopped in its tracks by legal entanglement before or during the hazard clean-up. See Wheaton Indus.. v. United States EPA, 781 F.2d 354, 356 (3d Cir.1986); Lone Pine Steering Comm. v. United States EPA, 777 F.2d 882, 886-87 (3d Cir.1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986); Wagner Seed Co. v. Daggett, 800 F.2d 310, 314 — 15 (2d Cir.1986). The limits § 113(h) establishes are designed to prevent time-consuming litigation from delaying the prompt clean-up of these sites. CERCLA’s language shows Congress concluded that disputes about who is responsible for a hazardous site, what measures actually are necessary to clean-up the site and remove the hazard or who is responsible for its costs should be dealt with after the site has been cleaned up. Besides relying on the language of § 113(h), Erickson also points to the legislative history of CERCLA, citing certain statements made during the congressional debates over CERCLA’s provisions about the timing of the review procedures that ultimately became part of CERCLA through the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, 100 Stat. 1613 (1986). See 132 Cong.Rec. 29,735 (1986) (statement of Rep. Glickman); 132 Cong.Rec. 28,441 (1986) (statement of Sen. Thurmond); 132 Cong.Rec. 28,441 (1986) (statement of Sen. Simpson). As the Supreme Court wrote in Consumer Prod. Safety Comm ’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980): We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive. Congress could hardly have chosen clearer language to express its intent generally to deprive the district court of jurisdiction over claims based on other statutes when the EPA undertakes the clean-up of toxic wastes at a Superfund site. The section begins: “No federal court shall have jurisdiction under federal law_” No language could be plainer. Thus, it is unnecessary for us to rely upon the legislative history that Erickson cites, even though it is consistent with the statute’s plain language. As we wrote in Shendock v. Director, OWCP, 893 F.2d 1458, 1462 (3d Cir.) (in banc), cert. denied, — U.S. — -, 111 S.Ct. 81, 112 L.Ed.2d 53 (1990): “Jurisdiction” is commonly defined as the “power of declaring and administering law or justice; legal authority or power.” 1 The Compact Edition of the Oxford English Dictionary 1522 (1971). The legal definition of “jurisdiction” is similar: “It is the authority by which courts and judicial officers take cognizance of and decide cases.... Power and authority of a court to hear and determine a judicial proceeding.” Black’s Law Dictionary 766 (5th ed. 1979) (citations omitted). Assuming Congress created federally cognizable claims for the preservation of historical sites when it enacted the Preservation Act, there was no requirement that it do so. No constitutional impediment exists to a legislative decision to limit or take away the right of protection the Preservation Act grants. The Preservation Act was the result of the legislative process. So was CERCLA. Unlike the district court, we find it unnecessary to rely on the reasoning of the Fifth Circuit in Bywater Neighborhood Ass’n v. Tricarico, 879 F.2d 165 (5th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1296, 108 L.Ed.2d 474 (1990). In Tricari- co, a neighborhood association sought the removal of a 200-foot television microwave tower and a satellite earth station that it considered inappropriate in a national historic district. The Federal Communications Commission (FCC) had already licensed one of the structures, and the other structure was in the process of being licensed. The essence of the neighborhood association’s complaint was that the FCC had failed to comply with the requirements of the Preservation Act before licensing these two structures. The Fifth Circuit held that the Preservation Act could not be used to circumvent the exclusive procedures for review of licensing decisions that federal law established. It recognized that: some tension exists between section 470w-4 [§ 305 of the Preservation Act], as construed in Vieux Carre, and the specific statutory provisions governing appeals of FCC decisions. We resolve that tension in favor of Congress’s specific and obvious intent to restrict to the circuit courts any appeals from rulings of the FCC. Though we have construed section 470w-4 to create a private right of action that may be brought in “any U.S. District Court,” Vieux Carre, 875 F.2d at 458, we find no intent in the legislative history of that section to override the special provisions concerning the FCC. Tricarico, 879 F.2d at 168. Tricarico is not itself dispositive of our jurisdictional question. That case involved the Federal Communications Act, not CERCLA. Moreover, the neighborhood association .made no showing of irreparable harm. Though the applicable review procedures in the Communications Act may have delayed consideration of the association’s claim under § 106 of the Preservation Act m Tricarico, at some point the association’s complaint would have received adequate consideration in the appropriate court. This is not the case with Boarhead’s complaint, since delayed review may mean no effective review at all. Therefore, although Tricarico’s holding does give some support to our conclusion that the district court has no jurisdiction to hear Boarhead’s complaint because of the limits CERCLA imposes through § 113(h), the differences between the language of the Communications Act and the situation there involved render reliance on Tricarico’s rationale insufficient. We recognize, as Boarhead points out, the possibility that the absence of jurisdiction here may do more than simply delay review of the impact that the EPA’s actions may have on the historical value of the site; indeed, it may destroy or severely damage the site’s historical value. Still, relief must come from Congress. We have considered the fact that the authorities on which Erickson relies deal essentially with challenges to the EPA’s authority under CERC-LA, not with claims premised on other federal statutes in which a party brings a complaint asserting a claim entirely distinct from any interest it may have under CERC-LA. We also recognize that the cases from our Court holding that a district court did not have subject matter jurisdiction to conduct preclean-up judicial review of the EPA’s emergency or remedial action were brought under the alleged authority of CERCLA. See Wheaton Indus., 781 F.2d at 355-56 (action, predicated on § 113(b) of CERCLA, 42 U.S.C.A. § 9613(b), and APA, 5 U.S.C.A. § 704, that sought to enjoin expenditure of Superfund money on particular project since EPA refused to permit plaintiff to perform and control the investigation and clean-up); Lone Pine, 777 F.2d at 884 (complaint, involving CERCLA issues, alleged that EPA’s clean-up plan was too costly, agency had failed to evaluate adequately the plaintiffs clean-up proposal, and EPA’s record of decision contained inaccuracies and erroneous assumptions resulting in unnecessary corrective measures). Although these cases construe § 113(h) to limit the jurisdiction of federal courts to hear actions arising under CERCLA, they do not construe that subsection necessarily to eliminate the jurisdiction a district court would otherwise have to hear a complaint arising under a separate federal statute, such as the Preservation Act. These cases involve typical CERCLA actions in which it is apparent that § 113(h) prohibits legal action until the clean-up of the hazardous site is completed and one of the five situations described in that subsection is present. See, e.g., Wheaton Industries, 781 F.2d at 356; Lone Pine, 777 F.2d at 886-88; Southern Pines Assocs. ex rel. Goldmeier v. United States, 912 F.2d 713, 716 (4th Cir.1990); Schalk v. Reilly, 900 F.2d 1091, 1095-97 (7th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 509, 112 L.Ed.2d 521 (1990); Alabama v. United States EPA, 871 F.2d 1548, 1557-59 (11th Cir.), cert. denied, — U.S.-, 110 S.Ct. 538, 107 L.Ed.2d 535 (1989); Wagner Seed v. Daggett, 800 F.2d 310, 314-15 (2d Cir.1986); Barnes v. United States Dist. Court, 800 F.2d 822 (9th Cir.1986); J.V. Peters & Co. v. Administrator, EPA, 767 F.2d 263, 164-65 (6th Cir.1985). Construction of § 113(h) to preclude jurisdiction when the complaint is based on the Preservation Act, not CERCLA, and irreparable harm could occur if subject matter jurisdiction were denied until the EPA completed its clean-up activities poses a more difficult case. In Boarhead’s situation post clean-up review is likely to be inadequate to redress harm that occurred to archaeological and historical resources on Boarhead Farm during the EPA’s clean-up. Nevertheless, the statute’s plain language eliminates Boar-head’s opportunity to obtain judicial review even in such circumstances. Boarhead also argues that our decision in Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231 (3d Cir.1980), cert. denied, 449 U.S. 1096, 101 S.Ct. 893, 66 L.Ed.2d 824 (1981), controls this case. In Susquehanna Valley, we held that the district court had immediate jurisdiction to review a challenge to the Nuclear Regulatory Commission’s informal decision to authorize the owner of a nuclear power plant to- discharge contaminated water into the Susquehanna River, even though the National Environmental Policy Act (Environmental Policy Act), 42 U.S. C.A. §§ 4321-4347 (West 1977 & Supp. 1990), and the Commission’s regulations provided for eventual review in the court of appeals after the Commission issued a final order. See 619 F.2d at 239-41. We also held that the plaintiffs were not required to exhaust all available administrative review procedures, because administrative review would be inadequate to prevent an illegal discharge from occurring. See id. at 245. See also Izaak Walton League of Am. v. Schlesinger, 337 F.Supp. 287, 291-93 (D.D.C.1971) (district court had jurisdiction over action seeking to compel Atomic Energy Commission (AEC) to prepare an environmental impact statement, as the Environmental Policy Act required, even though statute established exclusive jurisdiction in court of appeals for review of final AEC orders, because review was unavailable or inadequate in court of appeals). In Susquehanna Valley we refused to construe the Environmental Policy Act and associated regulations in a way that would deny the plaintiffs adequate judicial review of their complaint. However, the statute there, unlike § 113(h), did not expressly preclude jurisdiction. CERCLA’s timing of review procedures, as established in § 113(h), clearly preclude jurisdiction to delay or interfere with EPA clean-up activities even if those activities could irreparably harm the archaeological or historical resources on Boarhead Farm. Although post-study judicial review cannot rectify damage to historical artifacts or remains on this landmark site that occurs in the course of the EPA’s clean-up, we must presume Congress balanced the problem of irreparable harm to such interests and concluded that the interest in removing the hazard of toxic waste from Superfund sites outweighed it. Boarhead’s remedy lies with Congress, not the district court. The prohibition on jurisdiction includes a prohibition on equitable relief. Section 113(h) prohibits the district court from hearing Boarhead’s complaint at this time, before the EPA takes any further action on Boar-head Farm. V. Boarhead and the amici also argue that the EPA’s alleged violations of the Preservation Act are presumptively subject to judicial review under the APA. The APA, in § 702, states that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” For purposes of § 702, “agency action” includes the failure to act. See 5 U.S.C.A. § 701(b)(2) (cross-referencing 5 U.S.C.A. § 551(13) (West 1977)). Judicial review is not available under the APA when another statute, such as CERC-LA, precludes such review, see 5 U.S.C.A. § 701(a)(1). Boarhead and the amici argue that there is no clear and convincing evidence that Congress intended CERCLA to preclude review in this situation, where Boarhead’s complaint arises under the Preservation Act and irreparable harm may occur before any review would be permitted under § 113 of CERCLA. It is well-established that “only upon a showing of clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967) (quoting Rusk v. Cort, 369 U.S. 367, 380, 82 S.Ct. 787, 794, 7 L.Ed.2d 809 (1962)). For further support, Boarhead and the amici rely on 5 U.S.C.A. § 703: The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction_ Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement. Id. § 703 (emphasis added). Boarhead and the amici argue that since the review procedures specified in § 113 of CERCLA are inadequate to protect historic preservation concerns important to Boarhead, § 703 provides Boarhead with a right to obtain judicial review of Erickson’s actions. Boarhead and the amici’s argument that § 702 and § 703 provide Boarhead with a right to judicial review in this situation also runs afoul of the plain language of § 113(h). We cannot understand what clearer evidence could be provided than this language. See Note, Statutory Preclusion of Judicial Review under the Administrative Procedures Act, 1976 Duke L.J. 431. Thus, Boarhead’s argument that APA review of violations of the Preservation Act is normally available has no force under CERCLA. We do not think this conclusion is inconsistent with Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946) (resolution of the question of whether a right of action exists in a particular situation is separate from the question of whether a district court has jurisdiction to hear a complaint at all). In Bell, the Supreme Court observed: Jurisdiction ... is not defeated ... by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that allegations'in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction. Id. at 682. See also Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 675-78, 94 S.Ct. 772, 781-83, 39 L.Ed.2d 73 (1974); Wheeldin v. Wheeler, 373 U.S. 647, 649, 83 S.Ct. 1441, 1443, 10 L.Ed.2d 605 (1963). The problem here is not the possibility that Boarhead’s action under the Preservation Act may fail. Instead, our resolution of this appeal depends upon the inability of the district court to entertain an action under the Preservation Act because § 113(h) of CERCLA deprives it of the power to hear claims under the Preservation Act, or any other statute, that would interfere with EPA’s clean-up activities on a Superfund site. VI. For the foregoing reasons, we hold that the district court did not have jurisdiction to hear Boarhead’s complaint against Erickson. Therefore, we will affirm the district court’s order dismissing Boarhead’s complaint for lack of jurisdiction. . CERCLA established a trust fund, which is commonly known as "Superfund." See Exxon Corp. v. Hunt, 475 U.S. 355, 359, 106 S.Ct. 1103, 1107, 89 L.Ed.2d 364 (1986). Money from the Superfund is used to clean-up sites where hazardous substances have been released. See id. . Section 106 of the Preservation Act reads: The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470v of this title a reasonable opportunity to comment with regard to such undertaking. 16 U.S.C.A. § 470f. . Section 113(h) of CERCLA provides: No federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, in any action except one of the following: (1) An action under section 9607 of this title to recover response costs or damages or for contribution. (2) An action to enforce an order issued under section 9606(a) of this title or to recover- a .penalty for violation of such order. (3) An action for reimbursement under section 9606(b)(2) of this title. (4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site. (5) An action under section 9606 of this title in which the United States has moved to compel a remedial action. 42 U.S.C.A. § 9613(h). Boarhead’s complaint does not fit into any of these five enumerated exceptions. . We note that certain regulations the EPA has promulgated, as well as more comprehensive regulations that the EPA currently is considering, should minimize the harm that Boarhead could suffer from delayed review. See infra note 17. . In a letter dated October 23, 1989, and addressed to the EPA, the Pennsylvania Historical and Museum Commission (the primary historic preservation bureau in the state) agreed with Boarhead that the farm was eligible to be listed on the National Register because there was a high probability that the property contains historic and prehistoric archaeological resources. See Addendum to Brief for Amici. .In a letter dated September 19, 1989, the EPA asked Boarhead to provide evidence that the farm is eligible to be listed on the National Register of Historic Places. The letter stated: [P]ursuant to the authority of CERCLA Section 104(e), 42 U.S.C. Section 9604(e), EPA hereby requests that Boarhead Corporation provide EPA with any information that it has to support the contention that the Site, or any portion thereof, is eligible for listing on the [National Register] or is otherwise a sensitive cultural resource. Please provide any such comments within 10 days of the receipt of this letter to the undersigned. The Agency has also requested the comments of the Pennsylvania Historic Preservation Officer and Bucks County Historical Society on this matter. App. at 26. The EPA sent similar letters to the Pennsylvania Historic Preservation Officer, who is in charge of the Pennsylvania Historical and Museum Commission, an amicus curiae in this case, and to the Executive Director of the Bucks County Historical Society. The letters requested their views “on the existence of or means to identify any properties at or near the [Boarhead Farm] Site that are listed, or eligible for listing, on the [National Register].” Id. at 28, 30. . In its complaint, Boarhead also alleged that the EPA violated the Preservation Act when it failed to conduct a § 110 review. Since § 110 of the Preservation Act, 16 U.S.C.A. § 470h-2, deals with property the federal government owns or controls, it does not apply to Boarhead Farm. Boarhead, apparently realizing this, has not pursued this issue on appeal. . Section 305 of the Preservation Act reads: In any civil action brought in any United States district court by any interested person to enforce the provisions of this subchapter, if such person substantially prevails in such action, the court may award attorneys’ fees, expert witness fees, and other costs of participating in such action, as the court deems reasonable. 16 U.S.C.A. § 470w-4 (as added by Pub.L. No. 96-515, Title V, § 501, 94 Stat. 3002 (1980)). .Specifically, Erickson relied on several subsections of § 113 of CERCLA, 42 U.S.C.A. § 9613, in support of his assertion that the district court lacked jurisdiction over Boarhead’s complaint. With respect to the request to stay the EPA’s activity on Boarhead Farm until a § 106 review was conducted, he relied on § 113(h). As has been noted, see supra note 3, Boarhead’s complaint did not fit into any of the five exceptions specified in that subsection. As for Boarhead’s request to strike its name from the National Priorities List, Erickson relied on § 113(a): Review of any regulation promulgated under this chapter [i.e., under CERCLA] may be had upon application by any interested person only in the Circuit Court of Appeals of the United States for the District of Columbia. Any such application shall be made within ninety days from the date of promulgation of such regulations. Any matter with respect to which review could have been obtained under this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement or to obtain damages or recovery of response costs. 42 U.S.C.A. § 9613(a). Placement of a site on the National Priorities List is treated as the promulgation of a regulation. See D’Imperio v. United States, 575 F.Supp. 248, 254 (D.N.J.1983). He noted that Boarhead’s complaint was not filed in the District of Columbia Circuit, nor was it filed within 90 days of when Boarhead Farm was added to the National Priorities List. . Because the district court held that Boar-head’s complaint should be dismissed for lack of jurisdiction, it did not directly confront Erickson’s argument that the dispute was unripe. See Boarhead Corp., 726 F.Supp. at 613. . Erickson argues that the portion of Boar-head’s brief quoted in the text is misleading, since § 1331, standing alone, does not authorize an action against an official of the EPA in the absence of a waiver of the government's sovereign immunity. See Brief for Appellee at 20 n. 16. He cites Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1385 (5th Cir.1989), where the Fifth Circuit stated that § 1331 implies no general waiver of sovereign immunity and thus a chemical manufacturer could not rely upon it as the basis for jurisdiction in a declaratory judgment action against the EPA. In Voluntary Purchasing Groups, a chemical manufacturer sought a declaration that it was not liable for certain clean-up costs the EPA expended pursuant to CERCLA. The government has waived sovereign immunity insofar as the APA gives Boarhead a right to judicial review. See 5 U.S.C.A. § 702: An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in a official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States.... In addition, § 305 of the Preservation Act waives sovereign immunity insofar as Boarhead seeks attorneys’ fees in connection with this action. See Morris County Trust for Historic Preservation v. Pierce, 730 F.2d 94 (3d Cir.1983). In Jaffee v. United States, 592 F.2d 712, 718-19 (3d Cir.), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979), we held that 5 U.S.C.A. § 702, as amended, waives sovereign immunity in equitable actions brought under § 1331 seeking "nonstatutory” review of agency action. "Nonstatutory” review describes those situations where a party's suit is not brought under a statute that explicitly provides for review of agency action. See id. at 718 n. 12. Other courts of appeals have agreed that § 702, as amended, waives the defense of sovereign immunity for injunctive actions brought pursuant to § 1331. See B.K. Instrument, Inc. v. United States, 715 F.2d 713, 724-25 (2d Cir.1983); Warin v. Director, Dep't of the Treasury, 672 F.2d 590 (6th Cir.1982) (per curiam); Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564 (10th Cir.1981); Sheehan v. Army & Air Force Exch. Serv., 619 F.2d 1132, 1139 (5th Cir.1980), rev’d on other grounds, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982). Erickson's argument that sovereign immunity is not waived here because CERCLA overrides the APA’s presumptive right to judicial review under 5 U.S.C.A. § 701(a)(1) does no more than ring the changes on his primary argument that § 113 of CERCLA eliminates the jurisdiction a district court may otherwise have to hear a case arising under the Preservation Act. It is simply another way of saying that § 113(h) prohibits a district court from hearing Boarhead’s complaint at this time. We thus will address the jurisdictional aspect of Erickson’s argument first, because its resolution makes it unnecessary to address separately the sovereign immunity component of that same argument. . On appeal to this Court, Boarhead relies in part on certain historic preservation statutes enacted in the State of Pennsylvania. Since Boarhead's complaint was premised on the federal Preservation Act, not on state law, we will not consider these arguments. We do note that Erickson is immune from suit based on state regulatory statutes like those Boarhead mentions absent a clear waiver of sovereign immunity. See Hancock v. Train, 426 U.S. 167, 178— 79, 96 S.Ct. 2006, 2012-13, 48 L.Ed.2d 555 (1976); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819). . We cannot treat Boarhead’s complaint as a citizens suit under 42 U.S.C.A. § 9659, which in certain situations is not subject to the limits on jurisdiction § 113(h) imposes. See 42 U.S.C.A. § 9613(h)(4). Section 9659 provides: (a) Authority to bring civil actions Except as provided in subsections (d) and (e) of this section [requiring 60-day notice before a complaint is filed] and in section [113(h) of CERCLA] (relating to timing of judicial review), any person may commence a civil action on his own behalf— (1) against any person (including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter ...; or (2) against the President or any other officer of the United States (including the Administrator of the Environmental Protection Agency ...) where there is alleged a failure of the President or of such other officer to perform any act or duty under this chapter ... which is not-discretionary with the President or such other officer. (c) Relief The district court shall have jurisdiction in actions brought under subsection (a)(1) of this section to enforce the standard, regulation, condition, requirement, or order concerned ... to order such action as may be - necessary to correct the violation, and to impose any civil penalty provided for the violation. The district court shall have jurisdiction in actions brought under subsection (a)(2) of this section to order the President or other officer to perform the act or duty concerned. 42 U.S.C.A. § 9659(a) & (c) (West Supp.1990). Boarhead does not allege that its complaint against Erickson is a citizens suit, nor did it give the 60-day notice § 9659(d)(1) & (e) require, see, e.g., Hallstrom v. Tillamook County,-U.S. -, 110 S.Ct. 304, 307 n. 1, 107. L.Ed.2d 237 (1989), before filing the complaint. Moreover, the complaint does not allege that Erickson violated any standard, regulation, condition, requirement or order that became effective pursuant to CERCLA, nor does it allege that Erickson failed to perform a nondiscretionary act or duty required under CERCLA. Under these circumstances, we cannot treat Boarhead’s complaint as a citizens suit. Thus, we have no need to consider whether the district court could entertain at this time a citizens suit meeting the requirements of § 9659 of CERCLA. Cf. Alabama v. United States EPA, 871 F.2d 1548, 1557 (11th Cir.) (citizen suit exception to limits in § 113(h) applies only after the action is actually completed by the EPA), cert. denied, - U.S. -, 110 S.Ct. 538, 107 L.Ed.2d 535 (1989). . Boarhead argues in its opening and reply briefs that construction of CERCLA § 113(h) to limit the availability of suits brought pursuant to the Preservation Act, which delay a CERCLA clean-up, effects an implied repeal of a portion of the jurisdiction the Preservation Act provides. The Supreme Court has written that "an implied repeal must ordinarily be evident from the language or operation of a statute.” Kremer v. Chemical Constr. Corp., 456 U.S. 461, 470, 102 S.Ct. 1883, 1891, 72 L.Ed.2d 262 (1982). CERCLA § 113(h) states that “[n]o federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28....’’ Congress did not, however, make an exception to this general jurisdictional bar for suits arising under the Preservation Act. The language of § 113(h) provides "clear and convincing evidence,” see Traynor v. Turnage, 485 U.S. 535, 542, 108 S.Ct. 1372, 1378, 99 L.Ed.2d 618 (1988), that Congress intended CERCLA to limit the availability of suits alleging jurisdiction under the Preservation Act. . The district court relied upon Tricarico's holding when it determined that it did not have jurisdiction to hear Boarhead’s complaint. I find the [Tricarico ] Court’s reasoning equally applicable in this case. Any tension that may exist between a district court’s jurisdiction over claims to enforce the [Preservation Act] against an agency and the specific statutory provisions governing review of EPA actions under CERCLA I resolve in favor of Congress’s obvious intent to restrict jurisdiction over review of EPA actions under CERC-LA. ”[W]here, as here, Congress has established exclusive procedures for judicial review of a particular agency’s actions, [courts] are bound to follow those dictates.” Boarhead Corp., 726 F.Supp. at 612 (quoting Tricarico, 879 F.2d at 169 n. 15). . The Fifth Circuit noted that 28 U.S.C.A. § 2342 (West 1978 & Supp.1990) provides: The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of— (1) all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47; .... Tricarico, 879 F.2d at 167 n. 8. 47 U.S.C.A. § 402(b) (West 1962) provides that in certain enumerated situations, “[ajppeals may be taken from decisions and orders of the [FCC] to the United States Court of Appeals for the District of Columbia....” See Tricarico, 879 F.2d at 167 n. 9. . We note, however, that Erickson does not deny that the EPA is bound by the terms of the Preservation Act in conducting activities under CERCLA. In fact, he argues that the EPA's own regulations provide that it must consider the factors that go into a § 106 review. See CERC-LA Compliance with Other Laws Manual, Part II, Chapter 4, at 4-2 to 4-11 (Interim Final Aug. 1989), reprinted in App. at 34. The EPA properly construes the Preservation Act to require it to consider the historic preservation concerns Boarhead asserts before it takes action pursuant to CERCLA. Therefore, even though we construe § 113(h) to preclude jurisdiction over Boarhead’s complaint, since this would interfere with the EPA's clean-up activities without providing additional protection to the historic preservation interests the Preservation Act establishes, the EPA would be well advised to follow its own regulations and fully consider the impact preclean-up and clean-up activities may have on the historic value of Boarhead Farm and the artifacts and Indian remains buried there. Agency action is entitled to a presumption of regularity. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971); Frisby v. United States Dep’t of Hous. & Urban Dev., 755 F.2d 1052, 1055 (3d Cir.1985). As we wrote in Frisby, 755 F.2d at 1055, "The burden of proof rests with the party alleging irregularity.” Boarhead has not demonstrated on this record that Erickson cannot or will not abide by the EPA’s regulations requiring him to consider the factors that go into a § 106 review. Thus, we do not reach the troubling questions of whether judicial review would be available if Boarhead could show that Erickson failed to comply with the regulations the EPA has promulgated pursuant to CERCLA or whether Boarhead would have standing to bring such a suit. We cannot help but register our disappointment and surprise at the inability of counsel to communicate and to cooperate in working out a plan, pursuant to the EPA’s procedures, which might have obviated this whole litigation. It seems to us a simple matter for the parties to have worked together to formulate a plan for performance of the RI/FS without damage to the artifacts at issue. . In Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231 (3d Cir.1980), cert. denied, 449 U.S. 1096, 101 S.Ct. 893, 66 L.Ed.2d 824 (1981), we emphasized that the rule requiring exhaustion of administrative proceedings was “judge-made.” 619 F.2d at 245. We went on, however, to observe that: Congress can, of course, limit the subject matter jurisdiction of the district court. Id. Here, in § 113(h), Congress has done just that. By expressly precluding federal court review until after the EPA takes further action, Congress has divested the district court of the power to entertain Boarhead's claim. . The First Circuit’s recent opinion in Reardon v. United States, 922 F.2d 28 (1st Cir.1990), supports our conclusion that the district court lacks jurisdiction to consider a pre-enforcement judicial challenge to the EPA’s actions. As the First Circuit stated, “it is clear and incontrovertible that, in enacting CERCLA § 113(h), Congress intended to bar all pre-enforcement judicial review of the EPA’s choice of removal or remedial actions.” Id., at 31 (emphasis in original). Although the First Circuit held that a CERCLA lien is neither a removal nor a remedial action, and that a challenge to such a lien is therefore not barred by § 113(h), its above-quoted analysis is entirely consistent with and supports our conclusion.

Bywater Neighborhood Ass'n v. Tricarico

JERRY E. SMITH, Circuit Judge: The Bywater Neighborhood Association (“Bywater”) seeks the removal of two structures it considers inconsistent with the character of its neighborhood, a national historic district. The two structures are a 200-foot television microwave tower, owned and built by Crescent City Communications Company, Inc. (“Crescent City”), and a satellite earth station, owned and built by Notel Inc. (“Notel”), a firm related to Crescent City. The Federal Communications Commission (“FCC”), together with local authorities, is the regulatory body with authority to issue licenses for the operation of both facilities. The FCC has already issued a license for the' satellite earth facility, now constructed and operational. However, it has “deferred” action on the operating license for the television transmitter, although the tower itself has been built under the “one-step” licensing procedure. The gravamen of Bywater’s complaint is that the FCC failed to adhere to the dictates of the National Historic Preservation Act (“NHPA”) and to its own regulations, which require it to consult with the NHPA Advisory Council with regard to the potential effect the structures might have upon the Bywater National Historic District. Bywater contends that the FCC’s failure in this regard was, in part, the result of Crescent City and Notel’s having withheld important facts concerning the area in which they were to build. Bywater brought this suit against the FCC, Crescent City, and Notel under the Administrative Procedure Act (“APA”), the Declaratory Judgment Act, the National. Historic Preservation Act, and the Mandamus and Venue Act. The district court dismissed the suit for want of subject-matter jurisdiction. We affirm. I. Bywater correctly observes that the NHPA expressly permits private suits outside the APA review process; it points to 16 U.S.C. § 470w-4, which provides that attorneys’ fees, expert witness fees, and other costs may be awarded. In Vieux Carre Property Owners, Residents & Assocs., Inc. v. Brown, 875 F.2d 453, 457-58 (5th Cir.1989), we held that section 470w-4 does in fact create a private right of action that can be brought by any interested person, but only against the agency, since the NHPA, by its terms, can be violated only by an agency. Bywater seeks to compel the FCC’s compliance with the following NHPA provision: [T]he head of any Federal ... agency having authority to license any undertaking shall, ... prior to the issuance of any license, ... take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment with regard to such undertaking. 16 U.S.C. § 470f. Here, however, it is the FCC which Bywater accuses of neglecting its NHPA duties, and in suits against that agency, special rules apply. Those rules are found in 28 U.S.C. § 2342 and 47 U.S.C. § 402(b), which vest exclusive jurisdiction over appeals from the FCC’s final orders in the respective circuit courts of appeals and, in the case of licensing decisions, in the District of Columbia Circuit alone. The Supreme Court has declared that “[ljitigants may not evade these provisions by requesting the District Court to enjoin action that is the outcome of the agency’s order.” FCC v. ITT World Communications, Inc., 466 U.S. 463, 468, 104 S.Ct. 1936, 1939, 80 L.Ed.2d 480 (1984) (citing Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 69, 91 S.Ct. 203, 208, 27 L.Ed.2d 203 (1970)). Yet that is precisely the purpose of Bywater’s suit. The association’s plea before this court is that we “maintain District Court jurisdiction over both facilities so that, in the event that the FCC denies and/or revokes permits for their operation, their removal from the Historic District can be assured.” In ITT World Communications, ITT brought its claim against the FCC under the APA, 5 U.S.C. § 703, arguing that the court of appeals was an inadequate forum because the record had not been fully developed. The Court, rejecting that argument, observed that the court of appeals could remedy any deficiencies in the record with a remand to the agency. 466 U.S. at 469. Hence, the Court declared, the APA was not a proper vehicle for circumventing the special statutory review process. That is not the last word for this case, however, since the private right of action arising under the NHPA might be an alternative basis for Bywater’s suit in district court. Thus, some tension exists between section 470w-4, as construed in Vieux Carre, and the specific statutory provisions governing appeals of FCC decisions. We resolve that tension in favor of Congress’s specific and obvious intent to restrict to the circuit courts any appeals from rulings of the FCC. Though we have construed section 470w-4 to create a private right of action that may be brought in “any U.S. District Court,” Vieux Carre, 875 F.2d at 458, we find no intent in the legislative history of that section to override the special provisions concerning the FCC. We follow the lead of the court in City of Rochester v. Bond, 603 F.2d 927, 931 (D.C.Cir.1979), in recognizing that Congress, acting within its constitutional powers, may freely choose the court in which judicial review may occur.... If ... there exists a special statutory review procedure, it is ordinarily supposed that Congress intended that procedure to be the exclusive means of obtaining judicial review in those cases to which it applies. Indeed, any doubts we might have about Congress’s intent in these matters is resolved in the APA, which states, “The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute.” 5 U.S.C. § 703. For similar reasons, we must also reject the Mandamus and Venue Act and the Declaratory Judgment Act as independent predicates for district court jurisdiction in this case. Aside from our adherence to the general principle that Congress’s exclusive and specific review procedure should be followed, we observe that the Mandamus and Venue Act also fails to confer jurisdiction in that “it is an extraordinary remedy that is not available when review by other means is possible.” Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 78 (D.C.Cir.1984) (citing Kerr v. United States Dist. Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976)). Likewise, where Congress has created a specific mode of judicial review of administrative orders, declaratory relief under 28 U.S.C. § 2201 is not available to those who have not pursued that remedy. See American President Lines, Ltd. v. Federal Maritime Bd., 235 F.2d 18 (D.C.Cir.1956). Our courts “recognized early in the development of administrative agencies that coordination between traditional judicial machinery and these agencies was necessary if consistent and coherent policy were to emerge.” Port of Boston Marine Terminal Ass’n, 400 U.S. at 68, 91 S.Ct. at 208 (citing Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907)). II. For specified litigants appealing FCC orders, courts have interpreted 47 U.S.C. § 402(b) to allow venue only in the District of Columbia Circuit. See FCC v. Columbia Broadcasting Sys., 311 U.S. 132, 136, 61 S.Ct. 152, 153, 85 L.Ed. 87 (1940); Campos v. FCC, 650 F.2d 890, 892 (7th Cir.1981). Bywater’s complaint falls within category (6) of section 402(b), which provides that appeals may be taken before the District of Columbia Circuit “[b]y any other person who is aggrieved or whose interests are adversely affected by any order of the Commission granting or denying any application described in paragraphs (1H4) of this subsection.” In Bywater’s prayer to this court, it admits that it would be “premature,” because Bywater has not yet exhausted its administrative remedies, for this court or the district court a quo to act until the FCC has issued an order with respect to Crescent City’s application and a final order, after entertaining Bywater’s petition to revoke, with respect to Notel’s license. Instead, Bywater asks that we “maintain jurisdiction” until these events have occurred. But if and when those events occur, Bywater’s complaint will fall squarely within section 402(b)(6), and venue will lie only in the District of Columbia Circuit. Hence, any order from our court requiring the district court to “preserve” jurisdiction pending issuance of the FCC’s final orders would be futile. The district court therefore properly dismissed Bywa-ter’s suit. III. The district court correctly determined that it was without jurisdiction to hear this complaint against the FCC. When the FCC’s final orders have been issued, Bywa-ter must follow the path Congress has laid out for judicial review of those decisions. We note that our ruling should in no way be read as a comment on the merits of Bywater’s claims against the FCC. The judgment of the district court is AFFIRMED. .The FCC explains that it also requires a license for the construction of certain types of facilities. However, for both facilities at issue here, "streamlined" application processes were available: Notel was able to submit one application for both the construction and operation of the satellite earth station. For the television microwave tower, Crescent City took advantage of an available “one-step” process under which there is no requirement that the applicant receive a construction permit, although the applicant cannot operate the facility without a license. Applicants that, like Crescent City, use this procedure take the risk that the license will be denied and the structure thereby will become useless for transmitting purposes. . 5 U.S.C. § 701 et seq. . 28 U.S.C. § 2201. et seq. . 16 U.S.C. § 470 et seq. . 28 U.S.C. § 1361. . Section 470w-4 reads, in its entirety. In any civil action brought in any United States district court by any interested person to enforce the provisions of this subchapter, if such person substantially prevails in such action, the court may award attorneys' fees, expert witness fees, and other costs of participating in such action, as the court deems reasonable. . Hence, were it possible for Bywater to go forward with this action, the private defendants, Crescent City and Notel, would be dismissed. . Section 2342 provides. The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of— (1)all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47; . Section 402(b) provides: (b) Appeals may be taken from decisions and orders of the [FCC] to the United States Court of Appeals for the District of Columbia in any of the following cases: (1) By any applicant for a construction permit or station license, whose application is denied by the Commission. (2) By any applicant for the renewal or modification of any such instrument of authorization whose application is denied by the Commission. (3) By any party to an application for authority to transfer, assign, or dispose of any such instrument of authorization, or any rights thereunder, whose application is denied by the Commission. (4) By any applicant for the permit required by section 325 of this title whose application has been denied by the Commission, or by any permittee under said section whose permit has been revoked by the Commission. (6) By any other person who is aggrieved or whose interests Eire adversely affected by any order of the Commission granting or denying any application described in paragraphs (1) — (4) of this subsection. . See South Cent. Bell Tel. Co. v. Louisiana Pub. Serv. Comm'n, 744 F.2d 1107, 1114 (5th Cir.1984) ("the exclusive method for obtaining judicial review of FCC action is a direct appeal to the court of appeals pursuant to [the applicable statute]"). . See infra Part II. . Section 703 provides as follows: The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement. . The House Report states simply, The intent is to ensure that property owners, non-profit organizations and interested individuals who may otherwise lack the means for .court action be awarded reasonable costs for actions taken under this Act. The intent is not to award costs for frivolous suits against Federal agencies. H.R. No. 1457, 96th Cong., 2d Sess. 46 (1980), reprinted in 1980 U.S.Code Cong. & Ad. News 6378, 6409. .Bywater would also have us premise jurisdiction upon the old workhorse, 28 U.S.C. § 1331. But Congress may, as 47 U.S.C. § 402(a) and (b) indicate, narrow that jurisdiction; to the extent that Bywater argues that the district court could retain "residual federal question jurisdiction” on the ground that the agency’s violation might be found a patent abuse of its authority or a manifest infringement of a substantive right, we must reject that jurisdictional basis also. Nothing precludes Bywater from obtaining immediate remedies from the District of Columbia Circuit. See Tennessee Dep’t of Employment Sec. v. Secretary of Labor, 801 F.2d 170, 175 n. 8 (6th Cir.1986). . We note that by such reasoning, we do not thereby defeat any private right of action that may exist against other agencies not in compliance with the NHPA. Nothing in our opinion should be read as precluding Bywater, or similar associations aggrieved by an agency1 s failure to follow the NHPA’s procedures, from bringing suit against that agency in the district court. See, e.g., Vieux Carre (suit against Army Corps of Engineers); Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271, 278-82 (3d Cir.1983) (action against Department of Housing and Urban Development). But where, as here, Congress has established exclusive procedures for judicial review of a particular agency’s actions, we are bound to follow those dictates. See Whitney Nat'l Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411, 422, 85 S.Ct. 551, 558, 13 L.Ed.2d 386 (1965).

Coalition for Responsible Regional Development v. Coleman

DONALD RUSSELL, Circuit Judge: This suit to enjoin the construction of a bridge across the Ohio and Guyandotte Rivers between Huntington, West Virginia and Proctorville, Ohio, was earlier before this Court on appeal from an order denying a preliminary injunction. The factual background for the proceedings is adequately stated in the opinion reversing the District Court’s denial of such injunction and need not be restated here. The action is now before us on appeal from a decree of the District Court on the merits, denying an injunction and dismissing the action. We affirm. The bridge involved in this proceeding is to be entirely state-financed. It, however, would cross a navigable stream. Permission to cross such a stream depends on the issuance of a federal permit under the provisions of the General Bridge Act. Before issuing such a permit, the Secretary must prepare an environmental impact statement (EIS) in compliance with the National Environmental Policy Act; and, since the construction would constitute a use of “park-lands” the Secretary has to make the determinations mandated by § 4(f), Department of Transportation Act, and to comply with the provisions of § 106 of the National Historic Preservation Act. The Secretary prepared an EIS, and made the necessary findings under § 4(f) and § 106. The plaintiffs, attacking the legal validity and sufficiency of the Secretary’s determinations, instituted this action to enjoin the construction of a bridge. After a trial, the District Court, in a carefully reasoned opinion, entered its order from which this appeal by the plaintiffs is taken. It is necessary, as a predicate to a review of the District Court’s order, that we mark out the scope of judicial review in cases such as this one. The standard for judicial review of an administrative decision under either NEPA or § 4(f) of the Transportation Act is declared in Citizens to Preserve Overton Park v. Volpe (1971), 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136. As there declared, the court is to consider first, “whether the Secretary acted within the scope of his authority” and, second, whether the ultimate decision was “ ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” In applying the arbitrary standard, the court must “engage. in a substantial inquiry” in order to determine whether the agency, in its conclusions, made a good faith judgment, after considering all relevant factors, including possible alternative or mitigative measures. In passing on such “good faith” administrative judgment, the court specifically is “not empowered to substitute its judgment for that of the agency.” Environmental Def. F., Inc. v. Corps, of Eng. of U. S. Army (5th Cir. 1974), 492 F.2d 1123, 1139; Sierra Club v. Froehlke (7th Cir. 1973), 486 F.2d 946, 953. To quote an authoritative commentator, the court is “not [to] make the ultimate decision” but only to see “that the official or agency take a ‘hard look’ at all relevant factors.” This is so because the power of judicial review in this area, is a narrow one to be applied within reason, and in essence is confined to a determination of whether the administrative decision “represented a clear error of judgment.” In making such determination, the court is not to be led into construing the mandating statutes as a device to be used as “a crutch for chronic faultfinding” and, it is not to fault an agency for failure to consider “an alternative whose effect cannot be reasonably ascertained, and whose implementation is deemed remote and speculative.” Nor is the agency obligated “to consider in detail each and every conceivable variation of the alternatives stated;” it “ ‘need only set forth those alternatives “sufficiently] to permit a reasoned choice’.” In sum, so long as the court, in its review, observes the rule of reason and practicality and takes a “hard look” at the relevant factors, it performs its obligation under the statutes. The plaintiffs do not argue that the Secretary, in his determination under NEPA or § 4(f), acted beyond the scope of his authority. Their argument is primarily directed to the District Court’s determination that the Secretary adequately considered and evaluated the Lewis Hollow site as a “feasible and prudent” alternative. They contend that both the Secretary and the District Court dismissed the Lewis Hollow site for an erroneous reason and without a proper consideration of factors relevant to its feasibility. In the exposition of their argument that these determinations rested on an erroneous premise, the plaintiffs hark back to their contentions addressed in our earlier appeal and assert that the determination by the District Court was based, despite our direction in the earlier opinion, on the premise that the bond authorization statute, by its alleged geographic limitation, eliminated the Lewis Hollow site as a feasible and prudent alternative. We, however, find nothing in the opinion of the District Court to support this contention. Nowhere in its opinion does the District Court refer to the bond authorization statute in support of its decision. It spelt out clearly the reasons which prompted its conclusion against the Lewis Hollow site as a viable alternative. It found that the Lewis Hollow site “would create 4(f) problems in that such a location would involve the taking of either a public fairground, a public school playground or a golf course," would lie “outside of the general traffic corridor encompassed by this particular project” and would “not accomplish the objectives of the [proposed] project”. All the reasons so identified represented valid reasons for finding the Lewis Hollow site not to be a viable alternative. They were reasons for which there was clear support in the record. None of them finds its justification in the bond authorization statute. In resting its conclusions on such reasons the District Court conformed scrupulously to our ruling in the earlier decision and to the proper criteria governing judicial review. It is equally clear that the Secretary did not predicate his determination against the Lewis Hollow site on the bond authorization statute. This the District Court expressly found, declaring that the Secretary’s decision was made “without regard to the bond resolution.” Again, this finding is amply supported in the record. In the EIS, it is stated: The Second Coast Guard District Legal Officer has expressed the opinion that he finds no prohibition against other site locations and, further, that the applicant’s reliance on the case of State ex rel. Nelson vs. Ritchie [154 W.Va. 644, 177 S.E.2d 791 (W.Va.1970)] to both preclude Lewis Hollow as an alternate location and to build only within an area between 24th Street and 31st Street is unsupportable. This language is not substantially different from our own language in our earlier opinion. It makes manifest that the Secretary’s determination is no more based on the limitations of the bond statute than was our earlier opinion. On the contrary, the Secretary rested his decision against the Lewis Hollow site on the finding that it “would not provide for the State’s orderly planned program for alleviating traffic congestion at existing bridge crossings in Huntington and related city streets with attendant adverse impacts as they now exist.” This conclusion was developed in greater detail in the final EIS itself, where it is stated: The establishment of an entirely new traffic corridor that would result from locating a highway and bridge facility at the Lewis Hollow site and related environmental impacts that would likely accrue to what may now be considered an open area relatively untouched and unspoiled by vehicular pollution and land usage changes commonly associated with highway development on new location would be avoided for the present by building the proposed bridge at the Gu-yandotte site. Under this alternative [Lewis Hollow], 90% of all cross river vehicular traffic in the Huntington area that origin and destination studies showed originated within a 3 mile radius of the 6th Street bridge, would be faced with an average increase in round trip mileage of approximately 10 to 12 miles. Further, these studies showed that the projected level of traffic that would use a bridge at Lewis Hollow would not comprise a significant percentage of vehicles presently using the already overburdened existing 6th and 17th Street structures, nor generate sufficient revenue from tolls to successfully finance the project. It is likely that the motoring public would rather face the congestion at the existing crossings to avoid subjecting themselves to the increased distance and cost, related inconvenience and adverse traveling safety aspects that would be associated with the additional mileage involved under this alternative. These reasons were further elaborated in the trial testimony of the State Highway Engineer, who testified to certain design studies submitted to the Secretary and admitted in evidence at trial. These studies indicated that in order to relieve § 4(f) problems inherent in any Lewis Hollow use as a bridge site, a sharp curve or jog would have to be a part of the bridge design. Such a curve or jog would manifestly create, as the Engineer explained, a serious hazard to the users of such bridge. It is thus clear, as the District Court found, that in the final EIS the Secretary based his finding, not on the bond authorization statute, but on a consideration of the actual feasibility of the Lewis Hollow site as an alternative site. The plaintiffs’ other claim of error in the conclusions reached by the Secretary and approved by the District Court is that the former did not give proper consideration to an inter-regional highway belt-line around Huntington, with a bridge at Lewis Hollow as an integral part, by way of a “feasible and prudent alternative.” They argue that such failure invalidates the Secretary’s action. There is nothing in the record, however, to show that the West Virginia Highway Department, which is the only public agency with legal authority to develop a proposal for a belt highway, had ever formulated any proposal for such a belt highway, much less had ever considered that such a beltway would serve the puroses of the proposed bridge. In fact, the Secretary made an express finding that the Lewis Hollow site would not meet the needs of an inter-city bridge, which was the purpose of the proposed bridge and this finding is supported in the record. In the absence of an active, as distinguished from a purely speculative, proposal from a responsible public agency, with power and responsibility in the area, it was held in Kleppe v. Sierra Club (1976), 427 U.S. 390, 401, 96 S.Ct. 2718, 2727, 49 L.Ed.2d 576 (decided 1976), that “there is nothing that could be the subject of the analysis envisioned by the statute for an impact statement.” The mere fact that a City of Huntington committee, which lacked any legal authority in the premise, had in the early 60’s proposed a belt highway about the City — a proposal that apparently was not considered by the State Highway Department or even the Department of Transportation — will not render such a plan deserving of an impact statement. Under § 4(f), it is necessary to show not merely that there is no feasible and prudent alternative to the encroachment on a park but that every possible effort has been made to “minimize harm to” the park. The plaintiffs do not seem to argue that this requirement was not complied with under the proposal approved by the Secretary. Nor, as the District Court makes manifest in its opinion, could it be seriously contended to the contrary. The defendants, in their plans, have elevated the bridge’s approach over the park some forty-five feet so as to leave undisturbed in any substantial degree any part of the park. It is true that the bridge piers of the elevated bridge would eliminate three parking spaces in the park but the defendants were replacing those spaces with an equal space on contiguous property acquired by the defendants for that purpose. No party has suggested anything else the defendants could do in order to minimize further the intrusion by the proposed bridge on the park. Finally, the plaintiffs suggest that the Maddie Carroll House qualifies as an historic site under the National Historic Preservation Act and under section 4(f) of the Department of Transportation Act. The Secretary, however, found that construction at the 31st Street site would have no effect on this historical house. The Advisory Council on Historic Preservation acquiesced in this determination. The District Court confirmed this determination and we find no error in such action. The decree of the District Court which denied the plaintiffs injunctive relief and dismissed the action is accordingly AFFIRMED. . Coalition for Responsible Reg. Develop, v. Brinegar (CA 4 1975), 518 F.2d 522. . 33 U.S.C. § 491, et seq. . 42 U.S.C. § 4321, et seq. . 49 U.S.C. § 1653(f). . 16 U.S.C. § 470f. . 401 U.S. at 415, 416, 91 S.Ct. at 823. Note, Program Environmental Impact Statements: Review and Remedies, 75 Mich.L.Rev. 107, 128-9. The ruling in Overton Park has been summarized thus: “Although the Secretary was not required by the highway statute to make findings and was not subject to a judicial review to determine whether his decision was supported by ‘substantial evidence,’ the Supreme Court held that the district court ‘must conduct a substantial inquiry.’ After reciting the maxim that his action is entitled to a presumption of regularity, the Court cautioned: ‘that presumption is not to shield his action from a thorough, probing, in-depth review.’ The court must give ‘scrutiny’ to the facts to see whether the Department acted within the reasonable range of its authority, and must go further to see whether there was an abuse of discretion. ‘To make this finding the Court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ ” Leventhal, Environmental Decision Making, 122 U. of Pa.L.Rev. 509, 513. . 401 U.S. at 415, 91 S.Ct. 814. . Ely v. Velde (4th Cir. 1971), 451 F.2d 1130, 1138. . 401 U.S. at 415, 416, 91 S.Ct. at 823. . 122 U. of Pa.L.Rev. at 514. . Natural Resources Defense Council, Inc. v. Morton (1972), 148 U.S.App.D.C. 5, 458 F.2d 827, 832. . Environmental Defense Fund v. Corps of Eng., U. S. Army (8th Cir. 1972), 470 F.2d 289, 300, cert, denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973). . Life of the Land v. Brinegar (9th Cir. 1973), 485 F.2d 460, 472, cert, denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974). . Brooks v. Coleman (9th Cir. 1975), 518 F.2d 17, 19. . Environmental Defense Fund v. Tennessee Valley Auth. (6th Cir. 1974), 492 F.2d 466, 468, n. 1. . 518 F.2d at 526, n. 3. Our language was: “Whether the proceeds of bonds issued and sold under a resolution limiting their use to a ‘bridge in the vicinity of 24th Street to 31st Street * * *’ may properly be applied to the construction of a bridge 2.2 miles east of 31st Street is at least arguable, and has not been authoritatively determined under state law.” . The plaintiffs object to the Secretary’s findings on the relative relief of the traffic congestion which would be provided by the 31st Street bridge as contrasted with Lewis Hollow bridge. They press the point that the Secretary should have secured later compilations and that such later compilations would have been more favorable to the Lewis Hollow site. This is much the argument made in City of Romulus v. County of Wayne (E.D.Mich.1975), 392 F.Supp. 578, 587. In that case, the Court branded such an argument as “hypercritical.” For a discussion of this case, see 75 Mich.L. Rev. at 130. . This evidence was offered at trial. The plaintiffs now contend that it should not have been received. The plaintiffs, however, did not object to its introduction; they only requested the right to delay cross-examination on this testimony. That right was granted. . This decision was thus summarized in 75 Mich.L.Rev. at 116: “The Court concluded that NEPA required impact statements only for actions that are actually proposed by the agency and not merely contemplated.” In Natural Resources Defense Council, Inc. v. Morton, supra, at 838, the District Court had earlier held that there was no need to discuss effects [or alternatives] “deemed only remote and speculative.” This idea was later summarized by Judge Leventhal in his article in 122 U. of Pa.L.Rev. at 525 as holding that the agency is only obligated to discuss and consider “ ‘reasonably available’ alternatives.” . The park involved consists of little more than 10 acres, two-thirds of which was used for parking. The area over which the bridge would run was used for parking. Elevated as the highway was, it would not interfere with parking in the park, except for the three spaces, for which the defendants were substituting an equal number of spaces in an adjacent area.

United States v. Southern Investment Co.

HARPER, Senior District Judge. Appellant/cross-appellee is Southern Investment Company (hereinafter Southern Investment). Appellee/cross-appellant is the United States acting through the Army Corps of Engineers (hereinafter the Corps). The Corps brought this enforcement action against Southern Investment under the Rivers and Harbors Act, 33 U.S.C. § 403 (hereinafter RHA), the Refuse Act, 33 U.S. C. § 407, and the Clean Water Act, 33 U.S.C. § 1311, 1344 (hereinafter CWA) to require the removal of fill and refuse placed in a backwater channel of the Arkansas River in the City of Little Rock, Pulaski County, Arkansas. The United States District Court for the Eastern District of Arkansas found that Southern Investment had deposited fill and refuse materials in navigable waters of the United States, The district court issued an injunction ordering Southern Investment to implement remedial measures regarding the fill and refuse, and prohibiting Southern Investment from further engaging in filling activities and disposing refuse on the subject property. The district court gave Southern Investment the option of implementing an alternative remedy (which will be discussed later). Southern Investment appeals the judgment of the district court. The Corps has filed a cross-appeal pertaining to findings the district court made regarding the grandfathering of certain fill, and to the alternative remedy offered by the district court to Southern Investment. The following facts give rise to this appeal and cross-appeal. Southern Investment is a real estate investment company in Little Rock, Arkansas. In the early 1950’s, it acquired twenty acres of Arkansas Riverfront property. Southern Investment testified that it was holding the land for future development. During the 1960’s, the Corps began working on the David D. Terry Lock and Dam (hereinafter the dam project). An artificial, permanent pool was created upstream of the dam as a result of the construction of the dam. This pool was at elevation 231 feet mean sea level (msl). The dam project subjected certain lands adjacent to the Arkansas River to potential flooding. Consequently, the Corps sought to acquire those lands so affected by the potential flooding, a portion of which included the riverfront property owned by Southern Investment. In anticipation of the condemnation proceedings, the Corps had an ordinary high water line (hereinafter OHWL) survey completed. Under the RHA, the Refuse Act, and the CWA, waters below the OHWL are declared waters of the United States and are subject to regulatory jurisdiction by the Corps. In 1975, the CWA expanded the Corps’ jurisdictional authority to include wetlands. The Corps concluded that the OHWL for Southern Investment’s land was 233.1 msl. The Corps sought a flowage easement for river lands between 234 msl and 233.1 msl, an area which partially represented additional wave wash damage. Southern Investment was reluctant to give up its property. An agreement was reached with the Corps whereby Southern Investment would construct two dams. These dams were to be located on the east and west ends of the backwater channel situated on the subject property. This backwater channel exists parallel to the Arkansas River. The dams would purportedly sever the backwater channel from the Arkansas River. This would eliminate the possibility of flooding of the backwater channel caused by the dam project and the resultant discharging of pollutants from the backwater channel into the Arkansas River. The Corps thus agreed, on the basis of Southern Investment’s construction of these two dams, not to include that property in their plans to acquire a flowage easement. The dam that Southern Investment constructed on the east end of the backwater channel washed away within a matter of a few weeks following its completion. There currently is a connection with the Arkansas River through the east end of the channel. The district court found that between 1966 and 1980, Southern Investment deposited fill materia] on the bank or adjacent to the bank of the backwater channel, and deposited refuse in the backwater channel. The district court further found that the backwater channel was below the OHWL and was connected to the Arkansas River as early as the year 1966. Southern Investment testified that it filled the low lying areas of its property as part of its development plans. Southern Investment further testified that it had understood that the Corps approved of the plan to continue filling the property and eventually develop it as an industrial park. During the mid to late 1970’s, the general population began to use the site as an unofficial “dumping ground.” Southern Investment did not authorize this dumping and would periodically attempt to clean the area because of unsightliness. In 1981, the Corps visited the subject property. They sent a cease and desist letter to Southern Investment ordering the removal of unauthorized fill and refuse. Southern Investment cleaned up most of the refuse, but did not remove the fill that had been deposited in the channel. The Corps inspected the site in July, 1982, again in July, 1986, and then filed this suit in November, 1986. The district court enjoined Southern Investment from further depositing refuse or fill materials on the subject property, and ordered Southern Investment to remove the fill material in an area 175 feet east of the dam that was placed on the west end of the backwater channel for a distance extending 250 to 300 feet. The district court afforded Southern Investment an alternative remedy of constructing a ditch along the northern boundary of the backwater channel in order to allow free drainage from the wetlands to the northern boundary of the channel, and constructing a retaining wall above the OHWL to secure the fill and refuse material, thereby preventing the flowage of such material into the Arkansas River and the backwater channel. The final part of the alternative remedy would call for Southern Investment to level the embankment at the OHWL by removing the boulders, concrete blocks, sheet metal and wire coils in an effort to improve the physical appearance of the subject property. The district court further found that the west dam and the area of fill extending 175 feet east of the west dam were erected and filled prior to 1968, were grandfathered, and were, therefore, exempt from the Corps’ jurisdiction which became effective after that date. We are considering three different environmental statutes in this case: (1)Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge after October 18, 1972, of any pollutant into waters of the United States, except in compliance with, inter alia, a permit issued by the Secretary of the Army pursuant to Section 404 of the CWA, 33 U.S.C. § 1344. Prior to July 25, 1975, the Corps’ jurisdiction under the CWA was limited to property located below the OHWL. After that date, the Corps’ jurisdiction under this statute was expanded to include wetlands. (2) Section 10 of the RHA, 33 U.S.C. § 403, prohibits after December 18, 1968, any work which alters or modifies the course, condition or capacity of a navigable water, unless a prior permit has been obtained from the Secretary of the Army. (3) The Refuse Act, 33 U.S.C. § 407, prohibits any person to deposit, or cause, suffer, or procure to be deposited any material, on the bank of any navigable water or tributary of a navigable water, that is liable to be washed into that navigable water by storm, flood or otherwise. The Corps’ jurisdiction under both the RHA and the Refuse Act is limited to property located below the OHWL. Under the RHA, all fill deposited below the OHWL prior to December 18, 1968, is grandfathered. Under the CWA, all fill deposited below the OHWL prior to October 18, 1972, is grandfathered; fill deposited after July 25, 1975 that is above the OHWL but on wetlands is subject to the Corps’ jurisdiction. Southern Investment challenges the district court’s holding that the OHWL extends to the subject property, that the subject property is a wetland, that certain portions of the deposited fill were not grandfathered, that the Corps properly exercised its jurisdictional authority, and that the Corps should not be estopped from alleging that Southern Investment violated the three statutes in question. Several of these issues are related to one another and will be addressed accordingly. DISCUSSION OF ISSUES ON APPEAL The district court found that the backwater channel was below the OHWL and was connected to the Arkansas River as early as 1966. Under the RHA, the CWA, and the Refuse Act, waters below the OHWL are waters of the United States for the purposes of the Corps’ regulatory jurisdiction. See 33 U.S.C. § 403; 33 U.S. C. § 1362(7); and 33 U.S.C. § 407. We are concerned here with the OHWL determination that was made after the year 1968, because in that year the Corps first assumed regulatory jurisdiction over waters below the OHWL. The standard of review that this Court must utilize in deciding this question is the clearly erroneous standard because the location of the OHWL is a question of fact. Fed.R.Civ.P. 52(a); United States v. Cameron, 466 F.Supp. 1099, 1112 (M.D.Fla.1978); see United States v. Sunset Cove, Inc., 514 F.2d 1089, 1090 (9th Cir.1975), cert. denied, 423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975) (court’s location of the mean high-water line held not to be clearly erroneous). In 1977, the Corps conducted a study in an effort to measure the OHWL, and established it at 234.0 msl at river mile 116.8. The Corps’ expert witness, William Henson, described the method utilized by the Corps in reaching this measurement as follows: By (1), walking along the river “at random locations on the bank and lookpng] for the lowest non-tolerant vegetation growing that has some size to it;” (2) surveying the elevation of the ground where the vegetation evidence is growing; (3) plotting the elevation and river mile location on a profile; and, (4) drawing a line through the preponderance of data points. Henson is a civil engineer employed by the Corps. He testified that this is an accurate method of determining the OHWL. He further gave his opinion that the post-project OHWL extended into the backwater channel, basing his opinion on the 1977 OHWL study, an on-the-ground planetable survey conducted in 1966, aerial photographs, a survey prepared during an inspection in 1981, and personal observation, including a 1987 canoe trip up into the channel. Southern Investment criticizes the methods utilized by the Corps to establish the OHWL. Specifically, Southern Investment claims that the 1977 study was inadequately performed because the data points were too widely spaced and the vegetation selected was immature; and further, that the 1966 survey was outdated. Southern Investment also takes issue with the Corps’ use of a technique called the projection method to assign the OHWL at river mile 116.8. This method requires that the OHWL graph for the Arkansas River be projected onto the planetable survey of the subject property. On review, we find that the district court’s finding that the post-project OHWL extended to the subject property was not clearly erroneous. Viewed in entirety, the testimony submitted by the Corps’ expert witness and the physical and documentary evidence support this conclusion. Southern Investment presented an expert witness who testified that the projection method utilized by the Corps was an inadequate means of establishing the OHWL. We are, however, unwilling to reverse the district court’s finding in this matter. We will not assess the weight given by the district court to the testimony and the evidence. We will only decide whether the district court’s findings were based on a permissible view of the testimony and evidence. “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-574, 105 S.Ct. 1504, 1511-1512, 84 L.Ed.2d 518 (1985). This issue on appeal does not warrant reversal. Southern Investment next challenges the district court’s determination that the subject property is a wetland. The Corps’ regulatory jurisdiction under the CWA can be based on either the OHWL or the presence of wetlands. Congress expanded the Corps’ jurisdiction to include wetlands effective July 25, 1975. The dam project went into effect on September 24, 1968. Thus, any fill material deposited above the OWHL, but on wetlands, is subject to the Corps’ regulatory jurisdiction only if it occurred subsequent to July 25, 1975. The District Court entered a permanent injunction dated from the present against • further filling activities. Southern Investment argues that the district court’s bench order does not clearly state the extent to which the injunction was based on wetlands jurisdiction. It is further argued that the district court made a wetlands determination applicable only to the area of the subject property where no fill was deposited. We partially disagree with Southern Investment’s interpretation of the district court’s bench order. The order plainly refers to two separate findings pertaining to the presence of wetlands. The court first held- that the “backwater channel where no fill material or refuse was deposited in substantial quantities” was and is a wetland. The court enjoined future deposit of refuse and fill in this area without a permit. Second, the court found that the area below and above the ordinary high water mark commencing 175 feet east of the west dam and extending for approximately 250 feet was also a wetland. In regard to this second finding, the district court ordered Southern Investment to remove the refuse and fill material. Again, the standard of review that we must apply is the clearly erroneous standard because the determination that an area is a wetland is a finding of fact. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131, 106 S.Ct. 455, 461, 88 L.Ed.2d 419 (1985); Conant v. United States, 786 F.2d 1008, 1009 (11th Cir.1986). In respect to the finding that the area of the backwater channel where no fill material or refuse was deposited is a wetland, we hold that the district court’s determination was not clearly erroneous. Henson testified that the area is a wetlands. He based his opinion on aerial photographs, documentation of the river gauge indicating one hundred percent inundation after the dam project went into effect, and personal observation. Southern Investment’s expert witness agreed that the backwater channel is currently a wetland. The gist of Southern Investment’s challenge relating to this issue lies in the contention that the Corps cannot assert jurisdiction because it created the wetland. We disagree. Generally speaking, “federal jurisdiction is determined by whether the site is presently wetlands and not by how it came to be wetlands.” United States v. Ciampitti, 583 F.Supp. 483, 494 (D.N.J.1984). See also United States v. Akers, 651 F.Supp. 320, 321-323 (E.D.Cal.1987); Bailey v. United States Army Corps of Engineers, 647 F.Supp. 44, 48 (D.Ida.1986); and Track 12, Inc. v. District Engineer, 618 F.Supp. 448, 450-451 (D.Minn.1985). Southern Investment relied on United States v. City of Fort Pierre, S.D., 747 F.2d 464 (8th Cir.1984) as support for the argument that the Corps may not assert jurisdiction over artificially created wetlands. This argument is not well grounded. In Fort Pierre, this Court held that the Corps did not have regulatory jurisdiction over wetlands that were solely an inadvertent result of unrelated river maintenance (in that case, river dredging activity). We were careful to limit our holding and stated that “ * * * our holding does not challenge the Corps’ jurisdiction with regard to any other artificially created wetland-type environment. Rather, our holding is limited to the situation in which the Corps, as an unintended byproduct of ordinary river maintenance, inadvertently creates a wetland-type ecological system on private property where no such system previously existed.” Fort Pierre, at 467. The evidence strongly suggests that the area was a wetland as long ago as the year 1966, so it is highly plausible that the Corps’ activities did not even create the wetland conditions. Further, even if we agreed with Southern Investment that the Corps undisputably caused the wetland conditions on the subject property, we would hardly classify the construction of the dam project as “ordinary river maintenance.” Id. Therefore, the district court’s finding that the area of the backwater channel where no fill material or refuse was deposited in substantial quantities is a wetland is not clearly erroneous. For the same reasons, we also hold that the testimony and the evidence support the district court’s finding that the illegal fill area was a wetland prior to being filled. The district court’s findings that areas of the subject property are wetlands were supported by the record and do not warrant reversal. The Corps has jurisdiction over wetlands under the CWA as of the year 1975. Fill deposited prior to that time on wetlands above the OHWL is grandfathered. However, we cannot ascertain from the district court’s order the amount of fill involved. This question is remanded to the district court so a finding can be made pertaining to the period of time during which the portion of fill located above the OHWL was deposited there. The portion that was deposited subsequent to July 25, 1975 must be removed. Southern Investment also challenges the district court’s findings pertaining to grandfathered fill under the RHA. Fill material that was deposited in waters of the United States prior to December 18, 1968 is grandfathered. 33 C.F.R. 330.3. Southern Investment argues that the grandfathering line established by the district court does not include all of the fill deposited prior to 1968. The RHA’s grandfathering provision also contains language which allows an exemption for “work completed * * * in waterbodies over which the district engineer had not asserted jurisdiction at the time the activity occurred provided * * * there is no interference with navigation.” 33 C.F.R. 330.3(b). Southern Investment submits that the Corps disclaimed an interest in the subject property in 1967, and did not revoke the disclaimer until May 1,1981, after all the fill had been deposited, thereby providing a further basis for grandfathering under the RHA. We hold that the testimony and evidence in the form of aerial photographs support the Corps’ assertion that the substantial portion of filling activities took place subsequent to December 18, 1968. We will not disturb the district court’s finding as they are based on a permissible view of the evidence. In respect to Southern Investment’s contention that the Corps disclaimed an interest in the subject property, we must disagree. As far as this Court can ascertain, it appears obvious that the Corps did forego the use of the subject property for the flowage easement. This fact does not, however, relieve the Corps of its power to assert regulatory jurisdiction over the property. We hold that from the date of December 18, 1968, all fill deposited on the subject property without a permit was not grandfathered under the RHA, regardless of the Corps’ decision not to utilize the area for the flowage easement. The district court held that Southern Investment had deposited refuse on the subject property in violation of the Refuse Act. The Refuse Act applies to two different offenses: (1) The discharge of refuse of any kind or description into any navigable water or tributary thereof; and, (2) the deposit of material on the bank of any navigable water or tributary where the material is likely to be washed into such navigable water and impede or obstruct navigation. United States v. Consolidation Coal Company, 354 F.Supp. 173, 175 (N.D.W.Va.1973). Refuse includes “all foreign substance and pollutants apart from those ‘flowing from streets and sewers and passing therefrom in a liquid state’ into the water course.” Reserve Mining Company v. Environmental Protection Agency, 514 F.2d 492, 530 (8th Cir.1975), quoting United States v. Standard Oil Co., 384 U.S. 224, 230, 86 S.Ct. 1427, 1430, 16 L.Ed.2d 492 (1966). Southern Investment argues that the deposit of refuse on the subject property would not violate either provision of the Refuse Act for two reasons: First, no refuse is being discharged into navigable waters, and second, the fill in place is heavy demolition material unable to be washed into the river. Southern Investment cleaned up some refuse in 1981, but the Corps presented evidence that refuse remains in the backwater channel in the form of wire, pieces of board, plywood, old tires, pieces of steel, sheets of tin, and a washing machine. We have already determined that the district court correctly found that the backwater channel was below the OHWL. In view of the substantial and credible evidence, we hold that the district court properly found that Southern Investment violated the Refuse Act. This issue does not warrant reversal. Southern Investment raised the affirmative defenses of estoppel, waiver and laches which the district court found “not only are not well founded but have no basis in this lawsuit.” The district court first noted the sovereign status of the plaintiff and then pointed out that in order to hold the government liable, it would have had to take “affirmative steps in bad faith to mislead or to establish a foundation that Southern [Investment] took certain steps in reliance thereon to its detriment.” See Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 60, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984) (Government may not be estopped on the same terms as other litigants). Southern Investment relies on two arguments to assert its estoppel defense. First, Southern Investment refers to project maps which were prepared by the Corps in anticipation of the construction of the dam. The maps do not show the OHWL as extending into the backwater channel. Southern Investment argues that this fact precludes the Corps’ assertion of jurisdiction over the subject property. Second, Southern Investment relies on alleged promises by the Corps during easement negotiations that the Corps did not have regulatory jurisdiction over the property, and that Southern Investment could fill the channel between the two dams. In respect to the first argument pertaining to the project maps, the district court could have properly relied on testimony presented by the Corps showing that the OHWL on the project maps was drawn outside of the backwater channel simply for the purpose of defining the easement boundary. As we noted earlier, the fact that the Corps decided to eliminate the backwater channel from the flowage easement does not mean that the Corps waived its regulatory jurisdiction. Southern Investment’s second argument is equally unsupported. It was heavily disputed at trial whether representatives of the Corps did, in fact, tell Southern Investment that the area between the two dams could be filled. We find that even if such representation was made to Southern Investment, the requirement of affirmative misconduct is lacking in this case. The doctrine of equitable estoppel is not applicable to the facts herein and the district court was correct in rejecting Southern Investment’s reliance on this defense. Lastly, Southern Investment argues that the Corps attempted to place a “new navigational servitude” on the property, beyond the OHWL to artificially created wetlands. In this argument, Southern Investment submits that the Corps is without power to exercise regulatory jurisdiction over the subject property without paying just compensation. The district court rejected this argument on the grounds that the assertion of a taking may not be raised as a defense to an enforcement action brought under the CWA. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 129, n. 6, 106 S.Ct. 455, 460, n. 6, 88 L.Ed.2d 419 (1985), the court said: “ * * * this lawsuit is not the proper forum for resolving such a dispute: if the Corps has indeed effectively taken respondent’s property, respondent’s proper course is not to resist the Corps’ suit for enforcement by denying that the regulation covers the property, but to initiate a suit for compensation in the Claims Court.” Southern Investment’s attempt to raise a taking defense is inappropriate and the district court properly ruled in rejecting this argument. Accordingly, we affirm in part and remand in part. The district court did not err in holding that the OHWL extended to the subject property, that the subject property was a wetland, that the Corps properly exercised its regulatory jurisdictional authority, that Southern Investment deposited fill and refuse on the subject property subsequent to December 18, 1968, and that the affirmative defense of equitable estop-pel was not available to Southern Investment in this case. We remand that portion of the district court’s decision pertaining to the grandfathering of fill deposited on wetlands so a determination might be made concerning the amount of fill that is located on wetlands above the OHWL, and when it was placed there. DISCUSSION OF ISSUES ON CROSS-APPEAL The Corps has filed a cross-appeal wherein it challenges the district court’s finding that the fill located 175 feet east of the dam located at the west end of the backwater channel was placed before 1968. The Corps further challenges the decision of the district court to offer Southern Investment an alternative to removing the illegal material. This remedy would allow Southern Investment to construct a ditch that does not connect the channel to the river at the west end but which coincides with the length and extent of the fill and refuse material that otherwise must be removed. In respect to the district court’s determination concerning the grandfathering of fill as described above, we note that the court considered Southern Investment’s argument that this area had a de minimus effect. Further, the court noted that a removal order would be a hardship to Southern Investment. Southern Investment presented testimony that the City of Little Rock installed a sewer line in 1967, and at that time dumped materials on the subject property that were identified in the exhibits. The Corps presented evidence in the form of aerial photographs as proof that little of the fill was in the subject area prior to 1970. Again, we do not find it appropriate to disturb the district court’s findings when they are based on a permissible view of the evidence. The district court was best able to assess the value of the evidence presented on behalf of both parties, and we cannot find that the court’s decision in that regard was clearly erroneous. Next, the Corps challenges the district court’s suggestion to Southern Investment of an alternative remedy. The alternative remedy would allow Southern Investment to, (1) install a ditch approximately 150 feet in length along the north bank of the channel to afford drainage from the wetlands into the channel; (2) build a retaining wall above the OHWL to prevent fill material or refuse from discharging into the channel and reaching the river; and (3) clean up the remainder of the fill to improve the appearance of the area. The Corps’ objection to this alternative is that it permits Southern Investment to remove considerably less of the fill that it must otherwise remove under the first option, without conferring an additional benefit on the public. The Corps takes issue with the district court’s avoidance of the Corps’ suggestion that the ditch should be connected to the river. The purpose served by this connection, according to the Corps, would be the reestablishment of circulation in the backwater channel necessary to revitalize wetland conditions. In its bench ruling, the district court did not address the Corps’ suggestion. We must review the district court’s alternative remedy under an abuse of discretion standard. United States v. Cumberland Farms of Connecticut, Inc., 826 F.2d 1151, 1164 (1st Cir.1987), cert. denied — U.S. -, 108 S.Ct. 1016, 98 L.Ed.2d 981 (1988); United States v. Context-Marks Corp., 729 F.2d 1294, 1297 (11th Cir.1984). The restoration plan must “(1) be designed to confer maximum environmental benefits tempered with a touch of equity; (2) be practical and feasible from an environmental and engineering standpoint; (3) take into consideration the financial resources of defendants; and (4) include consideration of defendants’ objections.” United States v. Robinson, 570 F.Supp. 1157, 1164 (M.D.Fla.1983). We have reviewed the testimony offered by Henson pertaining to the district court’s alternative remedy. This testimony rose out of a dialogue between the district court and Henson concerning the possibility of placing a pipe under the dam in order to reconnect the channel at the west end to the Arkansas River, while preserving access to the land immediately adjacent to the river. Henson gave his expert opinion that this alternative remedy would be acceptable to the Corps because the connection would re-establish circulation in the backwater channel, thereby revitalizing the wetland conditions. He further testified that the length of the piping could be shortened from roughly 300 feet to 150 feet by digging a ditch. In interpreting this exchange between the district court and Henson, it is obvious to us that the construction of the ditch absent its connection to the river would be futile in terms of wetlands restoration. We can find no support for Southern Investment’s assertion that the district court “could not order any changes to the [western] dam since it existed prior to any Corps’ jurisdiction [1968].” The district court did not “order” Southern Investment to implement the alternative remedy. Rather, the option was offered to Southern Investment to choose the alternative over the primary remedy should it see fit. It is our considered opinion that the alternative remedy must include the utilization of a pipe connection to the river in order to facilitate the necessary restoration of wetlands conditions. This issue is remanded to the district court for disposition in accordance with this finding. Affirmed in part, remanded in part.

Alaska v. United States

Justice Kennedy delivered the opinion of the Court. The State of Alaska has invoked our original jurisdiction to resolve its dispute with the United States over title to certain submerged lands underlying waters located in southeast Alaska. Alaska initiated the action by filing a complaint with leave of the Court. 530 U. S. 1228 (2000). We appointed Professor Gregory E. Maggs to act as Special Master in this matter. 531 U. S. 941 (2000). The Special Master gave thorough consideration to the written and oral submissions of the parties. In a detailed report he now recommends the grant of summary judgment to the United States with respect to all the submerged lands in dispute. Report of Special Master 1 (hereinafter Report or Special Master’s Report). We set the case for oral argument on Alaska’s exceptions to the Special Master’s Report. 543 U. S. 953 (2004). For the reasons we discuss, Alaska’s exceptions are overruled. I We begin by reviewing the general principles elaborated in the resolution of similar submerged lands disputes in our earlier cases. States enjoy a presumption of title to submerged lands beneath inland navigable waters within their boundaries and beneath territorial waters within three nautical miles of their coasts. This presumption flows from two sources. Under the established rule known as the equal-footing doctrine, new States enter the Union “on an ‘equal footing’ with the original 13 Colonies and succeed to the United States’ title to the beds of navigable waters within their boundaries.” United States v. Alaska, 521 U. S. 1, 5 (1997) (Alaska (Arctic Coast)). Under the Submerged Lands Act (SLA), 67 Stat. 29, 43 U. S. C. § 1301 et seq., which applies to Alaska through an express provision of the Alaska Statehood Act (ASA), § 6(m), 72 Stat. 343, the presumption of state title to “lands beneath navigable waters within the boundaries of the respective States” is “confirmed” and “established.” 43 U. S. C. § 1311(a); see also Alaska (Arctic Coast), 521 U. S., at 5-6. The SLA also “establishes States’ title to submerged lands beneath a 3-mile belt of the territorial sea, which would otherwise be held by the United States.” Id., at 6. “As a general matter, then, Alaska is entitled under both the equal footing doctrine and the Submerged Lands Act to submerged lands beneath tidal and inland navigable waters, and under the Submerged Lands Act alone to submerged lands extending three miles seaward of its coastline.” Ibid. The Federal Government can overcome the presumption and defeat a future State’s title to submerged lands by setting them aside before statehood in a way that shows an intent to retain title. Id., at 33-34. The requisite intent must, however, be “‘definitely declared or otherwise made very plain.’” Id., at 34 (quoting United States v. Holt State Bank, 270 U. S. 49, 55 (1926)). With these principles in mind, we discuss the two areas of submerged land at issue here. II The first area of submerged land in dispute, claimed by Alaska under alternative theories in counts I and II of its amended complaint to quiet title (hereinafter Amended Complaint), consists of pockets and enclaves of submerged lands underlying waters in between and fringing the southeastern Alaska islands known as the Alexander Archipelago. These disputed submerged lands, shown in red and dark blue on the map in Appendix A, infra, share a common feature: All points within the pockets and enclaves are more than three nautical miles from the coast of the mainland or of any individual island of the Alexander Archipelago. For these pockets and enclaves, the dispositive question is whether the Alexander Archipelago’s waters qualify as inland waters. If they do, Alaska’s coastline would begin at the outer bounds of these inland waters as marked by the black line drawn on the map in Appendix A, infra. See 43 U. S. C. § 1301(c) (“The term ‘coast line’ means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters”); see also United States v. Alaska, 422 U. S. 184, 187-188, and n. 5 (1975) (Alaska (Cook Inlet)). Under the equal-footing doctrine and the SLA, a presumption of state title would then arise as to all the submerged lands underlying both the inland waters landward of this coastline, and also the territorial sea within three nautical miles of it. Because the United States concedes it could not rebut the presumption of state title as to this aspect of the case, Alaska would have title to all the pockets and enclaves of submerged lands in dispute. If the Alexander Archipelago’s waters do not qualify as inland, then they instead qualify as territorial sea. In that case Alaska would have no claim of title to the disputed pockets and enclaves, as these lands are beyond three nautical miles from the coast of the mainland or any individual island. The second area of submerged land in dispute, claimed by Alaska in count IV of its Amended Complaint, consists of the submerged land beneath Glacier Bay, a well-marked indentation into the coast of the southeast Alaskan mainland. See Appendixes C, D, infra (maps of Glacier Bay). There is no question that Glacier Bay’s waters are inland. For the submerged lands underlying these waters, the controlling question is whether the United States can rebut Alaska’s presumption of title. After receiving the parties’ written submissions and conducting a hearing, the Special Master recommended that this Court grant summary judgment to the United States with respect to Alaska’s claims of title to both areas of submerged land in dispute. Report 1. As to the pockets and enclaves, the Special Master concluded that the waters of the Alexander Archipelago do not qualify as inland waters either under the historic inland waters theory advanced in count I of Alaska’s Amended Complaint or under the juridical bay theory advanced in count II. Id., at 137-138, 226. As to the submerged lands underlying Glacier Bay and claimed by Alaska in count IV, the Special Master concluded that the United States has rebutted the presumption that title passed to Alaska at statehood. Id., at 276. Alaska filed exceptions to each of these three conclusions. We address them in turn. Ill In count I of its Amended Complaint, Alaska alleges that the waters of the Alexander Archipelago are historic inland waters. As this Court has recognized, “where a State within the United States wishes to claim submerged lands based on an area’s status as historic inland waters, the State must demonstrate that the United States: (1) exercises authority over the area; (2) has done so continuously; and (3) has done so with the acquiescence of foreign nations.” Alaska (Arctic Coast), supra, at 11. “For this showing,” we have elaborated, “the exercise of sovereignty must have been, historically, an assertion of power to exclude all foreign vessels and navigation.” Alaska (Cook Inlet), supra, at 197. Nations may exclude from inland waters even vessels engaged in so-called “innocent passage” — passage that “is not prejudicial to the peace, good order or security of the coastal State,” Arts. 14(1), 14(4) of the Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, [1964] 15 U. S. T. 1607, 1610, T. I. A. S. No. 5639 (hereinafter Convention). See United States v. Louisiana, 470 U. S. 93, 113 (1985) (Alabama and Mississippi Boundary Case); United States v. Louisiana, 394 U. S. 11, 22 (1969). To claim a body of water as historic inland water, it is therefore important to establish that the right to exclude innocent passage has somehow been asserted, even if never actually exercised. See Alabama and Mississippi Boundary Case, 470 U. S., at 113, and n. 13. The Court also has considered the “vital interests of the United States” in designating waters as historic inland waters. Id., at 103. The Special Master recommended that the Court grant summary judgment to the United States on this count. The Special Master first made a thorough examination of historical documents, from 1821 to the present, bearing on the status of the Alexander Archipelago’s waters. The Special Master sorted these documents into five distinct periods: (1) Russian sovereignty (1821-1867), Report 23-38; (2) early American sovereignty (1867-1903), id., at 38-55; (3) the 1903 U. S.-Britain Boundary Arbitration, id., at 56-63; (4) later American sovereignty (1903-1959), id., at 63-89; and (5) the poststatehood era (1959-present), id., at 89-107. Based on his examination of the record evidence from all of these periods, the Special Master concluded that “Russia and the United States historically did not assert authority to exclude vessels from making innocent passage through the waters of the Alexander Archipelago.” Id., at 109. In the Special Master’s view, Alaska had at best “uncovered and presented only ‘questionable evidence’ that the United States exercised the kind of authority over the waters of the Archipelago that would be necessary to prove a historic waters claim.” Id., at 129. Though Alaska’s failure to demonstrate that the waters of the Alexander Archipelago had historically been treated as inland waters would by itself justify granting summary judgment to the United States on count I, the Special Master also addressed other relevant factors, such as the acquiescence of other nations and the vital interests of the United States. In the Special Master’s view these factors only strengthened the case for granting summary judgment to the United States. Excepting to the Special Master’s recommendation on count I, Alaska contends the Special Master gave too little weight to historical events that tend to support Alaska’s position. By the same token Alaska argues the Special Master gave too much weight to historical events that tend to undermine its position. Alaska also asserts that foreign nations have acquiesced in the treatment of the waters of the Alexander Archipelago as inland waters, and that the interests of the United States support such treatment. We find Alaska’s arguments unconvincing. Rather than canvassing the entire historical record discussed by the Special Master in his thorough, commendable report, we turn our attention to the events Alaska presents as its best evidence that the Alexander Archipelago’s waters qualify as historic inland waters. A First in time among the events to which Alaska points are incidents from the period of Russian sovereignty. These incidents are pertinent to the inquiry because, as we have held, when Russia ceded the territory of Alaska to the United States in 1867, “the United States thereby acquired whatever dominion Russia had possessed.” Alaska (Cook Inlet), 422 U. S., at 192, n. 13. In 1824, the United States and Russia entered into a treaty that, inter alia, granted United States vessels the right, over the next 10 years, to “frequent, without any hindrance whatever, the interior seas, gulphs, harbours, and creeks [of the Alexander Archipelago], for the purpose of fishing and trading with the natives of the country.” See Convention Between the United States of America and Russia, Art. 4, 8 Stat. 304 (1825) (hereinafter 1824 Treaty or Treaty). In Alaska’s view this Treaty demonstrates that “the Russian claim extended to the entire Archipelago” and thus that Russia treated the archipelago waters as inland waters. Exceptions to Report of Special Master and Brief in Support for Plaintiff 29 (hereinafter Exceptions and Brief for Plaintiff Alaska). The principal problem with Alaska’s assertion is that the 1824 Treaty by its terms did not address navigation for the purpose of innocent passage, but rather addressed only navigation “for the purpose of fishing and trading with the natives.” Even on the questionable assumption that the Treaty’s reference to “interior seas” included all the waters of the Alexander Archipelago and not just waters within three nautical miles of the coast of the mainland or any particular island, but see Report 27-28 (refuting this assumption), the Treaty simply does not provide evidence that Russia asserted a right to exclude innocent passage. Yet evidence of the assertion of this right — not some lesser right — must be provided to support a historic inland waters claim. See Alaska (Cook Inlet), supra, at 197. Upon the expiration of the 10-year right granted to United States vessels by virtue of the 1824 Treaty, Russia stationed a brig, the Chichagoff, at the southern border of Russian America. Alaska implies that Russia’s purpose in stationing the brig there was to exclude any foreign vessels from entering the Alexander Archipelago’s waters. See Exceptions and Brief for Plaintiff Alaska 30-31. Were we to accept this interpretation of the Chichagoff incident, we would acknowledge it as some evidence that Russia treated the Alexander Archipelago’s waters as inland waters. As the Special Master noted, however, a report prepared for the 1903 Alaskan Boundary Tribunal (a tribunal we will discuss further) described the Chichagoff incident as follows: “Governor Wrangell sent the brig Chichagoff, under command of Lieutenant Zarembo, to Tongas, near the southern boundary line at 54° 40', for the purpose of intercepting foreign vessels entering the inland waters of the colony, to the masters of which he was to deliver written notice of the expiration of the treaty provisions, being furnished with six copies for American and three for British vessels.” 1 Proceedings of the Alaskan Boundary Tribunal, S. Doc. No. 162,58th Cong., 2d Sess., pt. 2, p. 70 (1904) (hereinafter ABT Proceedings) (footnote omitted). Like the Special Master, we see nothing in this passage to indicate that Russia, through its actions with respect to the Chichagoff, asserted a right to exclude from the Alexander Archipelago waters foreign vessels engaged only in innocent passage. By giving written notice of the expiration of the 1824 Treaty rights, the Chichagoff reminded American mariners that they were no longer free to trade with the natives, or to approach within cannon shot of the Russian lands “without any hindrance whatever.” 1824 Treaty, Art. 4, 8 Stat. 304. Russia did not assert thereby the more sweeping right to exclude even vessels engaged only in innocent passage. Alaska also points to evidence that in 1836 Russian forces apprehended and boarded the American vessel Loriot while it was within the Alexander Archipelago waters, and then ordered it “ ‘to leave the waters of His Imperial Majesty.’ ” Exceptions and Brief for Plaintiff Alaska 30; see also Letter from John Forsyth to G. M. Dallas (May 4, 1837), reprinted in Report of Secretary of State Thomas F. Bayard upon the Seal Fisheries in the Bering Sea, S. Exec. Doc. No. 106, 50th Cong., 2d Sess., 232-233 (1889). Even this incident does not constitute evidence that Russia viewed the archipelago waters as inland waters, however, because the Loriot was not engaged in innocent passage. The Loriofs mission, as freely admitted in a contemporary letter written by a State Department official to a member of the United States legation in St. Petersburg, was to visit “the northwest coast of America, for the purpose of procuring provisions, and also Indians to hunt for sea otter on the said coast.” Id., at 232. By excluding the Loriot, which evidently had tried to exceed the limits of mere “innocent passage,” Russia did not, and could not, assert a right to exclude vessels engaged solely in innocent passage. In sum, none of the incidents Alaska cites from the period of Russian sovereignty support the proposition that Russia treated the waters of the Alexander Archipelago as inland waters prior to ceding Alaska to the United States in 1867. B For the period of early U. S. sovereignty between 1867 and 1903, Alaska cites not a single incident demonstrating that the United States acted in a manner consistent with an understanding that the Alexander Archipelago waters were inland. Alaska thus leaves itself with at most 56 years to demonstrate continuous prestatehood treatment of the Alexander Archipelago as inland waters. This alone constitutes a substantial weakness in Alaska’s position. As to the years between 1867 and 1903, Alaska does attempt to explain away a significant event which undercuts its claim, but this attempt is unsuccessful. In 1886, Secretary of State Thomas F. Bayard wrote a letter to Secretary of Treasury Daniel Manning concerning the limits of the territorial waters of the United States on both the northeastern and the northwestern coasts. See 1 J. Moore, Digest of International Law 718-721 (1906). The State Department’s position with respect to waters surrounding fringing islands on both coasts was that the sovereigns of those islands could only claim a territorial sea of three miles from the coast of each island. Secretary Bayard explained that, in asserting the 3-mile belt of territorial sea, the United States denied neither “the free right of vessels of other nations to pass, on peaceful errands, through this zone” nor the right “of relief, when suffering from want of necessaries, from the shore.” Id., at 720-721 (internal quotation marks omitted). According to Secretary Bayard, the State Department’s position was a well-considered one, rooted in principles of reciprocity and consistent practice: “These rights we insist on being conceded to our fishermen in the northeast, where the mainland is under the British sceptre. We can not refuse them to others on our northwest coast, where the sceptre is held by the United States. We asserted them . . . against Russia, thus denying to her jurisdiction beyond three miles on her own marginal seas. We can not claim greater jurisdiction against other nations, of seas washing territories which we derived from Russia under the Alaska purchase.” Id., at 721 (internal quotation marks omitted). The Special Master singled out this letter as “unambiguously support[ing] the United States’ position that the United States and Russia historically did not assert the right to exclude foreign vessels from the waters of the Archipelago.” Report 109. Emphasizing the statements in the letter that the United States could not “‘claim greater jurisdiction’” than three miles of marginal seas and that foreign vessels had the right to make “‘free transit,’” the Special Master concluded that “[o]fficials who held this belief could not, and evidently did not, claim that the United States could exclude innocent passage through the waters.” Id., at 110. Alaska argues that Secretary Bayard’s letter is of minimal relevance because “it was internal correspondence that primarily addressed a dispute on the East coast” and thus “did not announce to any foreign nation that the United States had abandoned a claim to the Archipelago.” Exceptions and Brief for Plaintiff Alaska 31-32. Alaska’s arguments are unpersuasive. That Secretary Bayard’s letter referred to the east coast in no way diminishes the unequivocal nature of its statements with respect to the Alaskan coast. It may be true that no foreign nation ever became aware of Secretary Bayard’s letter (though the subsequent publication of the letter in the United States’ Digest of International Law gives us reason to believe the contrary). Regardless, Secretary Bayard’s letter still provides strong evidence that the United States, as of 1886, did not claim a right to exclude all foreign vessels from the Alexander Archipelago waters and had no intention of doing so. We do not need to parse the letter to see whether it “announce[d] to any foreign nation that the United States had abandoned a claim to the Archipelago,” for Alaska can muster no proof that the United States as of 1886 had made any such claim in the first place. C A stronger piece of evidence Alaska identifies to support its historic inland waters claim is a litigating position taken by the United States during an arbitration proceeding in 1903. This proceeding was before the Alaskan Boundary Tribunal, a body convened to resolve a dispute between the United States and Britain regarding the land boundary between southeastern Alaska and Canada. Report 56-63, 116-119. In a written submission to the tribunal, the United States described its view of the “political coast” of Alaska as enclosing all of the Alexander Archipelago waters, as shown on the map in Appendix A, infra. 4 ABT Proceedings, pt. 1, pp. 31-32 (1903). According to the United States’ submissions, “[t]he boundary of Alaska, — that is, the exterior boundary from which the marine league [of the territorial sea] is measured, — runs along the outer edge of the Alaskan or Alexander Archipelago, embracing a group composed of hundreds of islands.” 5 id., pt. 1, at 15-16. At oral argument before the tribunal, moreover, counsel for the United States made explicit that the recognition of such a “political coast” would render all waters landward of it “just as much interior waters as the interior waters of Loch Lomond.” 7 id., at 611 (1904). Before the Special Master in the instant case, the United States sought to discount as mere hypothetical statements the submissions it had made at the tribunal a full century prior. The Special Master rejected this view and instead agreed with Alaska that in its submissions to the tribunal the United States “was expressing a considered analysis of the [Alexander Archipelago] area, not merely speaking hypothetically for the purpose of showing a flaw in Britain’s argument.” Report 61. Ultimately, however, the Special Master still concluded that the United States’ submissions to the tribunal were “not an adequate assertion of authority over the waters of the Alexander Archipelago.” Id., at 118. The Special Master noted that the issue before the 1903 tribunal was not “[t]he status of the waters of the Alexander Archipelago,” ibid., but rather the land boundary between southeast Alaska and Canada; that the United States’ declarations regarding the status of the Alexander Archipelago took up “only a few paragraphs in a seven volume record”; and that “[f]or these reasons, it would be unrealistic to conclude that counsel’s assertions at the tribunal should have made foreign nations (other than Britain) aware that the United States was asserting a right to exclude them,” ibid. Alaska responds that the Special Master was incorrect to conclude that the United States’ submissions in 1903 could not have made foreign nations other than Britain aware of its claim. Alaska argues that Norway became aware of the United States’ submissions and then relied on them in its dispute with the United Kingdom in the well-known Fisheries Case (U. K. v. Nor.)) 1951 I. C. J. 116 (Judgment of Dec. 18). As the Special Master explained, however, “[t]he ability of one foreign nation to discover the United States’ argument when litigating a related issue . .. does not mean that foreign nations should have known of the United States’ position.” Report 118, n. 34. This reasoning carries particular force in light of the precedent a contrary conclusion would create. If this Court were to recognize historic inland waters claims based on arguments made by counsel during litigation about nonmaritime boundaries, “the United States would itself become vulnerable to similarly weak claims by other nations that would restrict the freedom of the seas.” Reply Brief for United States in Response to Exceptions of the State of Alaska 15-16 (hereinafter Reply Brief for United States). We are reluctant to create a precedent that would have this effect. D The litigating position taken by the United States at the ABT Proceedings at best would provide weak support for inland status of the Alexander Archipelago waters even were we to accept it as signaling a significant change from the view expressed in Secretary Bayard’s letter of 1886; for there is little evidence that the United States later acted in a manner consistent with this litigating position. Alaska says that the United States asserted control over the waters by enacting and enforcing fishery regulations in the Alexander Archipelago during the first half of the 20th century. Exceptions and Brief for Plaintiff Alaska 25-29. In particular, Alaska cites the 1906 Alien Fishing Act, 34 Stat. 263, which prohibited foreign, but not domestic, commercial fishing “in any of the waters of Alaska.” As its sole evidence that the Act was enforced even in the pockets and enclaves at issue, Alaska cites the seizure by the United States Coast Guard in 1924 of the Canadian vessel Marguerite, whose captain was fined $100 for fishing in contravention of the Act. Assuming, arguendo, that the Marguerite was seized in one of the disputed pockets or enclaves, a point which the Special Master found unclear, Report 67-68, this one incident hardly suffices to demonstrate a continuous policy. Indeed, contrary authority exists. In 1934 the Departments of State and Commerce exchanged letters expressing their shared understanding that the United States lacked the power to enforce the Act more than three miles from the shore of any island or the mainland. Id., at 70-71 (quoting Letter from Daniel C. Roper, Secretary of Commerce, to Secretary of State 1 (Sept. 5,1934) (“ ‘Canadian fishermen may operate [in the Alexander Archipelago waters] so long as they remain outside the three mile limit’ ”); and Letter from William Phillips, Under Secretary of State, to Secretary of Commerce 1 (Sept. 13, 1934) (expressing appreciation for the assurance “ ‘that the Fishery laws and regulations will be enforced by the Bureau of Fisheries in conformity with the view that Canadian fishermen may operate [in the Alexander Archipelago waters] so long as they remain outside the three-mile limit’ ”)). This understanding was inconsistent with a view of the Alexander Archipelago waters as inland. Report 70-71,110-111. Even were the seizure of the Marguerite taken as evidence of a right asserted by the United States in 1924, the official correspondence cited by the Special Master establishes that by 1934 the United States had reverted to the position taken in Secretary Bayard’s 1886 letter. As the United States observes, furthermore, the fact that Britain protested the seizure of the Marguerite indicates that any claim of right implied from that seizure was not one in which foreign nations acquiesced. Reply Brief for United States 17, n. 10. Alaska also refers to various poststatehood events which, in its view, confirm the status of the Alexander Archipelago waters as inland waters. We find insufficient prestatehood evidence to establish inland waters status in the first place, and so we find it unnecessary to discuss these further events. At best, Alaska’s submissions before this Court establish that the United States made one official statement — in the 1903 Alaska Boundary Arbitration — describing the Alexander Archipelago waters as inland, and that the United States seized one foreign vessel — the Marguerite — in a manner arguably consistent with the status of those waters as inland. These incidents are insufficient to demonstrate the continuous assertion of exclusive authority, with acquiescence of foreign nations, necessary to support a historic inland waters claim. Alaska’s exception to the Special Master’s recommendation on count I of the Amended Complaint is overruled. IV In count II of its Amended Complaint, Alaska presents an alternative theory to justify treating the Alexander Archipelago’s waters as inland. Alaska’s alternative theory is that the waters of the Alexander Archipelago in truth consist of two vast, but as yet unnoticed, juridical bays. Waters within a juridical bay would be deemed inland waters. Art. 5(1) of the Convention, 15 U. S. T., at 1609. Thus, if accepted, Alaska’s theory would render all the Alexander Archipelago’s waters inland waters to the extent they lie within the limits of the bays Alaska identifies. For this reason, and because the United States would not be able to rebut the presumption of title that would arise from inland waters status, Alaska’s alternative theory would require the Court to accept Alaska’s claim of title to the pockets and enclaves in dispute. The parties agree that Alaska’s claimed juridical bays would exist only if four of the Alexander Archipelago’s islands — Kuiu Island, Kupreanof Island, Mitkof Island, and Dry Island — were deemed to be connected to each other and to the mainland. We have recognized that such “assimilation]” of islands fringing the mainland is possible, albeit only in “exceptional case[s]” in which “an island or group of islands ... ‘are so integrally related to the mainland that they are realistically parts of the “coast.”’” United States v. Maine, 469 U. S. 504, 517 (1985) (quoting United States v. Louisiana, 394 U. S., at 66). If the assimilation Alaska urges were accepted, the four islands Alaska has identified would form a constructive peninsula extending from the mainland and dividing the Alexander Archipelago’s waters in two. To bolster its case, Alaska labels the waters north and south of this hypothetical peninsula the “North Bay” and the “South Bay.” See Appendix B, infra (map showing Alaska’s hypothetical peninsula and the resulting bays). Were we to accept Alaska’s hypothetical peninsula, we would then be required to determine whether North Bay and South Bay in fact qualify as juridical bays under the Convention, which we have customarily consulted for purposes of “determining the line marking the seaward limit of inland waters of the States.” United States v. Maine, supra, at 513. Article 7(2) of the Convention sets forth the following geographic criteria for deciding whether a body of water qualifies as a bay: “For the purposes of these articles, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation.” 15 U. S. T., at 1609. This definition can be understood to comprise a number of elements. To apply the definition to a given body of water, one must first determine whether the body of water satisfies the descriptive test of being a “well-marked indentation.” One must then determine, among other things, whether the indentation’s area satisfies the mathematical “semi-circle” test set forth in the second sentence of Article 7(2). After due consideration of the parties’ arguments, the Special Master recommended that the Court reject Alaska’s alternative theory. The Special Master first conducted a detailed assessment of the propriety of assimilating the four islands in question in order to form the constructive peninsula so critical to Alaska’s theory. Report 147-197. Applying the principles set forth in United States v. Maine, supra, at 514-520, and United States v. Louisiana, supra, at 60-66, the Special Master concluded that assimilation would be unwarranted save for two inconsequential channels that “do not suffice to create the juridical bays alleged by Alaska.” Report 197. In the alternative, the Special Master concluded that, even were Alaska’s hypothetical peninsula accepted, neither “North Bay” nor “South Bay” could satisfy the descriptive test that a proposed bay constitute a “ ‘well-marked indentation.’” Id., at 222. Excepting to the Special Master’s recommendations, Alaska makes a detailed argument that this Court’s precedents regarding assimilation of islands support recognition of the constructive peninsula Alaska has identified. Exceptions and Brief for Plaintiff Alaska 39-45. Alaska further contends that, once this peninsula is recognized, the resulting bodies of water satisfy all the criteria set forth in the Convention. Id., at 45-49. We overrule Alaska’s exception. For the sake of brevity we assume, arguendo, that each of the islands in Alaska’s hypothetical peninsula should be assimilated one to another (though we are aware of, and Alaska itself cites, no precedent foreign or domestic in which such a massive amount of successive assimilation has been accepted for the purpose of identifying a juridical bay). Even with the benefit of this daunting doubt Alaska could not prevail, for its hypothetical bays do not satisfy the Convention’s descriptive requirement of being well-marked indentations. To qualify as a well-marked indentation, a body of water must possess physical features that would allow a mariner looking at navigational charts that do not depict bay closing lines nonetheless to perceive the bay’s limits, and hence to avoid illegal encroachment into inland waters. See G. West-erman, The Juridical Bay 82-85 (1987). Alaska’s hypothetical bays do not possess these features. We have been referred to no authority which indicates that a mariner looking at an unadorned map of the southeast Alaskan coast has ever discerned the limits of Alaska’s hypothetical bays. So subtle are these limits that even Alaska itself did not discover them until after it had filed its first complaint in this action. Compare Complaint to Quiet Title (Nov. 24,1999) with Amended Complaint (Dec. 14, 2000). The test is what mariners see, not what litigators invent. Alaska’s hypothetical bays would not be discernible to the eye of the mariner. A comparison to United States v. Maine, 469 U. S., at 514-520, makes clear the force of our conclusion. In that case the Court considered whether Long Island Sound and Block Island Sound together qualify as a juridical bay. In determining that they do, the Court held that Long Island itself should be assimilated to the mainland. Id., at 517-520. The Court then determined that the resulting indentation formed by Long Island Sound and Block Island Sound satisfied the requirements of Article 7(2) of the Convention, including the descriptive requirement of being a “well-marked indentation.” Id., at 515, 519. There is a critical difference between this body of water and the bodies of water Alaska has christened as North Bay and South Bay. Even before this Court held that Long Island Sound and Block Island Sound qualified together as a juridical bay, mariners and geographers had recognized Long Island Sound and Block Island Sound as adjacent, cohesive bodies of water — indeed, as “sound[s],” which itself is a term used to describe a wide and deep bay, or a strait connecting other bodies of water. See Webster’s Third New International Dictionary 2176 (1981) (defining “sound” as “a long and rather broad inlet of the ocean generally with its larger part extending roughly parallel to the coast”; “a long passage of water connecting two larger bodies but too wide and extensive to be termed a strait”). Nothing of the sort can be said of Alaska’s claimed bays. It is not just that no mariner and no geographer (and not even Alaska’s litigators) before this action recognized Alaska’s claimed bays as bays or sounds. It appears that no one before this action recognized Alaska’s claimed bays as constituting cohesive bodies of water at all. Even accepting the constructive peninsula Alaska has crafted out of four separate islands within the Alexander Archipelago, Alaska’s claimed bays still fail to qualify as “well-marked indentation^]” for purposes of the Convention. For this reason, we reject the alternative theory Alaska urges in count II of its Amended Complaint. Alaska’s exception to the Special Master’s recommendation on this count is overruled. Y In count IV of its Amended Complaint, Alaska claims title to the submerged lands underlying the waters of Glacier Bay National Monument (now known as Glacier Bay National Park), located at the northern end of the Alexander Archipelago. Concluding that the United States had rebutted Alaska’s presumed title to these lands, the Special Master recommended granting summary judgment to the United States. As with the other aspects of this ease, the Special Master was correct in his interpretation and application of the controlling precedents and principles, and we overrule Alaska’s exception to his recommendation. A The centerpiece of Glacier Bay National Park is Glacier Bay itself. By contrast to the bays Alaska claims in count II, Glacier Bay is a textbook example of a juridical bay. Its waters mark a dramatic indentation within the coastline of the Alaskan mainland. While the width of Glacier Bay’s mouth measures 5 miles at most, the bay’s waters stretch more than 60 miles into the mainland. See Appendix C, infra (map of Glacier Bay). Glacier Bay National Park is one of the Nation’s largest national parks, embracing over 3.2 million acres, an area larger than the State of Connecticut. Rennicke, North to Wild Alaska, National Geographic Traveler 48, 55 (July/Aug. 1994). John Muir, who first saw the bay and its surroundings in 1879, described it as a “ ‘solitude of ice and snow and newborn rocks.’” Id., at 56. One way to comprehend the solitude is to note that in the area of Glacier Bay there are still not more than 10 miles of established hiking trails. See id., at 50. As the world’s largest marine sanctuary, it is, in one sense, a water park. A ship in the waters of the Pacific in the Gulf of Alaska reaches Glacier Bay by heading shoreward to the east through Cross Sound and to Bartlett Cove, there turning to proceed through the bay in a generally northwest direction. See Appendix D, infra. The entrance to the bay near Bartlett Cove is about 100 miles northwest of Juneau and still 600 miles southeast of Anchorage. The bay owes its name to Captain Beardslee of the United States Navy, who, upon first entering the bay in 1880, was so impressed by the ice formations surrounding it that he called it Glacier Bay. 5 New Encyclopaedia Britannica 290 (15th ed. 2003). A glacier is a large formation of perennial ice. The definition used by the Special Master was a “ ‘mixture of ice and rock that moves downhill over a bed of solid rock or sediment under the influence of gravity.’” Report 246. Some of the glaciers in the region are tidewater glaciers, so called because they end at the water’s edge. Even large ships must take precautions near these glaciers, for ice can break off (a process called calving); and when a large segment plunges to the sea, it becomes an iceberg. Ibid. The weight of a glacier can cause it to move, either advancing to crush the life before it or receding to allow life forms to begin anew. At Glacier Bay some of the glaciers are advancing, some are receding, and others seem to be stable. See id., at 246-247. At least in Glacier Bay, the extreme slowness suggested by the term “glacial” is inapt, for the ice once present where the bay now extends receded with (in a geological context) astounding speed. When Captain George Vancouver visited in 1794, the bay was but 5 miles inward from Bartlett Cove, while today it penetrates inland for over 60 miles. This retreat of the ice is “considered the fastest glacial withdrawal in recorded history. ‘Unzipping,’ the geologists call it. The landscape dancing in geologic time.” Rennicke, supra, at 56. The advance and retreat of the glaciers are of great interest to scientists, and in the areas of glacial recession the submerged floor of the bay is contoured or sculptured in ways that can be studied to learn more of glacial movement and geologic formations. See Report 246-248. The immense scene is one of remarkable beauty, and the waters, which accommodate large vessels, can be calm enough so that kayaks can be used to explore the bay and its surroundings. Where glaciers have retreated either in the bay or on shore, the retreat reveals how a new life cycle begins. Plant succession is of absorbing interest. “It can be almost like a chant: lichens and algae, moss and dryas, fireweed, willows, alder, and spruce.” Rennicke, supra, at 56. The bay and the surrounding shore and forest areas of the park sustain a chain of fish, bird, and animal life. Over 200 avian species have been noted, most of these in or near the marine environment. Glacier Bay: A Guide to Glacier Bay National Park and Preserve, Alaska 78 (1983). There are mussels and crabs on the shore, and in the bay’s waters there are numerous fish, including herring and salmon. The light in the long days of summer, and the oxygen-rich waters, accelerate phytoplankton populations, and this is part of the food chain working up to the herring and salmon, then porpoises, seals, and sea lions. The bay also has whales, including the humpback whale. K. Jettmar, Alaska’s Glacier Bay: A Traveler’s Guide 53 (1997). In the 1930’s, when naturalists and other observers were supporting the movement to expand Glacier Bay National Monument beyond its initial boundaries, the brown bear became the flagship species for the cause. Declaration of Theodore R. Catton 51, Exhibits to Reply of United States in Support of Motion for Partial Summary Judgment on Count IV of Amended Complaint, Tab No. 3 (Exh. U. S. IV-3). One of the largest of omnivores, the brown bear’s food in estuarine areas includes “vegetation, invertebrates (clams, mussels, worms, barnacles, amphipods), carcasses of fish and marine mammals washed onto the beach, and winter-killed ungulates ....” Declaration of Victor Barnes 3 (Exh. U. S. IV-6). Brown bears find salmon in streams, and (with distressing frequency) they can swim to the small islands to raid the nesting places of birds and water fowl. Id., at 9. When bears swim in the bay, they are particularly vulnerable to hunters. When he was considering the proposal to extend the boundaries of the Glacier Bay National Monument, President Franklin Roosevelt was angered by accounts of bears being shot from pleasure yachts. Id., at 16. Reference to the complex ecosystem of Glacier Bay and the surrounding land is important for understanding the purposes that led the United States to create Glacier Bay National Monument. These purposes, in turn, inform the inquiry whether title to the submerged land underlying the waters of Glacier Bay National Monument passed to Alaska at statehood. See Idaho v. United States, 533 U. S. 262, 274 (2001) (describing the inquiry as encompassing the question whether “the purpose of the reservation would have been compromised if the submerged lands had passed to the State”); Alaska (Arctic Coast), 521 U. S., at 42-43 (noting that “defeating state title . . . was necessary to achieve the United States’ objective [of] securing a supply of oil and gas that would necessarily exist beneath uplands and submerged lands”). B Owing to Glacier Bay’s status as a juridical bay, its waters qualify as inland navigable waters. All the remaining waters within the boundaries of Glacier Bay National Monument as it existed at statehood, moreover, lie less than three nautical miles from the coastline. Under both the equal-footing doctrine and the SLA, therefore, a strong presumption arises that title to the lands underlying all the waters in dispute in count IV of Alaska’s Amended Complaint passed to Alaska at statehood. See id., at 5-6; see also id., at 33-86. The controlling question here is whether the United States can rebut this presumption. It is now settled that the United States can defeat a future State’s presumed title to submerged lands not only by conveyance to third parties but also by setting submerged lands aside as part of a federal reservation “such as a wildlife refuge.” Idaho v. United States, supra, at 273; Alaska (Arctic Coast), 521 U. S., at 33-34. To ascertain whether Congress has made use of that power, we conduct a two-step inquiry. We first inquire whether the United States clearly intended to include submerged lands within the reservation. If the answer is yes, we next inquire whether the United States expressed its intent to retain federal title to submerged lands within the reservation. Id., at 36; Idaho v. United States, supra, at 273. “We will not infer an intent to defeat a future State’s title to inland submerged lands 'unless the intention was definitely declared or otherwise made very plain.’” Alaska (Arctic Coast), supra, at 34 (quoting Holt State Bank, 270 U. S., at 55). After careful consideration of the parties’ arguments, the Special Master recommended granting summary judgment to the United States on Alaska’s claim of title to the submerged lands underlying Glacier Bay. Report 227-276. His recommendation rested on two conclusions that track the two-part test developed in our precedents. First, he concluded that in creating Glacier Bay National Monument the United States had reserved the submerged lands underlying Glacier Bay and the remaining waters within the monument’s boundaries. Id., at 264. Second, he concluded that § 6(e) of the ASA, 72 Stat. 340-341, note preceding 48 U. S. C. §21, pp. 320-321, expressed congressional intent to retain those submerged lands in federal ownership. Report 276. Alaska takes exception only to the Special Master’s second conclusion. We nonetheless explain the Special Master’s first conclusion (and our own), for it is a necessary part of the reasoning for the second step of the analysis. C We need not detain ourselves long with the first part of the test regarding title to submerged lands. In 1925, President Calvin Coolidge invoked the Antiquities Act of 1906, ch. 3060, 34 Stat. 225, 16 U. S. C. § 431 et seq., to create Glacier Bay National Monument. Presidential Proclamation No. 1733, 43 Stat. 1988 (1925 Proclamation). In 1939, President Franklin D. Roosevelt issued a proclamation expanding the monument to include all of Glacier Bay’s waters and to extend the monument’s western boundary three nautical miles out to sea. Presidential Proclamation No. 2330, 3 CFR 28 (Supp. 1939) (1939 Proclamation). See Appendix C, infra (depicting both the initial boundaries established by the 1925 Proclamation and the expanded boundaries established by the 1939 Proclamation). In 1955, President Dwight D. Eisenhower issued a proclamation slightly altering the monument’s boundaries, but leaving the bay’s waters within them. Presidential Proclamation No. 3089, 3 CFR 36 (1954-1958 Comp.) (1955 Proclamation). In 1980, Congress designated the monument as part of Glacier Bay National Park and Preserve and expanded the resulting reservation’s boundaries. 16 U. S. C. § 410hh — 1(1); see Appendix D, infra (map of Glacier Bay National Park). For present purposes, however, the important point is that by the time Alaska achieved statehood in 1959, the Glacier Bay National Monument had already existed for 34 years as a federal reservation. After considering the evidence submitted by both parties, the Special Master concluded that “the Glacier Bay National Monument, as it existed at the time of statehood, clearly included the submerged lands within its boundaries.” Report 263-264. According to the Special Master, the descriptions of the monument in the 1925, 1989, and 1955 Proclamations themselves showed that the monument embraced submerged lands. Id., at 232-242. The Special Master also considered it significant that exclusion of the submerged lands would have undermined at least three of the purposes that led the United States to create Glacier Bay National Monument. Exclusion of the submerged lands would impair scientific study of the majestic tidewater glaciers surrounding the bay. Id., at 245-251. It would also impair efforts both to study and to preserve the remnants of “‘interglacial forests/” which can be found both above and below the tideline. Id., at 251-253. Finally, exclusion of the submerged lands would compromise the goal of safeguarding the flora and fauna that thrive in Glacier Bay’s complex and interdependent ecosystem. Id., at 253-263. The Special Master, in our view, had ample support for his conclusions that all . of these were purposes for creation of the monument, and each would be compromised were it to be determined that submerged lands were not included in the monument. His ultimate determination, that Glacier Bay National Monument included the submerged lands within its boundaries, has strong support in the precedents and in the whole record of the case. Alaska has not filed a formal exception to this determination, and the four-sentence footnote in Alaska’s brief which expresses disagreement with it, Exceptions and Brief for Plaintiff Alaska 10-11, n. 4, does not in our view suffice to impeach its validity. D Having established the proposition that the Glacier Bay National Monument, at the time of Alaska’s statehood, included the submerged lands underlying Glacier Bay, we turn to the remaining question: whether the United States “‘definitely declared or otherwise made very plain’” its intent to defeat Alaska’s title to these submerged lands. Alaska (Arctic Coast), 521 U. S., at 34 (quoting Holt State Bank, 270 U. S., at 55). 1 The requisite expression of intent might conceivably reside in the very proclamations that invoked the Antiquities Act of 1906 to create and then expand Glacier Bay National Monument. It is clear, after all, that the Antiquities Act empowers the President to reserve submerged lands. United States v. California, 436 U. S. 32, 36 (1978). An essential purpose of monuments created pursuant to the Antiquities Act, furthermore, is “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 16 U. S. C. § 1. Prom these two premises it would require little additional effort to reach a holding that the Antiquities Act itself delegated to the President sufficient power not only to reserve submerged lands but also to defeat a future State’s title to them. Given the reasons motivating the creation of Glacier Bay National Monument and the overall complexity of the Glacier Bay ecosystem, it would be unsurprising to find that the relevant proclamations manifested intent to retain federal title. One amicus has advanced this argument at length, and the United States foreshadows it in a footnote. See Brief for National Parks Conservation Association as Amicus Curiae 6-7,13-16; Reply Brief for United States 32, n. 20. If true, this argument would provide a powerful alternative basis for agreeing with the Special Master’s recommendation to grant summary judgment to the United States with respect to Alaska’s claim of title to the submerged lands underlying Glacier Bay. We need pursue this alternative basis no further, however. In our view the provisions of the ASA themselves suffice to overcome the state, ownership presumption arising from the equal-footing doctrine and the SLA and to reserve the submerged lands in Glacier Bay to the United States. 2 The Special Master agreed with the United States that Congress expressed an intent to retain title to all of Glacier Bay National Monument, including the submerged lands within it, in § 6(e) of the ASA. Report 276. To understand § 6(e), we begin by considering its context within the ASA, its text, and the construction we have given to it in an earlier case. Section 5 of the ASA sets forth a guiding principle regarding title to property within Alaska’s boundaries: “The State of Alaska and its political subdivisions, respectively, shall have and retain title to all property, real and personal, title to which is in the Territory of Alaska or any of the subdivisions. Except as provided in section 6 hereof, the United States shall retain title to all property, real and personal, to which it has title, including public lands.” 72 Stat. 340. Based on this provision, the new State of Alaska acquired title to any property previously belonging to the Territory of Alaska. The United States, in turn, retained title to its property located within Alaska’s borders, “including public lands,” subject to certain exceptions set forth in §6 of the ASA. One of those exceptions is contained in § 6(e), which provides in pertinent part: “All real and personal property of the United States situated in the Territory of Alaska which is specifically used for the sole purpose of conservation and protection of the fisheries and wildlife of Alaska, under the provisions of the Alaska game law of July 1, 1943 (57 Stat. 301; 48 U. S. C., secs. 192-211), as amended, and under the provisions of the Alaska commercial fisheries laws of June 26, 1906 (34 Stat. 478; 48 U. S. C., secs. 230-239 and 241-242), and June 6, 1924 (43 Stat. 465; 48 U. S. C., secs. 221-228), as supplemented and amended, shall be transferred and conveyed to the State of Alaska by the appropriate Federal agency: . . . Provided, That such transfer shall not include lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife nor facilities utilized in connection therewith, or in connection with general research activities relating to fisheries or wildlife.” Id., at 340-341. The first quoted part of §6(e), the initial clause, directs a transfer to Alaska of any federal property located in Alaska and used “for the sole purpose of conservation and protection of the fisheries and wildlife of Alaska” under three particular federal game and wildlife laws. The next quoted part, the proviso, makes clear that the transfer directive in the initial clause has no application to “lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife.” In Alaska (Arctic Coast), we held that the proviso of § 6(e) expressed congressional intent to retain title to a reservation such as the Arctic National Wildlife Refuge (ANWR), and that the statute’s declaration of intent was sufficient to defeat Alaska’s presumed title under both the equal-footing doctrine and the SLA. “In § 6(e) of the Statehood Act, Congress clearly contemplated continued federal ownership of certain submerged lands — both inland submerged lands and submerged lands beneath the territorial sea — so long as those submerged lands were among those ‘withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife.’ ” 521 U. S., at 56-57 (quoting § 6(e)). If the proviso of §6(e) applies to Glacier Bay National Monument, as we held it applied to the ANWR in Alaska (Arctic Coast), then it follows that title to the submerged lands underlying Glacier Bay did not pass to Alaska at statehood. To avoid this reasoning, Alaska first argues that the proviso is limited in scope to federal property already covered by the initial clause; because Glacier Bay is not covered by the initial clause, the State contends, it is not covered by the proviso either. Alaska next argues that even assuming the scope of the proviso is broader than the initial clause, Glacier Bay was not “set apart” “for the protection of wildlife.” We reject both of Alaska’s arguments. a Regarding the relationship between the initial clause and the proviso, Alaska contends the proviso applies only to wildlife refuges or reservations set aside under the three particular federal game and wildlife statutes named in the initial clause. Glacier Bay National Monument was not set aside under any of these particular statutes, of course; so Alaska says that omission from the initial clause dictates omission from the proviso. The United States counters that the initial clause is confined to specific property but that the proviso is a statement of intent to retain federal title which extends to all reservations thus described without regard to the specific statutory authority under which the reservations were set aside. As the Special Master noted, generalizations about the relationship between a proviso and a preceding clause prove to be of little help in resolving the parties’ disagreement about the scope of § 6(e)’s proviso. Report 268. Though it may be customary to use a proviso to refer only to things covered by a preceding clause, it is also possible to use a proviso to state a general, independent rule. “[A] proviso is not always limited in its effect to the part of the enactment with which it is immediately associated; it may apply generally to all cases within the meaning of the language used.” McDonald v. United States, 279 U. S. 12, 21 (1929); see also 2A N. Singer, Statutes and Statutory Construction § 47:08, p. 238 (rev. 6th ed. 2000). We conclude that Alaska’s narrow reading of the proviso is neither necessary nor preferred. Section 6(e) begins with specificity. It covers “[a]ll real and personal property” “specifically used for the sole purpose of conservation and protection of the fisheries and wildlife of Alaska” as identified under three particular federal game and wildlife laws. Those provisions, in turn, make clear that the initial clause’s transfer requirement applies to facilities such as certain fish hatcheries, and likely would include specific types of equipment or even vehicles. Having thus transferred the identified “property,” the section proceeds to state a more general reservation, using the word “lands.” “Provided, [t]hat such transfer shall not include lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife nor facilities ....” The lands here in question were in fact “withdrawn or otherwise set apart,” that is to say by the proclamations which created the monument. Though it may not be the usual style, it does not strike us as illogical for the draftsperson of a statute to write it so that it transfers some specific real and personal property and then proceeds to reserve lands in a much larger classification. Alaska’s insistence that the proviso must be limited to what is contained at the outset is foreclosed as well by the decision in Alaska (Arctic Coast). In the proceedings leading up to that decision, Alaska had argued that § 6(e)’s proviso did nothing more than to except lands from the transfer effected in § 6(e)’s initial clause. In Alaska’s view, even lands covered by the proviso could still be transferred by virtue of the SLA made applicable to Alaska via § 6(m) of the ASA. See Reply Brief for State of Alaska in United States v. Alaska, O. T. 1996, No. 84, Orig., pp. 44-45. The Court rejected Alaska’s view: “If [the Arctic National Wildlife Range is covered by §6(e)’s proviso], then the United States retained title to submerged lands as well as uplands within the Range. This is so despite §6(m) of the Statehood Act, which applied the Submerged Lands Act of 1953 to Alaska. The Submerged Lands Act operated to confirm Alaska’s title to equal footing lands and to transfer title to submerged lands beneath the territorial sea to Alaska at statehood, unless the United States clearly withheld submerged lands within either category prior to statehood. In §6(e) of the Statehood Act, Congress clearly contemplated continued federal ownership of certain submerged lands — both inland submerged lands and submerged lands beneath the territorial sea — so long as those submerged lands were among those ‘withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife.’ ” 521 U. S., at 56-57 (emphasis in original). Thus we have held that § 6(e)’s proviso operates not just negatively and parasitically, only to except refuges or reservations “set apart” for “the protection of wildlife” from the transfer effected by §6(e)’s main clause, but also affirmatively and independently, as an expression of Congress’ intent to retain federal ownership over all lands within such reservations. This affirmative and independent expression of intent logically applies with just as much force to reservations that fall within § 6(e)’s initial clause as to those that do not. It would have made little sense for Congress to differentiate between those two sets of reservations in making the broad statement of intent we have construed § 6(e)’s proviso to set forth. It would have made even less sense to differentiate in such a way as to exclude reservations set aside pursuant to the Antiquities Act, like Glacier Bay National Monument. The differentiation suggested by Alaska’s reading, moreover, cannot be discerned from the text of §6(e)’s proviso, which covers all reservations set aside “for the protection of wildlife,” regardless of the specific authority under which those reservations were set aside. Alaska is correct to note that our decision in Alaska (Arctic Coast) did not directly address the relationship between the initial clause and the proviso in §6(e). As Alaska observes, it appears that we assumed the ANWR would fall within § 6(e)’s initial clause were it not for the proviso. Id., at 60-61. For the reasons we have explained, however, the broad construction we gave to the proviso in Alaska (Arctic Coast) of necessity carries consequences for the relationship between it and the initial clause. b Anticipating the possibility that its narrow interpretation of the proviso might be rejected, Alaska raises one last argument. The proviso does not reach Glacier Bay even under a broad view of the proviso’s scope, Alaska contends, because Glacier Bay was not set apart “for the protection of wildlife” within the meaning of § 6(e). This argument can be rejected without extended discussion. As the Special Master noted and as we have recognized, Congress has made clear that one of the fundamental purposes of wildlife reservations set apart pursuant to the Antiquities Act is “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 16 U. S. C. § 1. Because Glacier Bay National Monument serves as habitat for many forms of wildlife, it was set aside in part for its preservation. Any doubt as to this conclusion is dispelled by reference to the Presidential proclamations setting aside the monument, for the proclamations identify the study of flora and fauna as one of the express purposes of the reservation. 1925 Proclamation, 43 Stat. 1988; 1939 Proclamation, 3 CFR 28 (Supp. 1939). As the Special Master observed, the study of flora and fauna necessarily requires their preservation. Report 274. In sum we agree with the United States that the proviso is best read, in light of our prior interpretation of it in Alaska (Arctic Coast), as expressing an independent and general rule uncoupled from the initial clause. Under the initial clause the United States obligated itself to transfer to Alaska equipment and other property used for general fish and wildlife management responsibilities Alaska was to undertake upon acquiring statehood. Under the proviso the United States expressed its intent, notwithstanding this property transfer, to retain ownership over all federal refuges and reservations set aside for the protection of wildlife, regardless of the specific statutory authority enabling the set-aside. This expression of intent encompassed Glacier Bay National Monument, which was set aside “for the protection of wildlife” within the meaning of § 6(e). The text thus defeated the presumption that the new State of Alaska would acquire title to the submerged lands underlying the monument’s waters, including the inland waters of Glacier Bay. Alaska’s exception to the Special Master’s recommendation on count IV of Alaska’s Amended Complaint is overruled. VI For the foregoing reasons, we overrule each of Alaska’s exceptions to the Special Master’s recommendations. Alaska shall take title neither to the submerged lands underlying the pockets and enclaves of water at issue in counts I and II of its Amended Complaint nor to the submerged lands underlying the waters of Glacier Bay at issue in count IV. As to count III of Alaska’s Amended Complaint, the parties and the Special Master are in agreement that this Court should confirm the United States’ proposed disclaimer of title. The proposed disclaimer is hereby accepted. The parties are directed to prepare and submit to the Special Master an appropriate proposed decree for the Court’s consideration. The Court retains jurisdiction to entertain such proceedings, enter such orders, and issue such writs as may become necessary or advisable to effect and supplement the forthcoming decree and the respective rights of the parties. It is so ordered. [Appendixes A, B, C, and D to opinion of the Court follow this page.]

Alaska v. United States

Justice Scalia, with whom The Chief Justice and Justice Thomas join, concurring in part and dissenting in part. I join all of the Court’s opinion, except for Part V and the related portions of Part VI. I do not agree with the conclusion that the United States expressly retained title to submerged lands within Glacier Bay National Monument (Monument) at the time of Alaskan statehood. The Court holds that the United States has rebutted the “strong presumption” that submerged lands passed to Alaska when it became a State. Ante, at 100,110. That presumption inheres in the equal-footing doctrine, but is given particular strength and specificity in this case by §6(m) of the Alaska Statehood Act, 72 Stat. 343, which incorporated the Submerged Lands Act of 1953, including the confirmation that a State owns all “lands beneath navigable waters within [its] boundaries” unless (as relevant here) they were “expressly retained by or ceded to the United States when the State entered the Union,” 43 U. S. C. §§ 1311(a), 1313(a) (emphasis added). The Court acknowledges that state title to submerged lands cannot be defeated “ ‘ “unless the intention was definitely declared or otherwise made very plain.”’” Ante, at 100 (quoting United States v. Alaska, 521 U. S. 1, 34 (1997) (Alaska (Arctic Coast)), in turn quoting United States v. Holt State Bank, 270 U. S. 49, 55 (1926)). Though the Court makes a dictal feint toward the Antiquities Act of 1906, ante, at 103, its holding relies on only a single proviso to §6(e) of the Alaska Statehood Act, ante, at 104-110. That proviso seems to me anything but a “ Very plain’ ” or “clear” retention of the Monument’s submerged lands. Alaska (Arctic Coast), supra, at 34, 57. Indeed, the Court’s own evaluation of the parties’ textual arguments is candidly lukewarm toward the United States’ position. Alaska’s doomed construction of the proviso is deemed to be “neither necessary nor preferred,” ante, at 107 — not exactly a death knell when Alaska’s opponent is subject to the dear-statement requirement. The Court applauds the United States’ construction — the victorious, allegedly “clear” one— just for being “not. . . illogical,” and admits that that construction means the statute was not written in “the usual style.” Ibid. The statutory text fully justifies this lack of exuberance. Section 5 of the Alaska Statehood Act established a general rule that “the United States shall retain title to all property ... to which it has title . . . .” 72 Stat. 340. Section 6(m), by incorporating the Submerged Lands Act, generally excepted submerged lands from that rule. Id., at 343. Another exception to the rule of U. S. retention was §6(e), which consisted of two relevant parts: the main clause, which required the “transfe[r] and conveyance] to the State of Alaska” of “[a]ll real and personal property of the United States ... specifically used for the sole purpose of conservation and protection of the fisheries and wildlife of Alaska, under [certain statutory provisions],” id., at 340; and the proviso, which said “[t]hat such transfer shall not include lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife,” id., at 341. The short of the matter is that if the proviso created only an exception from the preceding main clause, it did not reserve Glacier Bay (which was not covered by the main clause) for the United States; whereas if it was an independent and freestanding reservation, it did. The Court unconvincingly attempts to sever the proviso from its statutory text and context. It is true enough that by accumulation of sloppy usage a proviso need not, simply by reason of its introductory words (“provided that”), always be taken as a limitation only upon the preceding clause. Ante, at 106. But the Court fatally fails to cope with the actual text of this particular proviso. It claims, ante, at 107, that §6(e) moves from a specific main clause (“[a]ll real and personal property” under three statutes) to a general proviso (“lands withdrawn ... as refuges”). But “lands” is not inherently more general than “real... property” and there is no reason whatever why the qualified former (“lands withdrawn ... as refuges”) cannot be a subset of the qualified latter (“real... property” under three statutes). Moreover, the Court disregards obvious clues to the relationship between these two parts of §6(e). It makes no attempt to identify the antecedent for the proviso’s reference to “such transfer.” (Emphasis added.) As it happens, the main clause of §6(e) contains the only mention of a “transfe[r]” in the Statehood Act that precedes the proviso, making it the only logical antecedent. Thus, the word “such” indicates the natural, structural tie between §6(e)’s main clause and its proviso, making it quite clear that the proviso does not reserve to the United States all “lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife,” but rather only the lands of that description covered by the preceding main clause. Moreover, the proviso is phrased as a carveout (“such transfer shall not include lands”) rather than a freestanding rule (e. g., “no transfer shall include lands” or “lands shall not be transferred”). In sum, the text amply supports Alaska’s claim that the proviso operates as an exception to the main clause, and not the Court’s conclusion that it is “an independent and general rule uncoupled from [that] clause,” ante, at 110. The Court also contends that its 1997 decision in Alaska (Arctic Coast) “foreclose^]” Alaska’s argument that the proviso operates as an exception to the main clause of §6(e). Ante, at 107. That conclusion follows from neither the holding of Alaska (Arctic Coast) nor any reasonable extension of its underlying rationale. As the Court acknowledges, ante, at 109, “Alaska (Arctic Coast) did not directly address the relationship between the initial clause and the proviso in § 6(e).” It quoted them as if they were a single, unitary rule, 521 U. S., at 55, and, as the United States concedes, the Court “assum[ed] with no briefing,” Tr. of Oral Arg. 34, that the refuge at issue fell within the scope of the main clause of §6(e). Given that assumption, the case does not stand for the proposition that the proviso is a freestanding provision; a proviso limited to the main clause would have the same effect. Or to put the point differently: Alaska (Arctic Coast) holds that what the proviso takes out of § 6(e) it also takes out of § 6(m). In the present case, however, it is undisputed that Glacier Bay is not within §6(e), and so is not removed from §6(e) by the proviso. Nothing in Alaska (Arctic Coast) suggests that the proviso alone operated “affirmatively and independently,” ante, at 108, to trump § 6(m). The Court is thus knocking down a straw man when it says that, if the proviso can trump §6(m), it would make “little sense” to cabin it with the main clause of § 6(e), ibid. It was not the proviso that trumped §6(m), but the proviso’s removal of land from the exception of § 6(e). There is no such removal here. The only part of the Court’s opinion on Glacier Bay that displays genuine enthusiasm is its Ursine Rhapsody, which implies that federal ownership of submerged lands is critical to ensuring that brown bears will not be shot from the decks of pleasure yachts during their “distressing[ly] frequen[t]” swims to islands where they feast on seabirds and seabird eggs. Ante, at 99. Surely this is irrelevant to interpretation of the Alaska Statehood Act, unless there is some principle of construction that texts say what the Supreme Court thinks they ought to have said. But besides being irrelevant, it is not even true. Many (though perhaps not all) means of fulfilling the Monument’s purposes could be achieved without federal ownership of the submerged lands within the Monument. If title to submerged lands passed to Alaska, the Federal Government would still retain significant authority to regulate activities in the waters of Glacier Bay by virtue of its dominant navigational servitude, other aspects of the Commerce Clause, and even the treaty power. See, e. g., 43 U. S. C. § 1314(a) (under the Submerged Lands Act, the United States retains “powers of regulation and control of . . . navigable waters for the constitutional purposes of commerce [and] navigation”); United States v. Morrison, 529 U. S. 598, 609 (2000) (Congress may “regulate the use of the channels of interstate commerce” and “protect the instrumentalities of interstate commerce, or persons or things in interstate commerce” (internal quotation marks omitted)); United States v. Alaska, 503 U. S. 569, 577-583 (1992) (the Secretary of the Army may consider effects upon recreation, fish and wildlife, natural resources, and other public interests when refusing to permit structures or discharges in navigable waters that have “no effect on navigation”); United States v. California, 436 U. S. 32, 41, and n. 18 (1978) (noting that the United States retained “its navigational servitude” even when California took the “proprietary and administrative interests” in submerged lands surrounding islands in a national monument); Douglas v. Seacoast Products, Inc., 431 U. S. 265, 284-287 (1977) (finding state regulation of commercial fishing partially pre-empted by federal statute); Letter from W. C. Henderson, Acting Chief, Bureau of Biological Survey, Dept, of Agriculture, to Stephen T. Mather, Director, National Park Service (Nov. 4, 1926), Alaska Exh. AK-405 (noting that a colony of eider ducks in and near the Monument was “protected at all times by the Migratory Bird Treaty Act and Regulations thereunder”). It is thus unsurprising that States own submerged lands in other federal water parks, such as the California Coastal National Monument and the Boundary Waters Canoe Area in Minnesota. See California, supra, at 37; Brief for National Parks Conservation Association as Amicus Curiae 30. I would probably find for Alaska on the Glacier Bay issue even if the United States did not have to overcome the obstacle of “very plain” retention. With the addition of that well-established requirement, the ease is not even close. Because neither text, nor context, nor precedent compels the conclusion that the Alaska Statehood Act expressly retained the Monument’s submerged lands for the United States, I cannot agree with the Court’s conclusion that the United States deserves summary judgment on count IV of Alaska’s amended complaint. The only other mention of a “transfe[r]” in § 6 appeared in subsection (k), which “confirmed and transferred” all grants previously made to the Territory of Alaska. 72 Stat. 343. It is presumptively true that the seabirds consider these visits distressingly frequent, and demonstrably true that the brown bears do not. It is unclear why this Court should take sides in the controversy. The United States presented evidence that, even before the Monument was established, some scientists had studied the bottom of Glacier Bay and its relationship with the glaciers by taking soundings of the water’s depth. Memorandum in Support of Motion of the United States for Partial Summary Judgment on Count IV of the Amended Complaint 13. Similar but more sophisticated studies, involving acoustic mapping and sonar imaging of gouges in the floor of the bay, are conducted today. App. 5 to Declaration of Tomie Patrick Lee, Exhibits to Reply of United States in Support of Motion for Partial Summary Judgment on Count IV of Amended Complaint, Tab No. 8, pp. 93-94 (Exh. U. S. IV-8). Alaska’s ownership of submerged lands should not hinder such studies, generally conducted from vessels on the water’s surface. But the United States also noted that other, newer means of scientific study — such as withdrawing core samples from submerged lands and installing listening devices on the surface of submerged lands — would require Alaska’s cooperation. Tr. of Oral Arg. 40.

United States v. Stoeco Homes, Inc.

OPINION OF THE COURT GIBBONS, Circuit Judge. The defendant Stoeco Homes, Inc. (hereinafter Stoeco) appeals from an order issued in a suit by the United States of America which permanently enjoined Stoeco from engaging in or permitting any dredge, fill or construction operations in an area in Ocean City, New Jersey, bordered by Bay Avenue, Tennessee Avenue, Spruce Road, and the Back Thorofare of the Intercoastal Waterway, without the prior recommendation of the Army Corps of Engineers and approval of the Secretary of the Army. The government’s suit alleges violations of the Rivers and Harbors Appropriation Act of 1899, ch. 425, 30 Stat. 1151, 33 U.S.C. § 401 et seq. Stoeco has for many years been engaged in the creation of waterfront homesites by dredging and bulkheading lagoons and pumping the dredged materials to adjoining uplands. It acquired the premises in question in 1951 from Ocean City. At the time of this acquisition the land area was substantially above mean high tide. The government contends, however, that prior to 1927 the entire area was a salt water marsh, subject to the ebb and flow of the tide, and that in 1927 R. L. Chester Company, the City’s predecessor in title, hydraulically filled the marsh to form firm land suitable for residential development. The land, in 1951, was vacant and overgrown by bayberry. It was bounded on the southwesterly side by Tennessee Avenue, an improved street, on the southeasterly side by Bay Avenue, an improved street, on the northeasterly side by Spruce Road and irregularly on the north, northwesterly and westerly side by Back Thorofare, a part of the Inter-coastal Waterway passing through Great Egg Harbor Bay, a tidal estuary. In October, 1951 Stoeco filed with the Army Corps of Engineers a plan (Page 6 of Exhibit P-19) to dredge from Back Thorofare to the premises in question two separate waterway openings. The plan discloses an intention to create, within the premises in question, two separate internal waterway systems. The more northerly opening was tó be 500 feet wide at the 1951 high water line. The lagoon system developed off that entrance, now known as Sunny Harbor, does not figure in this litigation. Off the more southerly opening Stoeco proposed to construct what is now known as South Harbor. South Harbor and its tributaries is the subject matter of this litigation and will be described more fully hereafter. On November 2, 1951 the Army Corps of Engineers granted a permit to dredge the two openings to Back Thorofare provided the work was completed by December 31, 1955. The two openings to Back Thorofare were completed within the specified time and the work was inspected and approved by the Army Corps of Engineers on June 16, 1955. (Page 2 of Exhibit P-19) Thereafter work on the internal lagoon systems was suspended while certain resident taxpayers of Ocean City challenged the validity of Stoeco’s title. The contention was that the grantee had not improved the area as rapidly as the conveyance contemplated, and that there should be a forfeiture. See Oldfield v. Stoeco Homes, Inc., 26 N.J. 246, 139 A.2d 291 (1958). After that litigation terminated in its favor Stoeco resumed its development, but with a revised plot plan. No change was made in the openings to Back Thorofare, but within the premises in question the lagoon arrangement was revised from that shown on the 1951 application. It should be understood that the 1951 application dealt only with access to the Intercoastal Waterway, not with the internal lagoons. The change, insofar as the South Harbor area is concerned, was from an arrangement in which, from a point near the access to Back Thorofare the harbor was to divide into two long lagoons running parallel to Tennessee Avenue toward Bay Avenue, to an arrangement in which one wider lagoon was to be excavated, running parallel to Tennessee Avenue toward Bay Avenue (South Harbor) and off this main channel, at right angles, parallel to Bay Avenue, five additional lagoons would be excavated on each side. No application was made to the Army Corps of Engineers with respect to the modified plan. In August 1972, when this suit commenced, the Sunny Harbor part of the development had been completed, sold as homesites and occupied. South Harbor had been completely excavated from Back Thorofare parallel to Tennessee Avenue to a point near Bay Avenue. Off the northeasterly side of South Harbor the five perpendicular lagoons had been completely excavated. These lagoons had been bulkheaded, as had the northeasterly side of South Harbor. All the land on that side of South Harbor had been sold off as homesites, and homes had been erected and occupied. The area between South Harbor and Tennessee Avenue remained undeveloped. Stoeco had substantially completed excavation of three of the five perpendicular lagoons, and had partially completed bulkheading of those three. On April 23, 1971 the Army Corps of Engineers had for the first time taken the position that the South Harbor operations required a permit. Stoeco contested that position and continued operations until enjoined. Stoeco’s method of excavation is to dredge a mixture of solids and water from the excavated area to an upland area surrounded by a manmade dike. The heavier solids settle within the dike and the water flows back, through runoff pipes in the dike, to the lagoons already excavated. The district court found that the runoff pipes returned fines to the lagoons, which tended to cause silting in these lagoons and that occasionally the dikes failed, with a similar result. Such silting has obstructed navigation in South Harbor and in Cayman Harbor, one of the incomplete lagoons running from South Harbor toward Tennessee Avenue. These findings are not clearly erroneous. The district court also found that all of the premises in question between South Harbor and Tennessee Avenue — indeed all of Stoeco’s development including those parts already built upon — is within the navigable waters of the United States. We will make more specific reference to the evidence supporting that finding hereafter. The government contends that the foregoing establishes two violations of the Rivers and Harbors Appropriation Act of 1899. First, it contends that the discharge of silt into South Harbor and Cayman Harbor violates 33 U.S.C. § 407 (originally enacted as Rivers and Harbors Appropriation Act of March 3, 1899, ch. 425, § 13, 30 Stat. 1153 (hereinafter § 13) ) which prohibits the discharge of refuse matter into ány navigable water of the United States. Next, it contends that even if the silting were prevented, since the entire premises in question, though substantially above mean high tide at present, is within the navigable waters of the United States, excavation of the lagoons without a permit violates 33 U.S.C. § 403 (originally enacted as Rivers and Harbors Appropriation Act of March 3, 1899, ch. 425, § 10, 30 Stat. 1151 (hereinafter § 10) ). The district court accepted both contentions and issued an injunction not only against silting of the lagoons but against any improvement of the premises without an Army Corps of Engineers recommendation and an authorization by the Secretary of the Army. Stoeco contends on appeal: (1) that the silting did not take place in the navigable waters of the United States, (2) that even if it did the injunction in its present breadth cannot be sustained on that basis, and (3) that the government has not established that the premises in question are within the navigable waters of the United States. I. The § 10 Violation Since, the broadest government contention, that all of Stoeco’s land — indeed all of the land it has developed and sold off — is within the navigable waters of the United States, would, if accepted, amply justify the court’s broad injunction, we start our analysis with this § 10 claim. That claim must be considered in light of the fact that the government’s permit policy with respect to § 10 was changed in 1970. Prior to May 27, 1970 it was the policy not to require § 10 permits for construction shoreward of established harbor lines. That policy is reflected in Exhibit P-19. On May 27, 1970 the Army Corps of Engineers announced a new policy, 35 Fed.Reg. 8280 which appears at 33 C.F.R. § 209.150: “(a) Definition. The term ‘harbor line(s)’ is used here in its generic sense. It includes types of harbor lines frequently referred to by other names, including, for example, pier-head lines and bulkhead lines. (b) Policies, practices and procedures. (1) Under previous policies, practices and procedures, riparian owners could erect open pile structures, or undertake solid fill construction shoreward of established harbor lines without obtaining a permit under 33 U.S. C. 403. This was a matter of great concern, particularly in cases involving long established harbor lines, since all factors affecting the public interest may not have been taken into account at the time the lines were established. Accordingly, under previous policies, practices and procedures there was the danger that work shoreward of existing harbor lines could be undertaken without appropriate consideration having been given to the impact which such work may have on the environment, and without a judgment having been made as to whether or not the work was, on balance, in the public interest. (2) In order to assure that the public interest will be considered and protected in all instances, all existing and future harbor lines are declared to be guidelines for defining, with respect to the impact on navigation interests alone, the offshore limits of open pile structures (pierhead lines) or fills (bulkhead lines). A permit under 33 U.S.C. 403 will be required in each ease for any work which is commenced shoreward of existing or future harbor lines after the date of publication of this regulation in the Federal Register. Applications for permits for work in navigable waters shoreward of harbor lines shall be filed and processed in accordance with the provisions of applicable sections of this part. For work already completed or commenced in conformance with existing harbor line authority before that date, no permit is required.” Stoeeo contends that the 1951 permit was granted under the former policy, and that the only work which was done seaward of harbor lines established in Back Thorofare was that permitted by the 1951 permit. The district court ruled: “Defendant argues that the Government established federal harbor lines or ratified State harbor lines and that as a result it was relieved of the requirement to obtain a permit for work done shoreward of those harbor lines. This is incorrect in fact and in law. The Federal Government has not established harbor lines in the Back Thorofare area, nor has it, otherwise, ratified or adopted whatever State harbor lines may exist in this area. The presence of federal harbor lines, however, is irrelevant to the requirement of obtaining an appropriate federal permit for work in navigable waters.” United States v. Stoeco Homes, Inc., 359 F.Supp. 672, 678 (D.N.J. 1973). This ruling makes no mention of 33 C. F.R. § 209.150, and is inconsistent with the apparent meaning of that regulation. The regulation appears to refer to actual harbor lines established by any authority. Exhibit P-19 suggests strongly that at least in 1951 the Army Corps of Engineers recognized some harbor lines in Great Egg Harbor seaward of the former marshlands developed by Stoeeo. The Secretary of the Army has authority to establish harbor lines. 33 U.S.C. § 404 (originally enacted as Rivers and Harbors Appropriation Act of March 3, 1899, ch. 425, § 11, 30 Stat. 1151 (hereinafter § 11)). The government offered no evidence that after South Harbor'was excavated the Secretary of the Army established such lines in South Harbor. We are hampered in our consideration of the possible effect of 33 C. F.R. § 209.150(b)(2) by the fact that the district court made no reference to it. If that provision applies, it together with the 1951 permit, would seem to justify continuance of Stoeco’s project without a further permit, even if the premises in question is within the navigable waters of the United States. Assuming for discussion, however, that 33 C.F.R. § 209.150(b)(2) does not apply, the government’s attempt to require a permit now depends upon a showing that the solid land which Stoeeo is excavating is within the navigable waters of the United States. The government does not contend that by excavating (the silting problem aside) Stoeco is modifying “the course, location, condition, or capacity” of Great Egg Harbor. See § 10. It rests its right to the broad injunction granted on the claim that prior to 1927 the premises in question was an estuarine tidal marsh. The Army Corps of Engineers has defined the navigable waters of the United States in 33 C.F.R. § 209.260: “(a) Purpose and scope. This section defines the term ‘navigable waters of the United States’ as it is used to define authorities of the Corps of Engineers. It also prescribes the policy, practice, and procedure to be used in determining the extent of the jurisdiction of the Corps of Engineers and in answering inquiries concerning ‘navigable waters.’ (b) General policies. The term ‘navigable waters of the United States’ is used to define the scope and extent of the regulatory powers of the Federal Government. Precise definitions of ‘navigable waters’ or ‘navigability’ are ultimately dependent on judicial interpretation, and cannot be made conclusively by administrative agencies. However, the policies and criteria contained in this section are in close conformance with the tests used by the Federal courts and determinations made under this section are considered binding in regard to the activities of the Corps of Engineers. (c) General definition. Navigable waters of the United States are those waters which are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the water body, and- is not extinguished by later actions or events which impede or destroy navigable capacity. (d) General scope of determination. The several factors which must be examined when making a determination whether a water body is a navigable water of the United States are discussed in detail below. Generally, the following conditions must be satisfied: (1) Past, present, or potential presence of interstate or foreign commerce; (2) Physical capabilities for use by commerce as in subparagraph (1) of this paragraph; (3) Defined geographic limits of the water body. * * * * * * (k) Geographic and jurisdictional limits of oceanic and tidal waters— (1) Ocean and coastal waters. The navigable waters of the United States over which Corps of Engineers regulatory jurisdiction extends include all ocean and coastal waters within a zone 3 geographic (nautical) miles seaward from the coast line. Wider zones are recognized for special regulatory powers, such as those exercised over the Outer Continental Shelf. ****** (2) Bays and estuaries. Regulatory jurisdiction extends to the entire surface and bed of all water bodies subject to tidal action. Jurisdiction thus extends to the edge (as determined by paragraph (k) (1) (ii) of this section, ‘Shoreward Limit’) of all such water bodies, even though portions of the water body may be extremely shallow, or obstructed by shoals, vegetation, or other barriers. Marshlands and similar areas are thus considered ‘navigable in law,’ but only so far as the area is subject to innundation [sic] by the mean high waters. The relevant test is therefore the presence of the mean high tidal waters, and not the general test described above, which generally applies to inland rivers and lakes.” This definition, which was promulgated in September 1972, 37 Fed.Reg. 18290, 18911 reflects the government’s position that estuarine tidal marshland which was at anytime subject to inundation by mean high tide is perpetually subject to the navigational servitude of the United States. That position was accepted by the district court and has been accepted by one other district court and approved by the Fifth Circuit, at least with respect to marshland still in that state. See United States v. Lewis, 355 F.Supp. 1132 (S.D.Ga.1973). Cf. Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971). Stoeco challenges both the legal position and, in this instance, the factual premise for its application. It contends the finding that the area was once a tidal marsh is not supported by any reliable evidence. But more fundamentally, it challenges the constitutionality of a navigational servitude of the extent defined in 33 C.F.R. § 209.260(k) (2). The evidence supporting the government’s contention that the premises in question was once a marsh subject to the ebb and flow of the tide is hardly overwhelming. It produced Exhibit P-22, which is Atlas Sheet No. 36, New Jersey Department of Conservation and Economic Development, 1916 Revision, and the testimony of Harold Barker, Jr., an employee of the State of New Jersey. Barker testified that Exhibit P-22 showed the premises in question to be a tidal marsh in 1916, and that other State records established that the entire area was hydraulically filled by R. L. Chester Company in 1927. The extent of ebb and flow of the tide over New Jersey’s estuarine marshes has been the subject of extended and extensive litigation in the courts of New Jersey. See, e. g., Keyport Steamboat Co. v. Farmers Transportation Co., 18 N.J. Eq. 13 (Ch. 1866), aff’d 18 N.J.Eq. 511 (1866); Stevens v. Paterson and Newark R.R. Co., 34 N.J.L. 532, 3 Am.Rep. 269 (1870); New Jersey Zinc & Iron Co. v. Morris Canal & Banking Co., 44 N.J.Eq. 398, 15 A. 227 (Ch.1888), aff’d, 47 N.J.Eq. 598, 22 A. 1076 (1890); Simpson v. Moorhead, 65 N.J.Eq. 623, 56 A. 887 (Ch.1904); Moore v. Ventnor Gardens, Inc., 105 N.J.Eq. 730, 149 A. 536 (Ch.1930) aff’d, 109 N.J.Eq. 132, 156 A. 419 (1931); Ross v. Mayor and Council of Borough of Edgewater, 115 N.J.L. 477, 180 A. 866 (Sup.Ct.), aff’d, 116 N.J.L. 447, 184 A. 810 (1935), cert. denied, 299 U.S. 543, 57 S.Ct. 37, 81 L.Ed. 400 (1936); Harz v. Board of Commerce and Navigation, 126 N.J.Eq. 9, 7 A.2d 803 (Ch.) aff’d 127 N.J.Eq. 341, 12 A.2d 879 (1939). The maps from which Exhibit P-16 was prepared have frequently been challenged. But Stoeco offered no testimony challenging the accuracy of the exhibit or Barker’s interpretation. Thus we cannot say the district court’s finding that the premises in question was a tidal marsh prior to 1927 is clearly erroneous. The expansive definition of the federal government’s navigational servitude may be traced to the enactment in 1958 of The Fish and Wildlife Coordination Act, Pub.L. No. 85-624, 72 Stat. 563 (codified at 16 U.S.C. §§ 661-666), and of The National Environmental Policy Act of 1969, Pub.L. No. 91-190, 83 Stat. 852 (codified at 42 U.S.C. §§ 4331-4347). Prior to these enactments the chief concerns of the Army Corps of Engineers were the prevention of encroachments on the navigational capacity of waters, and the prevention of encroachments on the navigational servitude which the government intended to use for some other purpose, such as flood control, United States v. Rands, 389 U.S. 121, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967) or road building, United States ex rel. Greathouse v. Dern, 289 U.S. 352, 53 S.Ct. 614, 77 L.Ed. 1250 (1933). The Fish and Wildlife Coordination Act requires that any federal agency granting a permit or license' to modify any stream or body of water shall first consult with the United States Fish and Wildlife Service, Department of the Interior and also with the head of the agency exercising administration over the wildlife resources of the particular state, “. . . with a view to the conservation of wildlife resources”. 16 U.S.C. § 662(a). The National Environmental Policy Act of 1969 requires that for every major federal action significantly affecting the human environment the federal agency shall prepare an environmental impact statement. 42 U.S.C. § 4332(c). That requirement is applicable to major federal actions by the Army Corps of Engineers. E. g., Environmental Defense Fund, Inc. v. Froehlke, 477 F.2d 1033 (8th Cir. 1973). Neither The Fish and Wildlife Coordination Act nor The National Environmental Policy Act by their terms apply to State or private activities, although undoubtedly Congressional legislative power under the Commerce Clause would be broad enough to encompass federal regulation of any activities affecting the marine ecology. It is clear that Congress intended that the Army Corps of Engineers and the Secretary of the Army would consult with the Fish and Wildlife Service before issuing a permit for a private dredge and fill operation. See S.Rep.No.1981, 85th Cong. 2d Sess. (1958) (reprinted in 2 1958 U.S. Code Cong. & Ad.News 3446-3450). The federal environmental protection statutes did not, however, by their terms enlarge the jurisdiction of the Army Corps of Engineers under the Rivers and Harbors Appropriation Act of 1899. If there is no such jurisdiction environmental protection is still a matter primarily of state concern. We turn, then, to the nature and extent of the federal navigational servitude. We are not dealing with any claim of federal title to the premises in question. It is not located in the coastal zone, but within the boundaries of the State of New Jersey. It is settled law that riparian titles within those boundaries are derived from the State. See, e. g., Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 11 L.Ed. 565 (1845); Hoboken v. Penn Railroad Co., 124 U.S. 656, 8 S.Ct. 643, 31 L.Ed. 543 (1888); Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894); Bailey v. Driscoll, 19 N.J. 363, 117 A.2d 265 (1955); Transcontinental Gas Pipeline Corp. v. Department of Conservation and Economic Development of New Jersey, 43 N.J. 135, 202 A.2d 849 (1964); Schultz v. Wilson, 44 N.J.Super. 591, 131 A.2d 415 (1957); River Development Corporation v. Lberty Corporation, 51 N.J.Super. 447, 144 A.2d 180 (1958); Island Heights v. Presbyterian Camps, 68 N.J.Super. 291, 172 A.2d 228 (1961). Compare United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947); United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216 (1950); United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221 (1950). Thus neither the relinquishment of title in § 3 of the Submerged Lands Act of 1953, 43 U.S.C. § 1311(b)(1), nor the reservation of a federal navigational servitude in § 6 of that Act, 43 U.S.C. § 1314, bear upon the issues in this case. The latter section reserves from the grant in § 3 the federal government’s “navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs”, but does not purport to enlarge or to define that servitude. Nor are we dealing with the extent to which the United States must, by virtue of the fifth amendment, compensate the fee owner of premises over which, or adjoining which, it has a navigational servitude, when it takes the premises for federal purposes. Existence of a dominant federal navigational servitude has long been assumed. See, e. g., Gilman v. Philadelphia, 70 U.S. (3 Wall.) 724, 18 L.Ed. 96 (1865); South Carolina v. Georgia, 93 U.S. 4, 23 L.Ed. 782 (1876). It is clear that for purposes of the fifth amendment the fee owner’s interest is valued subject to the navigational servitude, regardless of the purpose of the federal taking. See, e. g., United States v. Rands, 389 U.S. 121, 122, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967). Cf. United States v. 50 Foot Right of Way in Bayonne, New Jersey, 337 F.2d 956 (3d Cir. 1964). The government points to the condemnation cases as suggesting a broad reading of the extent of the navigational servitude. But those cases cannot be read as defining the extent of the servitude. None of the condemnation cases to which we have been referred deal with whether, after the government has permitted improvements within the tidal waters of the United States, either as a result of a permit or by inaction, it can cause the removal of those improvements without paying compensation. Since it is established that the premises in question has been improved solid upland at least since 1927, we must determine (1) whether estuarine tidal marshland was subject to the federal navigational servitude prior to 1927, if so, (2) whether the servitude survived the 1927 improvements to which the government made no objection, and finally (3) whether Congress intended that § 10 was intended to have continuing application to improved land formerly within the navigable waters of the United States. The third question is of enormous- significance to property owners in estuarine areas of New Jersey and other coastal states in the northeast where, perhaps unfortunately, since at least the middle of the nineteenth century there has been extensive development of estuarine marshland. If the permit provisions of that section apply to the premises in question, improved as solid uplands since 1927, they apply as well to thousands of acres of streets, homesites, factory sites and railyards. We can put aside the question whether under the Commerce Clause, Congress could extend the regulatory jurisdiction of the Army Corps of Engineers to excavations on solid uplands. In the statute on which the government relies Congress did not do so. It extended that jurisdiction only to the navigable waters of the United States. What those waters comprise has been the subject matter of an extensive jurisprudence, not all of it completely reconcilable. A good starting point is Justice Bradley’s opinion in Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629 (1888) holding that in the absence of a congressional enactment a state could authorize the obstruction of a navigable stream. He wrote: “The power of Congress to pass laws for the regulation of the navigation of public rivers, and to prevent any and all obstructions therein, is not questioned. But until it does pass some such law, there is no common law of the United States which prohibits obstructions and nuisances in navigable rivers, unless it be the maritime law, administered by the courts of admiralty and maritime jurisdiction. No precedent, however, exists for the enforcement of any such law; and if such law could be enforced, (a point which we do not undertake to decide,) it would not avail to sustain the bill in equity filed in the original case. There must be a direct statute of the United States in order to bring within the scope of its laws, as administered by the courts of law and equity, obstructions and nuisances in navigable streams within the states.” In reaction to Willamette Iron Bridge Co. v. Hatch, supra, Congress passed the Act of Sept. 19, 1890, ch. 907, § 10, 26 Stat. 454, prohibiting “[T]he creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction . ”. That statute was superseded by the 1899 Act of which § 10 is a part, and which contains the same “navigable capacity” language. Both statutes were enacted pursuant to the Commerce Clause, but neither reached the full extent of Congressional power over commerce. That power was exercised in 1890 to protect “waters, in respect of which the United States has jurisdiction” and in 1899 to protect “waters of the United States.” Congress obviously-adopted the judicial definition of those waters as of 1890. That definition was the admiralty definition. The classic statement was in Justice Field’s opinion in The Daniel Ball, 77 U.S. (10 Wall.) 557, 19 L.Ed. 999 (1870). Justice Field wrote: “The doctrine of the common law as to the navigability of waters has no application in this country. Hére the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide water and navigable water there' signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. A different test must, therefore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.” [footnote omitted] Stoeco urges that this definition excludes the premises in question, since although the government established that the marshland was subject to the ebb and flow of the tide in 1927, no showing was made that there ever was actual or even potential use for maritime commerce. Superficially the Daniel Ball definition would not seem to apply to a tidal marsh. But a more thorough analysis is required, since Congress adopted the admiralty definition, and that jurisdiction existed from 1789 forward. When Section 9 of the Judiciary Act conferred admiralty jurisdiction upon the district courts, what was referred to was the pre-1789 admiralty jurisdiction. A commentator suggests that colonial commissions and patents granting admiralty jurisdiction contemplated all “. . . places overflowed whatsoever, within the ebbing and flowing of the sea, or high water mark, from all first bridges toward the sea.” 4 Benedict on Admiralty 435 (6th ed. 1940). That commentator suggests that this definition of admiralty jurisdiction reflected the successful effort of the law courts in England to confine admiralty jurisdiction. Justice Story in The Steamboat Thomas Jefferson, 23 U.S. (10 Wheat.) 428, 6 L.Ed. 358 (1825) accepted the English definition, holding that navigation on the Missouri River was not within the admiralty jurisdiction because that river was not tidal. See also The Planter, 32 U.S. (7 Pet.) 324, 8 L.Ed. 700 (1833); The Steamboat Orleans, 36 U.S. (11 Pet.) 175, 9 L.Ed. 677 (1837). But in The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 13 L.Ed. 1058 (1851) Justice Taney made a new start in a case involving a ship collision on the non-tidal Lake Ontario. Congress had in 1845 passed a statute, 5 Stat. 726, extending the district court’s admiralty jurisdiction to the Great Lakes and navigable waters connecting the same. It was suggested that the jurisdiction could be sustained under the Commerce Clause, but this would have presented serious constitutional problems both under the seventh amendment and under article III, section 2. Instead relying on the jurisdiction conferred in § 9 of the 1789 Judiciary Act, Taney redefined navigable waters, for purposes of admiralty jurisdiction, as dependent upon the actual navigable character of the water rather than the ebb and flow of the tide. The well known definition in The Daniel Ball, supra, is derived from The Genesee Chief. Stoeco would have us read The Daniel Ball and The Genesee Chief as both an expansion and a contraction of admiralty jurisdiction; an expansion to non-tidal waters and a contraction, in tidal waters, to areas of actual or reasonably potential navigability. There is no reason to believe that anything other than expansion was intended, however. Subsequent decisions of the Supreme Court do not suggest any contraction. None of those eases, we must concede, deal precisely with the tidal marsh issue. Stoeco urges that Leovy v. United States, 177 U.S. 621, 20 S.Ct. 797, 44 L.Ed. 914 (1900) is authority for the proposition that The Genesee Chief represents a contraction as well as an expansion. That case, involving the erection of a dam at Red Pass, on the Mississippi River in Louisiana, does stand for the proposition that a showing of actual capacity for navigation must be made before the 1899 Act applies. But it deals, so far as the opinion discloses, with a dam at a non-tidal location. In non-tidal waters the test is actual or reasonably potential navigability. In tidal waters the test, in our view, remains what it was before 1851, the ebb and flow of the tide. And since it is clear that the 1899 Act and its 1890 predecessor were intended to adopt a definition of navigable waters at least as wide as the admiralty jurisdiction (though Congress could under the Commerce Clause have gone further) we hold that § 10 applies to tidal marshes. That holding, unfortunately, cannot end our inquiry. As the regulations quoted above make clear, under the administrative agency’s prior interpretations of § 10 no permit was required in 1927 when the premises in question were filled to a level substantially above mean high tide. Stoeco acquired the premises in 1951 in a filled state, and with no notice, so far as the government has shown, that the United States claimed a navigational servitude over the entire area. The district court ruled: “The fact that this area has been illegally filled does not extinguish its character, in legal contemplation, as part of the navigable waters of the United States, for an area once found to be part of those waters remains so.” United States v. Stoeco Homes. Inc., supra, at 676. At oral argument the government took the position that even the occupants of homes on the fully developed part of the .'Stoeco tract remained in occupation only so long as the United States as a matter of grace declined to assert its navigational servitude. This approach is an oversimplification, for the government did not establish that the 1927 filling operation was illegal. Section 10 by its plain language contemplates congressional consent to some encroachments on the navigational servitude, and delegates to the Army Corps of Engineers and the Secretary of the Army authority to grant such consent on its behalf. If the administrative agency gives an express consent by permit in a specific instance, with no reservation of the right to compel removal, surely that consent must be considered to be a surrender of the federal servitude over the fee in question. Section 10 is silent as to the method of giving consent, but textually a blanket consent with respect to a class of properties does not appear to be prohibited. The longstanding administrative practice, at least prior to 1970, was to require consents for encroachments only beyond pierhead or harbor lines. On the record before us we must assume that this was the administrative practice when in 1927 the premises in question became fast rather than tidal land. Thus there is no basis for the district court’s conclusion that in 1927 the land was illegally filled. When Stoeco purchased in 1951 what then had been fast land for twenty four years the navigational servitude had long since been surrendered. We reach this conclusion as a matter of statutory interpretation of § 10, mindful that though the Congressional power over the regulation of commerce is far reaching that power is limited by the due process and taking clauses of the fifth amendment. Certainly a construction which would, after government inactivity from 1890 to 1970, cast doubt upon the property status of thousands of acres of former tidal marshes would present problems under that amendment. Cf. United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 674, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). We conclude, therefore, that the broad injunction against any construction whatsoever in the premises in question cannot be sustained on the theory that a § 10 permit is required for such construction. That holding is limited, of course, to tidal marshlands which had become fast land prior to the change in policy of the Army Corps of Engineers. Any work undertaken in estuarine areas which were subject to the ebb and flow of the tide when the Army Corps of Engineers published its new regulations asserting the navigational servitude to its full extent, are, under the terms of these regulations, now subject to the § 10 permit requirement. 33 C.F.R. § 209.-150(b). The validity of these regulations is not before us. II. The § 13 Violations Since the broad injunction cannot be sustained on the government’s § 10 theory, the injunctive remedy for the enforcement of that section contained in § 12, 33 U.S.C. § 406, is inapplicable. But South Harbor, once it was created, became by operation of law a part of the navigable waters of the United States. Thus South Harbor (and its tributary lagoons) are within the compass of § 13. Deposit of dredge fines in those waters is prohibited by § 13. United States v. Pennsylvania Industrial Chemical Corp., supra; United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966). In a suit for injunctive relief to abate discharges under § 13 the plaintiff must show irreparable injury and the scope of injunctive relief must be patterned to the degree of harm. New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L.Ed. 937 (1921); Missouri v. Illinois, 200 U.S. 496, 26 S.Ct. 268, 50 L.Ed. 572 (1906). The United States can, of course, sue to abate a public nuisance under federal common law. Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). But in such a suit traditional limitations on equitable remedies are applicable. No balancing of interest or need to show irreparable injury is required when an injunction is sought under § 12 to prevent erection or seek removal of an unlawful structure; a remedy we have found to be inapplicable. The district court found that there was irreparable harm to the commercial, navigational and recreational use of the waters of South Harbor. There is no evidence in the record of any commercial use other than that of Stoeco, but the finding of irreparable harm to navigational and recreational use is not clearly erroneous, and injunctive relief against the continuing deposit of dredge fines in the waters of South Harbor and its tributary lagoons was proper. But the injunction went far beyond that, prohibiting any work on Stoeco’s premises whether or not a discharge prohibited by § 13 would occur. It seems unlikely that any hydraulic dredging operation can go forward without some discharge of fines from the run-off of water. Section 13 does not absolutely prohibit hydraulic dredging. If some discharge in the navigable waters of the United States takes place, the Secretary of the Army may permit such deposits in limits to be defined and under conditions prescribed by him. The permit program formerly administered under § 13 is now administered under § 402 of the Federal Water Pollution Control Act Amendments of 1972, Pub.L. No. 92-500, 86 Stat. 816 (codified at 33 U.S.C. § 1251 et seq.), and pursuant to Executive Order No. 11574, 35 Fed.Reg. 19627 (1970). The government did not in this ease rely on the Federal Water Pollution Control Act, but did rely on § 13 of the 1899 Act. No hydraulic dredging should be permitted until such time as Stoeco obtains an appropriate discharge permit. The injunction appealed from will be vacated and the case remanded to the district court for the entry of a modified injunction in accordance with this opinion. The injunction to the extent that it prohibits hydraulic dredging, shall remain in effect until the district court acts.. . Stoeco also obtained from the State of New Jersey a conveyance of the State’s interest in land flowed by tidewater. Exhibit P-26. . “Deposit of refuse in navigable waters generally It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms, or floods, or otherwise, whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States officers supervising such improvement or public work: And provided further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful.” . “Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filing in The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.” . “WAR DEPARTMENT UNITED STATES ENGINEER OFFICE 14th Floor, Penn Mutual Life Insurance Bldg. Independence Square Philadelphia, Pa. 19 January 1949 Stoeeo Homes, Inc. 800 Ocean Avenue Ocean City, New Jersey Gentlemen: Receipt is acknowledged of your letter of 15 January 1949, in reply to letter from this office dated 10 January 1949, inclosing a sketch of work being undertaken by your company along Great Egg Harbor north of Ninth Street, Ocean City, New Jersey. Inasmuch as no construction is contemplated channelward from the existing bulkhead at the locality and the dredging for a boat basin is shoreward from the line of the bulkhead, no Department of the Army permit for the work will be required. FOR THE DISTRICT ENGINEER: Very truly yours, ROBERT C. MARSHALL Major, Corps of Engineers Assistant District Engineer Works” cc: Resident Engine Atlantic City, N.,. . “Establishment of harbor lines; conditions to grants for extension of piers, etc. Where it is made manifest to the Secretary of the Army that the establishment of harbor lines is essential to the preservation and protection of harbors he may, and is hereby authorized to cause such lines to be established, beyond which no piers, wharves, bulkheads, or other works shall be extended or deposits made, except under such regulations as may be prescribed from time to time by him: Provided, That whenever the Secretary of the Army grants to any person or persons permission to extend piers, wharves, bulkheads, or other works, or to make deposits in any tidal harbor or river of the United States beyond any harbor lines established under authority of the United States, he shall cause to be ascertained the amount of tidewater displaced by any such structure or by any such deposits, and he shall, if he deem it necessary, require the parties to whom the permission is given to make compensation for such displacement either by excavating in some part of the harbor, including tidewater channels between high and low water mark, to such an extent as to create a basin for as much tidewater as may be displaced by such structure or by such deposits, or in any other mode that may be satisfactory to him.” . Compare the Fish and Wildlife Act of 1956, ch. 1036, 70 Stat. 1119 (codified at 16 U.S. C. • § 742i) in which Congress deferred, to some extent, to State regulation over submerged lands. . Bradley distinguished The Wheeling Bridge Case, 54 U.S. (13 How.) 518, 14 L.Ed. 249 (1851) as resting upon the interstate compact pursuant to which Kentucky was admitted to the Union, with guaranteed free navigation of the Ohio River. Probably that interpretation of Wheeling Bridge which antedated the decision in The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 13 L.Ed. 1058 (1851), is correct, since until the Genesee Chief the Ohio at Wheeling would not have been considered to be in the navigable waters of the United States. See page 609 infra. . The government does not rely on § 10 of the Federal Water Pollution Control Act. . Stoeco does not challenge that finding. (Appellant’s brief p. 27).

Puerto Rico v. SS Zoe Colocotroni

LEVIN H. CAMPBELL, Circuit Judge. In the early morning hours of March 18, 1973, the SS ZOE COLOCOTRONI, a tramp oil tanker, ran aground on a reef three and a half miles off the south coast of Puerto Rico. To refloat the vessel, the captain ordered the dumping of more than 5,000 tons of crude oil into the surrounding waters. An oil slick four miles long, and a tenth of a mile wide, floated towards the coast and came ashore at an isolated peninsula on the southwestern tip of the island-a place called Bahia Sucia. The present appeal concerns an action in admiralty brought by the Commonwealth of Puerto Rico and the local Environmental Quality Board (EQB) to recover damages for harm done to the coastal environment by the spilled oil. Defendants have raised numerous objections to the district court’s judgment awarding plaintiffs $6,164,192.09 in damages for cleanup costs and environmental harm. The primary objections are that the district court: (1) abused its discretion in striking defendants’ pleadings on the issue of liability as a sanction for defendants’ conduct during the discovery process; (2) erred in considering depositions of the ship’s master and crew on the issue of liability and in making findings as to liability after that issue had been removed from the case; (3) lacked personal jurisdiction over the underwriters West of England-Luxembourg and West of England — London; (4) erred in finding plaintiffs had standing to sue for environmental damages; (5) applied the wrong standard in measuring damages; (6) made certain erroneous findings of fact on damages; and (7) erred in denying defendants’ Rule 60 motion for relief from judgment. The facts and circumstances of the oil spill and its aftermath are set forth in detail in the district court’s opinion, Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 456 F.Supp. 1327 (D.P.R. 1978). After a brief review of these facts and of the trial testimony, we will address defendants’ contentions in turn. I. The following facts found by the district court are not in serious dispute. On March 15, 1973, the ZOE COLOCOTRONI departed La Salina, Venezuela, carrying 187,670 barrels of crude oil en route to Guayanilla, Puerto Rico. For the first two days of the voyage, the vessel proceeded by celestial navigation. The last star fix, however, was taken at 1859 hours on March 17. For the next eight hours, the ship proceeded by dead reckoning. As the vessel approached the south coast of Puerto Rico, it was, the district court stated, “hopelessly lost.” At 0300 hours on March 18, the ship grounded on a reef. Efforts to free the tanker by alternately running the engines in forward and reverse were unsuccessful. After ten minutes, the captain ordered the crew to lighten ship by emptying the cargo of crude oil into the sea. By the time the vessel refloated, some 1.5 million gallons of crude oil-5,170.1 tons-had poured into the surrounding waters. The oil floated westward from the site of the spill throughout the daylight hours of March 18, and began coming ashore after nightfall. Bahia Sucia is a crescent-shaped bay facing southeastward from the Cabo Rojo peninsula, which forms the southwest tip of Puerto Rico. The oil entered Bahia Sucia, washed onto the beaches, and penetrated the mangrove forests that line the western edge of the bay. The oil was particularly thick in three areas: around the rocky tip of the peninsula, in a section of mangroves known as West Mangrove between a point called “Hermit One” and an inlet called “Dogman’s Cove,” and on the open beach area stretching along the northern edge of the bay. In addition, as the tide ebbed and flowed, oil entered the tidal flats behind the mangrove fringe, coating the roots of mangroves growing deeper in the forest and soaking into the sediments. A massive cleanup operation, coordinated by the United States Coast Guard and several Commonwealth agencies, commenced on the morning of March 19. Cleanup crews, hampered to some extent by variable winds that blew oil back and forth across the bay, used booms to attempt to contain oil floating on the surface. Much of this oil was pumped out, either directly from the water or from large holes dug in the beach into which oil was channeled by the cleanup crews. By March 29, approximately 755,000 gallons of oil, or about half the amount spilled, had been recovered. On several occasions during the cleanup, oil was driven by winds and currents into the eastern edge of the bay in an area known as East Mangrove. This thin layer of oil was difficult to remove, but, according to the district court’s findings, it caused little or no harm to the East Mangrove forest. By April, cleanup activities had switched from large-scale removal of oil to small-scale activities such as manual beach cleanup and bailing of oil from tidal pockets with buckets and small boats. Large amounts of contaminated sands-totalling about 4,500 cubic yards-were removed from the beach area by bulldozer and by hand. At the end of April, the major remaining cleanup efforts were halted, and all further efforts were discontinued after September 24. Despite the cleanup, oil continued to be present in Bahia Sucia, especially in the stand of mangroves on the west side of the bay. One of plaintiffs’ expert witnesses, Dr. Ariel Lugo Garces, a wetlands specialist, testified that the ecological functions of a mangrove forest such as that at Bahia Sucia included: (1) protecting the shoreline from erosion, storms, tides, and high winds; (2) providing a habitat for wildlife, especially birds; (3) providing a protected breeding ground for fish and shellfish; and (4) acting as a food source for aquatic creatures of all kinds. Dr. Roger D. Anderson, a marine biologist who testified for defendants, agreed with Dr. Lugo that tropical mangroves are an important link in the food chain that supports fisheries and other marine resources. The district court described the Bahia Sucia mangroves as follows: “The mangrove that borders on the ocean fringe throughout Bahia Sucia is a species referred to as red mangrove (Rhizophora mangle). This mangrove has both main and prop roots, in which are located lenticels or pores for gas exchange. These lenticels facilitate root respiration. Various epibenthic species such as tree oysters, snails, crabs, sponges and molluscs dwelled in these root systems. In the waters surrounding these roots, communities of fish, shrimp and similar floating or swimming organisms throve. The bottom around the roots was inhabited by various benthic infauna. The bottom near the red mangrove was covered with both turtle grass . and manatee grass Further inland from the fringe, as the interstitial salinity rises, the red mangrove is supplanted by the black mangrove (Avecennia nítida). This mangrove inhabits a zone systematically flooded by the tide, and rather than prop roots, it has fingerlike breathing tubes (called neumatafors) which rise from the ground to above high water level. This area provided a habitat principally for crustaceans such as crabs and barnacles, and algae grazing snails, bees and reptiles. There were also benthic infaunal communities similar in nature to those in the bottom surrounding the red mangrove fringe.” 456 F.Supp. at 1338 (footnotes omitted). The district court noted that the configuration of Bahia Sucia, together with the prevailing winds and currents, made the bay a natural trap for floating debris, including small quantities of petroleum and tar. Nevertheless, the court found that, at the time of the ZOE COLOCOTRONI oil spill, “Bahia Sucia was a healthy, functioning estuarial ecosystem, typical of those found in the Southern coast of Puerto Rico and similar tropical environments.” 456 F.Supp. at 1339. A. The Commonwealth of Puerto Rico and the EQB instituted the present action on March 19, 1973, invoking the admiralty jurisdiction of the district court. A six-week trial, addressed solely to damages, commenced on November 7, 1977. Plaintiffs first introduced testimony by expert witnesses on the impact of the oil spill on Bahia Sucia, the toxic effects of the oil, and the extent to which oil was still present four years after the spill. Other experts then presented proposals for restoring the area and testified to the costs that would be involved. Rafael Cruz Perez, an engineer, presented a proposal to remove and replace a total of 164,600 square meters (approximately 40 acres) of oil-contaminated sediments in the West Mangrove and East Mangrove areas to a depth of one meter. While the details of the Cruz Perez plan were somewhat sketchy, the geographic areas to be affected by the plan apparently consisted of the following. Of the 40 acres of contaminated sediments to be removed, about 15 acres were on the west side of the bay in the vicinity of West Mangrove and about 25 acres were on the east side in the vicinity of East Mangrove. Of the 15 acres on the west side, about 3.5 acres contained mangroves, approximately half of which were alive notwithstanding the polluted sediments. Of the 25 acres to be removed on the east side, about 16.5 acres contained mangroves. Cruz Perez thus estimated his plan for removal of 40 acres of contaminated sediments would necessarily entail the clearing of some 20 acres of existing mangroves. Furthermore, Cruz Perez testified, three additional acres of mangroves in uncontaminated areas would have to be cleared to provide access for heavy machinery. An engineering report submitted by Gabriel Fuentes, a contractor, estimated the cost of removing the sediments and mangroves to be $7,176,363.71. Charles Pennock, a San Juan nurseryman, submitted an estimate of $559,500 for the replanting of 23 acres of mangroves from container-grown plants (approximately 5,500 trees per acre) and a five-year maintenance plan. Dr. Roger J. Zimmerman, a marine biologist from the University of Puerto Rico, testified concerning a study he conducted in late 1976 and early 1977 comparing the number of living organisms found at Bahia Sucia with the number found in a comparable control area. Dr. Zimmerman’s study established no significant differences in number or type of organisms-either plants or animals-in the seagrass beds or on the prop roots of the mangroves. The study did, however, show a substantial disparity in the number of organisms living on or under the sediments. In particular, Dr. Zimmerman stated that the number of molluscs (e. g., clams, snails) in the Bahia Sucia area was very small in comparison to the control area. On the other hand, samples taken in Bahia Sucia found a far larger number of polychaete worms, especially a genus known as capitella which often proliferates in areas of acute environmental distress. Dr. Zimmerman also testified that, subsequent to this first survey, a second study was undertaken at the behest of the Environmental Quality Board. This study, again relying on core samples taken in Bahia Sucia and at a control site, concentrated on the sediments, where the first survey had found the greatest impact from the oil. Dr. Zimmerman stated that the surveyors took their samples primarily from the vicinity of a small lagoon in the West Mangrove area where previous studies and visual observation indicated the oil was heavily concentrated. This study revealed a marked difference between the two sites in the numbers of infaunal and epibenthic creatures, according to Dr. Zimmerman. Dr. Ariel Lugo Garces, the wetlands expert, testified to studies he had made indicating the presence of oil in the mangrove sediments correlated with dead or dying mangrove trees. The mangroves would not grow back, Dr. Lugo said, as long as the oil remained in the sediments. Dr. Lugo also presented a compilation, prepared by him, of the data gathered by the other Bahia Sucia surveyors, summarizing the extent of damage to twelve different'components of the Bahia Sucia ecosystem. Dr. Lugo stated that he considered his figures conservative, since little data was available on many other environmental components. Finally, Dr. Philip E. Sorenson, an economist specializing in natural resources, discussed the economic theory that shippers of oil should be required to bear such external social costs as oil spill damages in order to prevent underpricing of their product. “If the producers and consumers of oil are able to conduct their affairs in such a way as to transfer to society a large part of the real cost of producing and consuming their product,” Dr. Sorenson said, “we’ll be in an inefficient economic situation: one in which the market price of the commodity will be less than the full social cost of producing it.” Dr. Sorenson also presented a summary of plaintiff’s claims for damages, including inter alia the Commonwealth’s uncontested claim for cleanup expenses of $78,-108.89, the $7.5 million for sediment removal and mangrove replanting, and Dr. Sorenson’s own estimate of $5,526,583 as the replacement value of the invertebrate organisms killed by the oil spill. Dr. Sorenson testified he arrived at the latter figure by way of the following calculations. Dr. Lugo’s report had compiled the results of earlier studies together with the second Zimmerman survey to provide a table of environmental harms. Concentrating only on the figures from the Zimmerman study, Dr. Sorenson extrapolated the differences in number of organisms found in the ten-centimeter core samples over a square meter area to determine the net difference in creatures per square meter. Since six samples were .taken at each of the four “stations” in Bahia Sucia and in the control area, he determined this involved multiplying the results of each set of six samples by 21.22. Results from one of the four stations, where more animals were found at Bahia Sucia than at the control area, were not included. The net difference was calculated to be 1,138 creatures per square meter. This figure in turn yielded the sum of 4,605,486 creatures per acre, and a total of 92,109,720 creatures of the 20 acres of mangroves allegedly impacted by oil. Dr. Sorenson testified that he took the 20-acre figure from “the survey and the map created by Mr. Cruz Perez” and that the 20 acres included a substantial area in East Mangrove. To arrive- at an estimate of damages, Dr. Sorenson testified he consulted catalogs from biological supply houses. From these catalogs he determined that “[m]any of these species sell at prices ranging from $1 to $4.50” and “that no animal on the list sold for less than 10 cents.” Dr. Sorenson assigned an average replacement value to each creature, regardless of species, of six cents. Multiplying 92,109,720 times .06 resulted in an estimate of $5,526,583 as the replacement value of the organisms “missing” from the Bahia Sucia sediments. Dr. Sorenson also estimated the cost of a ten-year scientific monitoring program at $1,393,200. His total estimate of the damages was thus $14,733,755.60, consisting of $7,176,363.71 for mangrove and sediment removal, $559,500 for mangrove replanting, $5,526.583 for the replacement value of organisms, $1,393,200 for monitoring, and $78,108.89 for cleanup costs. B. Plaintiffs’ witnesses were thoroughly cross-examined by defendants’ counsel. In addition, defendants presented considerable expert testimony of their own. The primary thrust of this testimony was that the oil originally present in Bahia Sucia had “weathered” through the action of wind, waves, sunlight and the elements and was no longer having major toxic effects on the environment. Defendants’ experts also testified that some of the damaged mangroves were victims of pre-existing high salinity in West Mangrove rather than oil pollution. Further testimony indicated that, in the opinion of defendants’ experts, there were substantial signs of natural regeneration among the mangroves. Dr. Edward S. Gilfillan testified, for example, that he expected the area to be restored by natural processes within ten to fifteen years, if not less. He estimated the size of the area of “continuing damage” in West Mangrove at two and a half to three acres. Defendants also offered alternative restoration or reforestation programs of their own that were less extensive or less costly than plaintiffs’ proposals. Dr. Howard Teas, a biologist, testified that, in his opinion, it would be possible, though not necessarily desirable, to remove oil from the sediments without destroying existing vegetation by using “an airlift or vacuum such as divers use in unearthing treasure ships.” A preferable alternative, Dr. Teas said, would be to offset damage to the oil-impacted mangroves by replanting trees at a nearby location where the mangrove forest had existed several years before. This proposal would not carry with it the same risk of totally destroying the environment in the contaminated areas in order to save it, Dr. Teas said. He suggested that construction of a canal system to provide sufficient “flushing” action would permit reforestation of the area west of Bahia Sucia and north of the Cabo Rojo lighthouse where excess salinity had apparently killed the mangroves. Dr. Teas testified that the cost of replanting 15 acres of mangroves through methods with which he was familiar would be approximately $75,000 ($5,000 per acre), and that the cost of a ten-year monitoring program would be about $200,-000. Dr. Roger D. Anderson, a marine biologist testifying for defendants, attacked Dr. Sorenson’s theory of replacement value as the measure of damages for small, commercially valueless invertebrate animals. Dr. Anderson offered as an alternative his own methodology, based on studies conducted in Georgia. Citing work done by some of plaintiffs’ experts as well as other scientists, Dr. Anderson estimated the value of an acre of tropical mangrove swamp to be $50,000, based on a complex analysis of the potential significance of such land to food supply, energy supply, fisheries, wood products, aesthetics, recreation and similar factors. From his analysis of other evidence produced at trial, Dr. Anderson testified he considered about three acres of the West Mangrove area to be a total loss, thus producing a damage figure of $150,000. He stated, however, that his estimate of $50,-000 was a “yardstick” which could be applied to any number of acres of mangroves that plaintiffs could show had been substantially damaged. Dr. Anderson pointed out that plaintiffs' expert Dr. Lugo had written a paper, on which Dr. Anderson partly relied, putting a more conservative valuation of $35,000 to $40,000 per acre on the mangroves of Bahia Sucia. Dr. Anderson also offered to testify in behalf of defendants’ proposal that, as an alternative to massive replanting in the West Mangrove area, reforestation of the Cabo Rojo peninsula could be attempted. He stated that he was familiar with this technique of alternate-site restoration, and that it had been used in several states as a condition for permitting activities that would result in destruction of certain areas of marshland. Dr. Anderson’s testimony on this point was excluded on grounds of irrelevancy. “I am involved here, solely, with establishing a dollar amount of damages,” the court said. “[Wjhether as an alternate remedy in the settlement, the restoration of other mangroves, or of these mangroves . could be proposed is outside the scope of this case; unless I am shown something to the contrary.” Finally, defendants presented testimony by David R. Stith, a marine contractor with experience in oil spill cleanup operations, including the Bahia Sucia cleanup. Stith testified he had prepared an estimate of the cost of removing the oil-contaminated sediments from 2.6 to 2.9 acres of the West Mangrove area using a suction device mounted on a floating barge. His estimate for this work totaled $396,859. Stith also offered to testify he had estimated the cost of constructing a channel system as proposed by Dr. Teas for replanting at the Cabo Rojo lighthouse. This estimate was $152,310. As with Dr. Anderson’s, the district court excluded this testimony as irrelevant since it did not concern the damaged area. The total of defendants’ proposed remedial measures was just under $1 million. C. The district court made the following findings on the issue of damages: “1. Plaintiffs’ proven claim of damage to marine organisms covers an approximate area of about 20 acres in and around the West Mangrove. The surveys conducted by Plaintiffs reliably establish that there was a decline of approximately 4,605,486 organisms per acre as a direct result of the oil spill. This means that 92,109,720 marine animals were killed by the COLOCOTRONI oil spill. The uncontradicted evidence establishes that there is a ready market with reference to biological supply laboratories, thus allowing a reliable calculation of the cost of replacing these organisms.42 The lowest possi42 As explained previously, the affected flora and fauna were part of a trust held for the people by the Commonwealth of Puerto Rico. See, Lacoste v. Department of Conservation, 263 U.S. 545, 549, 44 S.Ct. 186, 68 L.Ed. 437 (1924); Geer v. Connecticut, [161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793], supra. Perforce, the Commonwealth must have the ability to have the corpus of said public trust reimbursed for the diminution attributable to the wrongdoers. State Dept. of Environmental Protection v. Jersey Central Power & Light Co., supra, [124 N.J.Super. 97, 308 A.2d 671], at 673-674. We recognize that no market value, in the sense of loss of market profits, can be ascribed to the biological components of the Bahia Sucia ecosystem. The Court will thus refer to market cost as the most reliable evidence of the quantum of damages actually sustained, i. e., what is required to make the Plaintiffs whole. This will compromise the cost of restoring the affected areas to the condition in which they were before the occurrences. See Feather River Lumber Co. v. United States, 30 F.2d 642, 644 (C.A. 9, 1929).” ble replacement cost figure is $.06 per animal, with many species selling from $1.00 to $4.50 per individual. Accepting the lowest replacement cost, and attaching damages only to the lost marine animals in the West Mangrove area, we find the damages caused by Defendants to amount to $5,526,583.20. 2. The evidence is overwhelming to the effect that the sediments in and around the West Mangrove continue to be impregnated with oil. The solutions proposed by Plaintiffs to this problem are unacceptable in that they would bring about the total destruction of this environment without any real guarantee of ultimate success. Furthermore, there is substantial scientific evidence to the effect that much of the undesirable effects of the oil in the sediments will be corrected in time by the weathering processes of nature. The most affected spots in the West Mangrove cover an area of approximately 23 acres. It is the Court’s opinion that these areas can best be reestablished by the intensive planting of mangrove and restoration of this area to its condition before the oil spill. The evidence shows that the planting of mangrove runs at about $16,500 per acre, thus bringing the cost of replanting 23 acres to $379,500. The evidence further demonstrates that the planting will require a five year monitoring and fertilizing program which will cost $36,000 per year or $180,000 for the five years. The total damages thus suffered by Plaintiffs by reason of the pollution of the mangrove in the West Mangrove amount to $559,-500. 3. Plaintiffs incurred in cleanup costs in the amount of $78,108.89 which were not reimbursed from any source, and they are entitled to recover said damages from Defendants. 456 F.Supp. 1327, 1344-45 & n.42 (D.P.R. 1978). The judgment of the district court was entered August 22,1978. During the pend-ency of their appeal from this judgment, defendants filed a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b) and for correction of the record pursuant to Fed.R.Civ.P. 60(a). These motions were denied in the district court by order dated August 10, 1979. Defendants’ appeal from this order has been consolidated with the pending appeal of the original judgment. II. Defendants first contend the district court abused its discretion by striking their pleadings on the issue of liability and their petition for exoneration from and limitation of liability. Defendants argue that this sanction — which amounted to a default judgment on liability and left open only the question of damages — was an unreasonably harsh penalty for any pretrial misconduct they may have engaged in. The district court acted pursuant to Fed. R.Civ.P. 37(b), which provides that where a party has failed to obey a discovery order, the court “may make such orders in regard to the failure as are just, and among others the following: “(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; . ” (Emphasis added.) The Supreme Court has stated that the appropriate standard of review for orders of this nature “is not whether this Court, or whether the Court of Appeals, would as an original matter have dismissed the action; it is whether the District Court abused its discretion in so doing.” National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976) (per curiam); see also Luis C. Forteza e Hijos, Inc. v. Mills, 534 F.2d 415, 419 (1st Cir.1976). The question is whether the district court’s findings “are fully supported by the record.” 427 U.S. at 642, 96 S.Ct. at 2780. In the present case, the district court found that defendants had exhibited “bad faith and a callous disregard of their responsibilities in this litigation.” Defendants’ conduct, which the district court characterized as “an affront to this Court’s dignity,” was found to have severely prejudiced plaintiffs’ preparation of their case as well as the court’s attempts to ensure that the trial proceeded as scheduled. These conclusions were based on the following facts, which appear in the record. On June 7,1977, the magistrate convened a status conference at which it was agreed by all parties that discovery in this long-pending case would be completed by August 1 in contemplation of a September 7 pretrial conference and a November 7 trial date. Depositions of the defendant corporations were scheduled to be taken in Puerto Rico on July 5, 6 and 7. A further status conference was slated for August 17. The depositions were duly noticed on June 13. On July 5, 1977, without prior notice, defendants’ corporate officials failed to appear for the scheduled deposition sessions. At plaintiffs’ request, the magistrate convened an in-chambers conference the same day to consider what response to make. At that meeting, counsel for defendants stated that, contrary to the earlier agreement, his clients were only willing to be deposed in England in August. The court ordered defendants’ counsel to ascertain by July 11 whether his clients would be amenable to appearing in Puerto Rico for depositions during the week of July 26. A second magistrate’s hearing was set for July 11, at which time counsel for plaintiffs, if they so desired, were to move for sanctions and attorneys’ fees. On July 11, 1977, the court was informed that the parties had agreed to reschedule the aborted depositions for August 3, 4 and 5, 1977, and that they would be conducted in Puerto Rico. The magistrate’s hearing was cancelled and two days later the district court extended the discovery deadline to August 31, indicating that no further alterations in the pretrial schedule would be allowed. At the request of the United States, the depositions scheduled for August 3, 4 and 5 were eventually moved, with the consent of all parties, to August 17, 18 and 19. Appropriate notices were served August 10, and the court gave formal approval to the change on August 15. On August 16, counsel for defendants, A. Santiago Villalonga, phoned counsel for the Commonwealth of Puerto Rico to inform him that defendants’ witnesses did not intend to appear the next day. The witnesses’ appearances would be superfluous, he said, because defendants intended to admit liability. This concession was repeated to the magistrate on the 17th of August by Francisco Bruno, who was substituting for Santiago as defendants’ counsel at the status conference previously slated for that day. Like Santiago, Bruno asserted that the admission of liability obviated the need for taking further depositions. At this time, counsel for the United States raised, among others, the question whether defendants’ admission of liability extended to a waiver of defendants’ petition to limit liability to the value of the vessel and cargo. When defendants’ substitute counsel was unable to provide a clear answer, the magistrate ordered defendants to file a written admission of liability within fifteen days. The magistrate also agreed to reschedule the pre-trial conference from September 7 to October 25 and confirmed, that the trial-now thought to be limited to the damages issue-would still commence on November 7. Defendants did not file a written admission of liability within fifteen days, as ordered, nor did they file any paper explaining their behavior. When the magistrate learned that no admission had been filed, he ordered a Some Disposition Conference for October 7, 1977 to determine the present status of the matter. At the conference, defendants’ counsel stated, for the first time, that the August 17 admission of liability was neither authorized by all the defendant companies nor unlimited as to amount. Rather, said Santiago, the admission was intended to extend only to the amount of the bond for the vessel-$650,000. The magistrate thereupon ordered each defendant either to admit liability without limit as to amount-except for the limits of applicable insurance policies-by October 14, or to produce witnesses for deposition on October 17. Defendants were explicitly warned that failure to comply with this order could result in the striking of their pleadings and of the petition for limitation of liability. On October 14,1977, instead of admitting liability, defendants moved for a postponement for one week of the depositions set for October 17, and a rescheduling of the pretrial conference slated for October 25. On October 17, plaintiffs moved the court to strike defendants' pleadings on liability, and a hearing before the magistrate was held the same day. After reviewing the facts recited above in detail, the magistrate recommended that defendants’ pleadings on liability be stricken, or in the alternative that defendants pay $21,000 to the affected parties plus $500 for each day trial would be delayed by postponing the depositions, originally scheduled for July 5, to October 24. Following a hearing on October 20, the district court adopted the magistrate’s recommendation that defendants’ pleadings, and their petition for limitation of liability, be stricken. We believe the record supports the district court's finding that defendants’ conduct was inexcusably recalcitrant and that it materially prejudiced plaintiffs’ trial preparation and the court’s legitimate efforts to keep this protracted lawsuit moving forward. The fulcrum upon which this course of conduct turned was defendants’ attempt at the August 17 status conference to avert the scheduled depositions by purporting to admit liability so as to make the depositions unnecessary. Had plaintiffs known the admission of liability was not meant to exceed the $650,000 already deposited in court, they plainly would not have acceded to the cancelling of the depositions. All the parties clearly understood that the “privity and knowledge” of the owners would be a major issue when plaintiffs sought to break defendants’ petition for limitation of liability. The manifest purpose of the depostitions scheduled for July 5, and later for August 17, was to explore the question of privity, and to try to establish defendants’ knowledge of various alleged defects in the ZOE COLOCO-TRONE’s navigational and safety equipment. If defendants intended to admit liability only within the limits of 46 U.S.C. § 183, even though they did not so state, then their assertion that further depositions would be unnecessary was highly misleading. plaintiffs sought to break defendants’ petition for limitation of liability. The manifest purpose of the depositions scheduled for July 5, and later for August 17, was to explore the question of privity, and to try to establish defendants’ knowledge of various alleged defects in the ZOE COLOCOTRONI’s navigational and safety equipment. If defendants intended to admit liability only within the limits of 46 U.S.C. § 183, even though they did not so state, then their assertion that further depositions would be unnecessary was highly misleading. It had the effect of lulling plaintiffs into a false sense that the issue of liability was settled, at the same time the approaching trial date made it increasingly unlikely that sufficient time would be available later for full discovery to be conducted. Nothing in defendants’ conduct subsequent to August 17 in any way cured or mitigated the misleading effect of their purported admission of liability. Order to produce a written admission of liability, spelling out the details of their concession, within fifteen days, defendants made no formal response. Ordered again, following the Some Disposition Conference, either to admit liability in writing or to produce witnesses for deposition, defendants did neither, but instead at the last moment requested yet another delay. As we said under similar circumstances in affirming the dismissal of a case for want of prosecution, “There comes a point when the question arises who is running the court-counsel, or the judge. To this there can be but one answer.” Higuera v. Pueblo International, Inc., 585 F.2d 555, 557 (1st Cir. 1978). Defendants insist the district court exceeded its discretion in striking their pleadings and preventing their defenses from becoming considered on the merits. They point out that the enforcement of procedural rules through punitive default judgments may offend the standards of due process. See Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958); Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897). But the district court’s response here was not purely punitive-or “mere punishment” in the words of Hammond Packing Co. v. Arkansas, 212 U.S. 322, 351, 29 S.Ct. 370, 380, 53 L.Ed. 530 (1909); its actions bore a direct and reasonable relation to the prejudice defendants’ irresponsible conduct had already created. See 4A Moore’s Federal Practice 137.03[2.-l] at 37-56. Whether defendants planned all along to limit their unqualified admission of liability, or whether this idea arose as an afterthought, they gained a considerable strategic advantage by their misrepresentations. The district court could protect plaintiffs only by either further delaying trial or by holding defendants to their counsel’s original unqualified admission of liability. The latter course, which the court adopted, was somewhat analogous to the imposing of an equitable estoppel. In the circumstances we see no violation of due process nor any abuse of the court’s discretion. See National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976); Hammond Packing Co. v. Arkansas, 212 U.S. 322, 350-51, 29 S.Ct. 370, 379-80, 53 L.Ed. 530 (1909); Luis C. Forteza e Hijos, Inc. v. Mills, 534 F.2d 415, 419 (1st Cir.1976); cf. Note, The Emerging Deterrence Orientation in the Imposition of Discovery Sanctions, 91 Harv.L.Rev. 1033, 1044 — 45 (1978). III. Defendants next argue that the district court’s attitude toward them was “poisoned” by the court’s unwarranted reliance on depositions of the crew and master of the ZOE COLOCOTRONI to make unnecessary findings on the issue of liability, see 456 F.Supp. at 1333-36. Defendants contend that the depositions, which were taken immediately after the vessel docked in Puerto Rico, were not properly introduced as evidence, and that they represented an attempt by the crew and captain to shift blame for the accident from themselves to the owners. Moreover, defendants argue, it was unnecessary for the court to make any findings on liability once it had stricken defendants’ pleadings. The only purpose served by such findings, according to defendants, was to prejudice the court on the issue of damages. We agree that the findings on liability were redundant. It would have been enough if the allegations in the complaint pertaining to liability had been taken as established. The depositions, moreover, had been received only in support of plaintiffs’ claim for punitive damages, which was thereafter abandoned. But we are not persuaded that the court’s consideration of extraneous liability matters caused undue prejudice or prevented it from fairly deciding the damages issue. As we sustain the court’s striking of defendants’ pleadings, nothing more favorable to defendants could have been found than was found on the issue of liability, and we do not think the record displays a judicial attitude that was “poisoned” against the defendants with respect to the issues that remained. IV. The West of England defendants, insurers of the ZOE COLOCOTRONI, argue the district court erred in asserting personal jurisdiction over them. The insurers maintain they are outside the reach of the District Court of the District of Puerto Rico because they have no office, sell no insurance, and purportedly transact no business in Puerto Rico. To sustain in personam jurisdiction over a foreign corporation, the court must find both that personal jurisdiction is authorized by the local statute and that the exercise of such jurisdiction does not violate the due process requirement that the nonresident defendant have certain “minimum contacts” with the forum state. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 289, 100 S.Ct. 559, 563, 62 L.Ed.2d 490 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). These contacts must be such that the assertion of jurisdiction comports with “ ‘traditional notions of fair play and substantial justice.’ ” Id., quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940). Plaintiffs advanced two theories in the district court to justify in personam jurisdiction over West of England. First, plaintiffs argued that documents obtained from West of England’s local law firm— Hartzell, Ydrach, Mellado, Santiago, Perez & Novas of San Juan, Puerto Rico (hereinafter Hartzell) — demonstrated that the Hartzell firm was actually West of England’s “managing or general agent” in Puerto Rico, such that the firm was impliedly authorized to accept service of process on West of England’s behalf. See Fed. R.Civ.P. 4(d)(3); 2 Moore’s Federal Practice 1114.12, 4.22[1], These documents consisted primarily of files of matters handled for defendants by Hartzell, pamphlets listing Hartzell as “correspondent” for defendants, and instructions issued to Hartzell on its duties as a correspondent. The files showed that Hartzell had, among other things, arranged on behalf of West of England and various insured owners for the burial of a deceased Egyptian sailor with appropriate religious observances, for the repatriation by air of several other sailors, and for numerous surveys and other investigations in connection with possible claims for damage or injury. The district court ruled, however, that these activities by Hartzell were so “substantially intertwined with Hartzell’s primary professional functions” as defendants’ retained law firm that it could not hold Hartzell to be a “managing or general agent” for purposes of accepting service of process on Hartzell’s client. Plaintiffs’ second argument was related to the first, but had a narrower focus. Federal Rule of Civil Procedure 4(e) provides that, constitutional limitations aside, personal jurisdiction may be asserted over a nonresident defendant in the district court to the extent permitted by the long-arm statute of the state in which the court is sitting. See 2 Moore’s Federal Practice 14.01[1]. Puerto Rico’s long-arm statute is expressed in Rule 4.7 of the Puerto Rico Rules of Civil Procedure which provides, in pertinent part, “(a) Where the person to be served is not within Puerto Rico, the General Court of Justice of Puerto Rico shall have personal jurisdiction over said nonresident as if he were a resident of the Commonwealth of Puerto Rico, if the action or claim arises as a result of the following: (1) Such person or his agent carries out business transactions within Puerto Rico.” 32 L.P.R.A., App. II, R. 4.7. Rule 4.7 “permits the exercise of jurisdiction to the full extent of constitutional authority,” limited only by the due process analysis of International Shoe and succeeding cases. Vencedor Manufacturing Co., Inc. v. Gougler Industries, Inc., 557 F.2d 886, 889 (1st Cir.1977). Plaintiffs argued below that West of England’s business contacts with Puerto Rico— in particular, its regular writing of insurance covering vessels like the ZOE COLOCOTRONI, which visited Puerto Rico and operated within Puerto Rican waters — satisfied both the statutory and constitutional tests. The district court agreed. We think this conclusion is correct. The essential constitutional question is whether West of England “purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). The record makes clear that West of England did precisely that. The Hartzell files revealed numerous instances in which ships insured by West of England were involved in incidents giving rise to claims or potential claims while the ships were present in Puerto Rican waters. In each of these instances, West of England’s local correspondent Hartzell was instructed to take actions to forestall claims, to provide services for the shipowners, or to prepare for any eventual litigation. West of England advertised to insured shipowners the fact that such services would be available through its local Puerto Rican correspondent. The contracts of insurance contained no provision preventing any ship from calling on Puerto Rico, or limiting coverage in the event it did. Not only do we know that vessels mentioned in the Hartzell files visited Puerto Rico, it stands to reason that many other West-insured vessels also did so, as the Hartzell files would name only vessels on which claims or other noteworthy incidents occurred. While West of England was not engaged in selling insurance in Puerto Rico, its retention of the Hartzell law firm to perform services for insured owners and vessels in Puerto Rico demonstrates that West of England plainly expected its worldwide business of insuring maritime risks to embrace the territorial waters of Puerto Rieo with some regularity. In certain ways, this case poses less difficulty than American & Foreign Insurance Association [AFIA] v. Commonwealth Insurance Co., 575 F.2d 980 (1st Cir.1978), where we upheld the Puerto Rico district court’s jurisdiction over two nonresident insurance companies operating out of Columbia. The district court in AFIA found that the insurance policy in issue covered a large volume of bottles regularly shipped from Columbia to Puerto Rico, and that one of these bottles injured plaintiff when it exploded. As the nonresident insurers knew from the terms of the policy both the volume of bottles being shipped and their destination, we held that the “companies’ undertaking to insure a substantial subject of insurance in Puerto Rico was ‘voluntary in [a] meaningful sense.’ ” Id. at 982, quoting Vencedor Manufacturing Co., Inc. v. Gougler Industries, Inc., 557 F.2d 886, 891 (1st Cir.1977). There was no indication in AFIA that the insurance companies provided any substantial services to the insured bottler in Puerto Rico or that the insurers’ contacts with Puerto Rico extended beyond this one series of transactions. To be sure, as West of England points out, the record in the present case, does not indicate any explicit undertaking by West of England to insure vessels within Puerto Rican waters. But this fact, standing alone, does not suffice to distinguish the American & Foreign Insurance case. West of England plainly knew that vessels it insured would call on Puerto Rico from time to time, and it made no apparent effort to halt or limit this practice. In fact, by advertising the name of its local correspondent in San Juan, West of England affirmatively encouraged such commerce. This is not a case of a single isolated and unpreventable appearance of an insured vessel in Puerto Rican waters; the record shows such appearances were a readily foreseeable part of the normal course of business. West of England contends, however, that its ability to foresee that insured vessels would enter Puerto Rican territorial waters does not, without more, satisfy the “minimum contacts” test of jurisdiction. The Supreme Court has recently stated that “ ‘foreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause,” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 566, 62 L.Ed.2d 490 (1980). In Woodson, plaintiffs brought a products liability action in Oklahoma against the regional distributor and the retailer of an automobile sold in New York but involved in an Oklahoma accident. The Court held Oklahoma’s assertion of jurisdiction over the two New York corporations to be a violation of due process, since their only connection with Oklahoma was the fortuity that the car they sold passed through the state after it had left their hands. “The foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State,” the Court said. “Rather, it is that the defendant’s conduct and connection with the forum is such that he should reasonably anticipate being haled into court there.” Id. at 297, 100 S.Ct. at 567. The reason for this distinction, according to the Court, is the need to permit “potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.” Id. Woodson is distinguishable from the present case on two grounds. First, this is not a case of mere foreseeability, without more, that a single insured vessel would wander into Puerto Rico by happenstance. Plaintiffs established that vessels insured by West of England frequented Puerto Rico regularly over a period of years, and that they were provided with insurance-related services while there. West of England was unavoidably aware that it was responsible to cover losses arising from a substantial subject of insurance regularly present in Puerto Rico, a direct action jurisdiction. Second, the seller of a product such as the automobile in Woodson ordinarily has no control over where the buyer takes the product after it is sold. If the mere fortuity of the presence of the seller’s product in another jurisdiction subjected the seller to suit in that forum, the seller “would in effect appoint the chattel his agent for service of process. His amenability to suit would travel with the chattel.” Id. at 296, 100 S.Ct. at 566. By contrast, an insurer such as West of England has the power through its contracts of insurance meaningfully to influence the course taken by insured vessels. By limiting coverage to specified jurisdictions, West of England could be reasonably certain it would not be haled into court in an undesired forum. In other words, an insurer is not at the mercy of the insured owner’s unilateral choice of destination in the same way a seller of chattels is at the mercy of the buyer. Where, as here, the insurer has the means available to structure its primary conduct so as to control the area within which it will' be subject to direct action, where it is undoubtedly aware that the objects of its policies are regularly present in a particular jurisdiction, and where it not only does not act to curtail such presence but actively promotes it by providing contractual services in the jurisdiction, we hold that such an insurer is amenable to personal jurisdiction in the forum. V. We now turn from procedural matters to the extremely difficult substantive issues concerning damages. Defendants challenge: (A) the so-called “standing” of Puerto Rico and the EQB to recover damages for environmental injury; (B) the district court’s failure to limit damages by commercial or market value standards; and (C) the approach and data relied upon by the court in assessing damages. A. We turn first to the issue of plaintiffs’ right to bring this lawsuit. The district court held that the Commonwealth had “standing” to recover for damages to natural resources, namely the mangrove trees and the various species of marine creatures living in and around them, on the theory that the Commonwealth was the “trustee of the public trust in these resources” and had an interest in them as parens patriae. 456 F.Supp. at 1337; see Maryland v. Amerada Hess Corp., 350 F.Supp. 1060 (D.Md.1972); Maine v. M/V Tamano, 357 F.Supp. 1097 (D.Me.1973); In re Steuart Transportation Co., 495 F.Supp. 38 (E.D.Va.1980). The court also ruled that the Environmental ^Quality Board had standing to proceed as co-plaintiff seeking similar relief under a state statute authorizing the EQB to bring damages actions for environmental injuries. 456 F.Supp. at 1337; 12 L.P.R.A. § 1131 (29). While the parties and the district court speak in terms of “standing,” we think the question is more properly whether plaintiffs have stated a cognizable cause of action. Defendants concede that Puerto Rico, as owner of the real property primarily affected by the oil spill, see 48 U.S.C. § 749, would, like any private landowner, have a cause of action in admiralty to recover whatever damages it could prove under conventional principles for its private economic loss as measured by diminution of market value in the coastal land. See 46 U.S.C. § 740. The Commonwealth made no attempt to show such damages, however. It seeks relief instead under an asserted right to recover as a governmental entity on behalf of its people for the loss of living natural resources on the land such as trees and animals. Defendants contend that Puerto Rico’s assertion of a recoverable interest in wildlife and other living natural resources is undercut by a line of Supreme Court cases culminating in Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979). See also Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284, 97 S.Ct. 1740, 1751, 52 L.Ed.2d 304 (1977); Toomer v. Witsell, 334 U.S. 385, 402 & n.37, 68 S.Ct. 1156, 1165 & n.37, 92 L.Ed. 1460 (1948); Missouri v. Holland, 252 U.S. 416, 434, 40 S.Ct. 382, 383, 64 L.Ed. 641 (1920); cf. Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896). In Hughes, the Court formally overruled Geer v. Connecticut, invalidating on Commerce Clause grounds a state ban on interstate transportation of wildlife lawfully caught in the state and completing the long erosion of Geer’s theory of state ownership of wildlife. The court recognized, however, that states retain an important interest in the regulation and conservation of wildlife and natural resources. “[T]he general rule we adopt in this case makes ample allowance for preserving, in ways not inconsistent with the Commerce Clause, the legitimate state concerns for conservation and protection of wild animals underlying the 19th Century legal fiction of state ownership.” 441 U.S. at 335-36, 99 S.Ct. at 1736. Later, thé Court said, “We consider the States’ interests in conservation and protection of wild animals as legitimate local purposes similar to the States’ interests in protecting the health and safety of their citizens.” Id. at 337, 99 S.Ct. at 1737. Plaintiffs argue that a state regulatory interest in wildlife and other living resources, expressed metaphorically in the state’s status as “public trustee” of its natural resources, is sufficient in itself to support an action for damages to those resources. See, e. g., Maryland v. Amerada Hess Corp., 350 F.Supp. 1060, 1066-67 (D.Md.1972). Defendants reply that, absent a proprietary interest in the resource actually damaged, a state’s unexercised regulatory authority over wildlife will not support'' a proper cause of action. See, e. g., Commonwealth v. Agway, Inc., 210 Pa.Super. 150, 232 A.2d 69 (1967). We see no need to decide this difficult question in the present case. Here the Commonwealth of Puerto Rico, exercising its undisputed authority to protect and conserve its natural environment, has by statute authorized one of its agencies to maintain actions of this sort. Under the statute, 12 L.P.R.A. § 1131(29), co — plaintiff Environmental Quality Board has, among others, the following duties, powers and functions: “(29) To bring, represented by the Secretary of Justice, by the Board’s attorneys, or by a private attorney contracted for such purpose, civil actions for damages in any court of Puerto Rico or the United States of America to recover the total value of the damages caused to the environment and/or natural resources upon committing any violation of this chapter and its regulations. The amount of any judgment collected to such effect shall be covered into the Special Account of the Board on Environmental Quality.” We read this statute both as creating a cause of action of the type described by its terms and as designating the EQB as the proper party to bring such an action. We see nothing in Hughes v. Oklahoma or in the federal Constitution to prohibit such legislation. Whatever might be the case in the absence of such a local statute, we think that where the Commonwealth of Puerto Rico has thus legislatively authorized the bringing of suits for environmental damages, and has earmarked funds so recovered to a special fund, such an action must be construed as taking the place of any implied common law action the Commonwealth as trustee, might have brought. Any other construction would invite the risk of double recovery and lead to confusion as to the rights of the two state plaintiffs in their identical or nearly identical actions. It is unnecessary, therefore, for us to consider whether, had the legislature of Puerto Rico not delegated to the EQB the right to maintain such suits, the Commonwealth would have an inherent right to bring them itself. Defendants assert, as a sort of last ditch rebuttal to this line of argument, that the present action is not authorized under section 1131(29), because plaintiff EQB failed to allege in the complaint “any violation of this chapter and its regulations.” This assertion is erroneous. In the third amended complaint, plaintiff specifically alleged a violation of 24 L.P.R.A. § 595, which provides: “It shall be unlawful for any person, directly or indirectly, to throw, discharge, pour, or dump, or permit to be thrown, discharged, poured or dumped into the waters, any organic or inorganic matter capable of polluting or of leading to the pollution of said waters in such manner as to place them out of the minimum standards of purity that the Secretary of Health may establish under section 599 of this title.” This statute is explicitly made a part of Title 12, chapter 121 by 12 L.P.R.A. § 1132(b). The “minimum standards of purity” referred to in section 595 have been promulgated, and they make clear that any unauthorized discharge of petroleum into the waters-including the territorial waters-of Puerto Rico is considered unlawful. See P.R.Rules & Regulations, Title 24, § 598-5. Defendants’ challenge to the right of the EQB to maintain this action is thus without merit. Equally unavailing would be any argument that this state statutory action is not cognizable in admiralty. An oil spill on the navigable waters is a breach of federal maritime law. Maryland v. Amerada Hess Corp., 350 F.Supp. 1060, 1065 (D.Md.1972); American Waterways Operators, Inc. v. Askew, 335 F.Supp. 1241, 1247 (M.D.Fla.1971) (three-judge court), rev’d on other grounds, 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973); California v. S. S. Bournemouth, 307 F.Supp. 922, 926 (D.Cal.1969). Where the injury occurs in the territorial waters of a state, the general rule is that admiralty will give “broad recognition of the authority of the States to create rights and liabilities with respect to conduct within their borders, when the state action does not run counter to federal laws or the essential features of an exclusive federal jurisdiction.” Just v. Chambers, 312 U.S. 383, 391, 61 S.Ct. 687, 693, 85 L.Ed. 903 (1941). See also Romero v. International Terminal Operating Co., 358 U.S. 354, 373-74, 79 S.Ct. 468, 480-81, 3 L.Ed.2d 368 (1959). Defendants do not argue, nor could they, that this action runs counter to the essential features of federal jurisdiction. See Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 325, 36 L.Ed.2d 280 (1973). B. Defendants next argue the district court erred in failing to apply the common law “diminution in value” rule in calculating damages. Under the traditional rule, the measure of damages for tortious injury to real property is the difference in the commercial or market value of the property before and. after the event causing injury. See Restatement (Second) of Torts § 929(l)(a) (1979). Where the property can be restored to its original condition for a sum less than the diminution in value, however, the cost of restoration may be substituted as a measure of damages. See, e. g., Big Rock Mountain Corp. v. Stearns-Roger Corp., 388 F.2d 165, 168-69 (8th Cir. 1968). Defendants introduced evidence at trial tending to show that the market value of comparable property in the vicinity of Bahia Sucia was less than $5,000 per acre, based on recent sales. Thus, defendants contend, damages here could not have exceeded $5,000 per affected acre even if the land were shown to have lost all value. We believe that defendants have misconceived the character of the remedy created by section 1131. The EQB is not concerned with any loss in the market or other commercial value of the Commonwealth’s land. In point of fact, the EQB concedes the land has no significant commercial or market value. The claim, rather, is for the injury-broadly conceived-that has been caused to the natural environment by the spilled oil. The question before us is not whether in a typical land damage case a claim of this sort could be successfully advanced-we assume it could not-but rather whether Puerto Rico’s statute empowering the EQB to proceed in cases such as this envisions the awarding of damages on a different basis than would have been traditionally allowed. The district court found that the once flourishing natural environment of the West Mangrove had been seriously damaged by the oil, to the point where some of the underlying sediments were no longer capable of supporting any but the most primitive forms of organic life, such as worms. The Puerto Rico statute authorizing this action specifically empowers the EQB to recover “the total value of the damages caused to the environment and/or natural resources” upon a violation of the anti-pollution provisions. 12 L.P.R.A. § 1131(29) (emphasis added). Implicit in this choice of language, we think, is a determination not to restrict the state to ordinary market damages. Many unspoiled natural areas of considerable ecological value have little or no commercial or market value. Indeed, to the extent such areas have a commercial value, it is logical to assume they will not long remain unspoiled, absent some governmental or philanthropic protection. A strict application of the diminution in value rule would deny the state any right to recover meaningful damages for harm to such areas, and would frustrate appropriate measures to restore or rehabilitate the environment. This perception is confirmed by the course of recent federal legislation in the area of oil pollution. The Clean Water Act of 1972 provided that the United States could recover, up to certain pre-set limits, the costs it incurred in cleaning up after an oil spill, but made no explicit reference to environmental damages. Pub.L.No. 92-500, 92d Cong., 2d Sess. § 311, 86 Stat. 816 (1972), codified at 33 U.S.C. § 1321(f) (1976). The Clean Water Act Amendments of 1977 significantly expanded the scope of a vessel owner’s potential liability. In particular, the federal government and the states were authorized to recover “costs or expenses incurred ... in the restoration or replacement of natural resources damages or destroyed as a result of a discharge of oil or a hazardous substance.” 33 U.S.C. § 1321(f)(4). Recoverable removal costs were defined as including the expense “of such . . . actions as may be necessary to minimize or mitigate damage to the public health or welfare, including, but not limited to, fish, shellfish, wildlife, and public and private property, shorelines, and beaches.” Id. § 1321(a)(8). The liability provision concluded: “The President, or the authorized representative of any State, shall act on behalf of the public as trustee of the natural resources to recover for the costs of replacing or restoring such resources. Sums recovered shall be used to restore, rehabilitate, or acquire the equivalent of such natural resources by the appropriate agencies of the Federal government, or the State government.” Id. § 1321(f)(5). Similarly, in the Outer Continental Shelf Lands Act Amendments of 1978, Congress provided that the government could recover damages for economic loss arising out of an oil spill, including “injury to, or destruction of, natural resources,” 43 U.S.C. § 1813(a)(2)(C), and “loss of use of natural resources,” id. § 1813(a)(2)(D). The Submerged Lands Act, which forms the basis for the Outer Continental Shelf Lands Act, see 43 U.S.C. § 1811(9), defines “natural resources” as including, “without limiting the generality thereof, oil, gas, and other minerals, and fish, shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other marine animal and plant life.” 43 U.S.C. § 1301(e). While the latter acts do not, by their terms, apply to Puerto Rico, see 43 U.S.C. § 1301(g), like the Clean Water Act they do give some indication that Congress has determined that it is desirable to provide for environmental damages apart from the commercial loss, ordinarily measured by a market value yardstick, suffered by landowners and/or exploiters of natural resources. This perception is reinforced by the section of the CCS Lands Act which provides that sums the state recovers “shall be available for use to restore, rehabilitate, or acquire the equivalent of such natural resources by the appropriate agencies of . the State, but the measure of such damages shall not be limited by the sums which can be used to restore or replace such resources.” 43 U.S.C. § 1813(b)(3). Especially in light of this recent federal statutory activity, we think that limitation of recovery to those damages recoverable under the common law “diminution in value” rule would be inconsistent with the manifest intent of Puerto Rico’s environmental statute. In enacting section 1131, Puerto Rico obviously meant to sanction the difficult, but perhaps not impossible, task of putting a price tag on resources whose value cannot always be measured by the rules of the market place. Although the diminution rule is appropriate in most eontexts, and may indeed be appropriate in certain cases under section 1131, see infra, it does not measure the loss which the statute seeks to redress in a context such as the present. No market exists in which Puerto Rico can readily replace what it has lost. The loss is not only to certain plant and animal life but, perhaps more importantly, to the capacity of the now polluted segments of the environment to regenerate and sustain such life for some time into the future. That the Commonwealth did not intend, and perhaps was unable, to exploit these life forms, and the coastal areas which supported them, for commercial purposes should not prevent a damages remedy in the face of the clearly stated legislative intent to compensate for “the total value of the damages caused to the environment and/or natural resources.” 12 L.P.R.A. § 1131(29). In recent times, mankind has become increasingly aware that the planet’s resources are finite and that portions of the land and sea which at first glance seem useless, like salt marshes, barrier reefs, and other coastal areas, often contribute insubtle but critical ways to an environment capable of supporting both human life and the other forms of life on which we all depend. The Puerto Rico statute is obviously aimed at providing a damages remedy with sufficient scope to compensate for, and deter, the destruction of such resources; and while we can see many problems in fashioning such a remedy, we see no reason to try to frustrate that endeavor. We therefore do not limit damages herein to the loss of market value of the real estate affected. C. We turn now to whether the damages awarded by the district court were appropriate. To review the court’s award, we must ascertain what a fair and equitable damages measure would be in these circumstances, and, to that end, it will be helpful to examine the remedial provisions in recent similar federal statutes. There is a strong emphasis in Congressional oil pollution enactments on the concept of restoration. As discussed earlier, the 1977 Clean Water Act amendments provided that the state’s representative, acting as public trustee, could “recover for the costs of replacing or restoring [natural] resources.” 33 U.S.C. § 1321(f)(5). In accordance with the trust analogy, the statute provided: “Sums recovered shall be used to restore, rehabilitate, or acquire the equivalent of such natural resources by the appropriate agencies . .” Id. The legislative history further elaborates this standard: “New subsection (f)(4) and (5) make governmental expenses in connection with damage to or destruction of natural resources a cost of removal which can be recovered from the owner or operator of the discharged source under section 311. For those resources which can be restored or rehabilitated, the measure of liability is the reasonable costs actually incurred by Federal or State authorities in replacing the resources or otherwise mitigating the damage. Where the damaged or destroyed resource is irreplaceable (as an endangered species or an entire fishery), the measure of liability is the reasonable cost of acquiring resources to offset the loss.” House Conf. Rpt. No. 95-830, 95th Cong., 1st Sess. 92, reprinted in [1977] U.S. Code Cong. & Admin. News, pp. 4424, 4467. Borrowing from the suggestion provided by this federal legislation, we think the appropriate primary standard for determining damages in a case such as this is the cost reasonably to be incurred by the sovereign or its designated agency to restore or rehabilitate the environment in the affected area to is pre-existing condition, or as close thereto as is feasible without grossly disproportionate expenditures. The focus in determining such a remedy should be on the steps a reasonable and prudent sovereign or agency would take to mitigate the harm done by the pollution, with attention to such factors as technical feasibility, harmful side effects, compatibility with or duplication of such regeneration as is naturally to be expected, and the extent to which efforts beyond a certain point would become either redundant or disproportionately expensive. Admittedly, such a remedy cannot be calculated with the degree of certainty usually possible when the issue is, for example, damages on a commercial contract. On the other hand, a district court can surely calculate damages under the foregoing standard with as much or more certainty and accuracy as a jury determining damages for pain and suffering or mental anguish. There may be circumstances where direct restoration of the affected area is either physically impossible or so disproportionately expensive that it would not be reasonable to undertake such a remedy. Some other measure of damages might be reasonable in such cases, at least where the process of natural regeneration will be too slow to ensure restoration within a reasonable period. The legislative history of the Clean Water Act amendments, quoted above, suggests as one possibility “the reasonable cost of acquiring resources to offset the loss.” Id. Alternatives might include acquisition of comparable lands for public parks or, as suggested by defendants below, reforestation of a similar proximate site where the presence of oil would not pose the same hazard to ultimate success. As with the remedy of restoration, the damages awarded for such alternative measures should be reasonable and not grossly disproportionate to the harm caused and the ecological values involved. The ultimate purpose of any such remedy should be to protect the public interest in a healthy, functioning environment, and not to provide a windfall to the public treasury. In emphasizing the above measures, we do not mean to rule out others in appropriate circumstances. There may indeed be eases where traditional commercial valuation rules will afford the best yardstick, as where there is a market in which the damaged resource could have been sold that reflects its actual value. Much must necessarily be left to the discretion of courts, especially before a body of precedent has arisen. But while the district court’s discretion is extensive, we are unable to agree with the approach taken by the court here in placing a value on the damaged resources. Plaintiffs presented two principal theories of damages to the court. The first theory was somewhat analogous to the primary standard we have enunciated above, focusing on plaintiffs’ plan to remove the damaged mangrove trees and oil — impregnated sediments from a large area and replace them with clean sediment and container-grown mangrove plants. This plan was estimated to cost approximately $7 million. The district court sensibly and correctly rejected this plan as impractical, inordinately expensive, and unjustifiably dangerous to the healthy mangroves and marine animals still present in the area to be restored. We can find no fault with the district court’s conclusion that this draconian plan was not a step that a reasonable trustee of the natural environment would be expected to take as a means of protecting the corpus of the trust. Plaintiffs’ second theory, which the court accepted, focused on the supposed replacement value of the living creatures-the epibenthic and infaunal animals-alleged to have been permanently destroyed or damaged by the oil spill. Plaintiffs repeatedly disavowed any connection between this theory and an actual restoration plan. In other words, plaintiffs did not represent that they proposed to purchase 92 million invertebrate animals for actual introduction into the sediments, (which, being contaminated with oil, would hardly support them), but rather wished to use the alleged replacement value of these animals as a yardstick for estimating the quantum of harm caused to the Commonwealth. This theory has no apparent analog in the standards for measuring environmental damages we have discussed above. To be sure, the federal statutes from which we have borrowed speak in places of replacement as a part of the appropriate recovery. See, e. g., 33 U.S.C. § 1321(f)(5). But we believe these references, in context, should be interpreted as meaning replacement as a component in a practicable plan for actual restoration. Thus, for example, if a state were seeking to restore a damaged area of forest, a portion of the damages sought might be allocated to replacement of wild birds or game animals or such other creatures as would not be expected to regenerate naturally within a relatively finite period of time even with appropriate restoration. This is a far different matter from permitting the state to recover money damages for the loss of small, commercially valueless creatures which assertedly would perish if returned to the oil-soaked sands, yet probably would replenish themselves naturally if and when restoration-either artificial or natural-took place. The case primarily relied upon by the district court to support its grant of damages for replacement value is not to the contrary. In Feather River Lumber Co. v. United States, 30 F.2d 642 (9th Cir. 1929), the United States brought an action seeking damages for a public forest allegedly destroyed when defendant negligently started a forest fire and permitted it to spread onto public land. The government’s chief witness, a Forestry Service official, stated that he calculated the extent of the fire damage by counting the damaged and undamaged trees on one-tenth acre sample plots located at intervals throughout the 4,000 acre area. The official separated his estimates into two categories, merchantable timber, as to which there was a present market value based on local stumpage prices, and young timber, as to which there was only the possibility of future market value. The Ninth Circuit held that this method was proper as a means of estimating the extent of damage and that, as to the merchantable timber, “the measure of damages was the [market] value of the trees.” Id. at 644. The court also held, “As to young growth, while the measure of damages in such a case is ordinarily the difference in the value of the land before and after the fire, here, there being no law to authorize the sale of the lands injured by the fire, the trial court admitted such evidence as was available to show the damage actually sustained, that is to say, what was required to make the government whole, and this, we think, might properly include the cost of restoring the land to the condition in which it was before the fire.” Id. We think the quoted passage makes clear that the Ninth Circuit did not contemplate a purely abstract recovery such as that proposed here, where the theoretical “loss” was worked out in terms of what it would cost to buy thousands of creatures which, as a practical matter, would never be brought in such a manner and could not be expected to survive if returned to their damaged habitat. Rather, the Ninth Circuit was simply willing to permit the government to recover its actual and reasonable expected restoration costs based on the cost of replanting, a perfectly feasible and reasonable course of action in that case. Thus, leaving aside the question whether plaintiffs’ evidence was sufficient to establish that 92 million creatures were destroyed and that six cents represented an appropriate replacement cost estimate, we are unable to endorse the theory of damages in support of which this evidence was advanced. We thus hold that it was error to award $5,526,583.20 for the replacement value of the destroyed organisms. D. We come finally to the disposition of this case. Defendants argue that, having rejected plaintiffs’ damages theories, we should reverse the district court’s judgment, except as to the Commonwealth’s undisputed cleanup costs. While this is superficially an attractive course, we do not think the matter is quite so simple. To say that the law on this question is unsettled is vastly to understate the situation. The parties in this lawsuit, and we ourselves, have ventured far into uncharted waters. We do not think plaintiffs could reasonably have been expected to anticipate where this journey would take us. Though we have affirmed the district court’s rejection of the Commonwealth’s original, rather grandiose restoration plan, we believe the EQB should still have an opportunity to show, if it can, that some lesser steps are feasible that would have a beneficial effect on the West Mangrove ecosystem without excessive destruction of existing natural resources or disproportionate cost. The costs projected for the carrying out of such reasonable lesser steps would be an appropriate award of damages to the EQB. Plaintiffs may wish, at the same time, to reopen the question of alternative-site restoration, as to which the district court initially declined to take evidence, although we hasten to add that we do not now rule on whether the concept of alternative site restoration would make sense in this case as a measure of damages. We therefore, remand the case to the district court with instructions to reopen the record for further evidence on the issue of damages in line with our discussion of the principles governing recovery in cases of this sort. Defendants cannot successfully claim that this disposition will prejudice their rights appreciably. Defendants themselves introduced evidence at the first trial on damages seeking to establish that restoration projects less extensive and less costly than plaintiffs’ were possible. Had the district court accepted these proposals in lieu of plaintiffs’, defendants would have had a potential liability of up to $1 million. We do not mean to suggest that plaintiffs are necessarily entitled to recover this, or any other, specific amount. Nor do we put any limits on defendants’ right to contest any proposals put forward by the plaintiffs, or to offer counterproposals. In essence, while the court and the parties are entitled to rely on the record already developed to the extent they wish to do so, we think the record should be reopened on the issue of damages, with a renewed evidentiary hearing to be conducted in light of the standards for measuring such damages we have announced today. While we regret the necessity this will entail for further delay in this already protracted litigation, we trust that the district court, with the good faith assistance of the parties, will be able to carry out further proceedings without unreasonable delay. To avoid any question that might be raised, see O’Shea v. United States, 491 F.2d 774, 778-80 (1st Cir. 1974), we note that we can see no reason why this case should not go back to the same district judge, who already possesses considerable familiarity with it. Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. . Several other actions that were initially consolidated with this one have been settled or adjudicated. The United States recovered $840,366.01 in cleanup costs, interest and statutory penalties against the owners of the oil tanker; we refused to enlarge this award by adding attorney’s fees and additional prejudgment interest. United States v. M/V Zoe Colocotroni, 602 F.2d 12 (1st Cir.1979). Local fishermen and owners of a nearby salt pond settled their claims for property damage and lost income for $55,000 and $75,000 respectively. A local hotel’s claim for riparian damages and loss of business was also settled, for $13,500. . Defendants in this action are the SS ZOE COLOCOTRONI (in rem); the owners-Marbonanza Compañía Naviera, S.A., Colocotroni, Ltd., and/or Colocotroni Brothers, S.A.; and the insurance underwriters-the West of England Ship Owners Mutual Protection and Indemnity Association (hereinafter West of England-Luxembourg) and the West of England Ship Owners Mutual Insurance Association (hereinafter West of England-London). The two West of England firms (hereinafter collectively West of England) were sued under Puerto Rico’s direct action statute, 26 L.P.R.A. § 2003, as insurers of the ZOE COLOCOTRONI and her owners. West of England’s contention that the district court lacked personal jurisdiction over the two firms is discussed in Part IV infra. . Defendants also argue that receipt by the Commonwealth of a $162,194 grant from the Environmental Protection Agency (EPA) for litigation expenses in connection with the Bahia Sucia oil spill constituted “maintenance” in the common law sense. In the alternative, defendants argue the amount of the grant should be set off against any recovery to which the plaintiffs may be entitled. These arguments are specious. See generally Corbin on Contracts § 1423 (no illegality in assisting another to maintain a suit by advancing the money to pay costs and expenses, even as a gift, if the advancement is made for reasons of charity or friendship and not for profit). Section 106(a) of the Federal Water Pollution Control Act, 33 U.S.C. § 1256(a), provides that EPA may grant funds to states “for the prevention, reduction, and elimination of pollution, including enforcement directly or through appropriate State law enforcement officers or agencies.” The regulations define “enforcement” to include “litigation support activities.” 40 C.F.R. § 35.1513-5(c)(8). A statutorily authorized government grant intended to further the purposes of a valid statute does not constitute “maintenance” by the United States. Cf. Mitchell v. Mitchell Truck Line, Inc., 286 F.2d 721, 727 (5th Cir. 1961) (Secretary of Labor’s solicitation of minimum wage complaints pursuant to statutory scheme not “barratrous”). . The captain was ultimately tried and convicted on a charge of violating 33 U.S.C. § 1321(b)(5) in connection with the dumping of the oil. 456 F.Supp. at 1333 n.9. . Two hermits-Hermit One and the Dogmanlived in the West Mangrove area at the time of trial, the Dogman being so called because of his large collection of canine acquaintances. Neither hermit claimed any legal interest in the property. Various local topographical features were identified in court by reference to these two eponymous individuals. . In the district court, the terms “benthic infauna” and “infaunal creatures” were used to describe creatures such as worms or clams living in or under the sediment beneath the mangroves. The term “epibenthic” was used to describe creatures such as shrimp or crabs that live just above the surface of the sediment, whether in or out of the water. While defendants have questioned the accuracy of this terminology on technical grounds, we believe the intended meaning of these terms is clear enough in the record, and we will use them in the same fashion as the district court. . Indeed, the literal English translation of Bahia Sucia is “dirty bay.” . On the first day of trial, the district court judge and counsel for the parties made an on-site visual inspection of the Bahia Sucia shoreline. . Cruz Perez testified that he made his calculations working from aerial photographs and from on-site observations. Cruz Perez’s study showed the size of the various impacted areas in numbers of square meters. We have translated these figures into numbers of acres for ease of reference. According to Cruz Perez’s figures, there were a total of about 12 acres of mangroves in the West Mangrove area, of which about half were living mangroves in unaffected sediments. The figures suggest there were also about 2.5 acres of dead mangroves not impacted by oil. For a further discussion of the significance of these numbers, see note 25 infra. . Dr. Sorenson did not testify that the biological supply houses actually procured specimens at Bahia Sucia or that the Bahia Sucia animals were marketable through such outlets. He only stated that creatures similar to those killed could be replaced by purchasing them from the catalogs. . See Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39 (1st Cir. 1979). . In light of our disposition of this case, we do not reach defendants’ appeal from the district court’s denial of their Rule 60 motions. On remand, defendants are free to resubmit to the district court such of the evidence supporting their Rule 60 motions as is relevant to the issues remaining to be decided. . The Limitation of Liability Act of 1851, 46 U.S.C. § 183, provides that in the event of an accident “incurred without the privity or knowledge” of the vessel owner, the liability of the owner for property damage “shall not . exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.” Defendants petitioned pursuant to 46 U.S.C. § 185 to have their liability limited to $650,000 — the amount deposited with the court as security for the vessel. For a discussion of the Act as it relates to oil pollution litigation, see Mendelsohn & Fidell, Liability for Oil Pollution — United States Law, 10 J.Mar.L. & Com. 475, 475-477 (1979). . Such a motion was in fact made, and on July 29, 1977, the court ordered defendants to pay $467.25 to the United States and $750 to the Commonwealth of Puerto Rico and the EQB. No appeal was taken from that order. . Defendants now contend they misunderstood this order and believed the depositions were to be taken October 19. The record contradicts this assertion, however, as defendants’ own contemporaneous submissions, with one exception, make reference to the October 17 date, and this is the date which appears plainly in the court’s written order. . Though the magistrate did not explicitly cite earlier conduct of the defendants, plaintiffs assert that defendants’ earlier conduct also evidenced their bad faith attitude toward the discovery process. On June 20, 1973, at the outset of the litigation, the court denied a motion by Vicente M. Ydrach, a San Juan attorney representing the West of England firms, to quash a notice of deposition and subpoena duces tecum issued June 5. Despite an order directing Ydrach to comply with the subpoena by June 23, he appeared at his deposition and refused to answer, questions or produce documents on the ground of attorney-client privilege. Defendant West of England-Luxembourg was subsequently ordered to deposit all subpoenaed documents with the court so that the magistrate could separate those that were discoverable from those that were privileged. The magistrate’s report was issued March 21, 1974. West of England filed eight motions for extension before finally submitting its objections to the magistrate’s report on October .11, 1974. On September 17, 1975, the district court, adopting the magistrate’s report, ordered West of England to produce the discoverable documents. The order was not obeyed. Plaintiffs moved for sanctions. After a hearing, the district court on November 7 repeated its order to West of England, noting that failure to comply within ten days would result in all pleadings and defenses being stricken, all motions being denied, and a default judgment being entered. This order apparently was obeyed. . Defendants challenge one further aspect of the district court’s findings. Based on the depositions and other exhibits of the crew and master, the court found that the owners knowingly and negligently permitted the ZOE COLOCOTRONI to depart Venezuela in an unseaworthy condition. In their brief, defendants assert that the standard marine insurance contract exempts the insurer from the duty to cover losses engendered by the owners’ knowing use of an unseaworthy vessel. Defendants apparently have reference to Rule 30(b)(ii) of the “Rules and List of Correspondents” of West of England, which provides: “Notwithstanding anything contained in Rule 15 or any other agreement between the Association and an insured Owner the insurance afforded by the Association shall not extend to liabilities, costs or expenses attributable to the willful misconduct of the insured Owner or his Managers.” (Emphasis added.) The insurers’ argument is that it is inconsistent to hold them liable in light of the district court’s findings as to the owners’ degree of fault. For purposes of this litigation, which involved no cross-claims between the insurers and the owners, it is enough to say that all the defendants’ pleadings on liability were stricken — including the insurers’ defenses based on the terms and conditions of the insurance contract. As we have herein upheld the striking of the pleadings, defendant insurers were properly barred from raising this defense against plaintiffs. . The result we reach is further buttressed by the Supreme Court’s occasional suggestions that the test for measuring minimum contacts for insurance companies may be somewhat less stringent than for other nonresident corporations because of the forum state’s public policy interest in promoting effective redress for injuries. See McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957); cf. Hanson v. Denckla, 357 U.S. 235, 252, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). Here the maritime accident resulted in injury to Puerto Rico’s coastal environment, and plaintiffs represented this forum-related interest. . Plaintiffs’ Article III standing is not challenged here, since, assuming, plaintiffs have a valid cause of action, they clearly are the proper parties to raise it. See Davis v. Passman, 442 U.S. 228, 239 & n.18, 99 S.Ct. 2264, 2273-4 & n.18, 60 L.Ed.2d 846 (1979). . We note at this point several questions which are not presented in this case, and on which we express no opinion. First, since the lands in question were all owned by Puerto Rico, we need not decide whether or in what circumstances a state might have a cause of action for environmental harm to privately owned land. Second, since the living natural resources in issue here were all attached more or less permanently to the land, we also do not decide whether any cause of action would accrue, and if so what remedies would be available, where more transitory forms of wildlife such as birds or fish were damaged. Third, this case does not present the issue of overlapping state and federal causes of action. While the Federal Clean Water Act of 1977 specifically stated that it did not preempt the imposition by a state of “any requirement or liability with respect to the discharge of oil or hazardous substance into any waters within such State,” 33 U.S.C. § 1321(o)(2), a problem of double recovery might be raised under some circumstances. Here, however, the United States made no claim for environmental damage (at the time this case arose there was no federal statute authorizing such an action) and asserted no legal interest in the affected lands. The interplay of the state cause of action asserted here with the federal remedial legislation discussed infra is an issue we therefore leave for another day. . The diminution rule has itself been limited in cases where the property has a special value to the injured party that is not reflected in its market value. See, e. g., Rector, Wardens and Vestry of St. Christopher’s Episcopal Church v. C. S. McCrossan, Inc., 306 Minn. 143, 235 N.W.2d 609 (Minn. 1975) (and cases cited therein); Restatement (Second) of Torts § 929(l)(a) and comment b (1979). The principles later discussed as being applicable in cases like this one, such as attempting to ascertain the reasonable cost of restoration, are thus not so completely removed from traditional valuation theory as might, at first blush, appear. . See note 20 supra. As we stated earlier, our holding is limited to circumstances such as these where the sovereign seeking to recover has an ownership interest in the real property where the environmental damage occurred. . “The technology available to remove oil and to restock plant and animal communities is very limited at present, and development of such a technology would be a long-range • undertaking .... In most instances, the recovery of an ecosystem after an oil spill would occur, if at all, only through the slow processes of natural regeneration.” Wood, Requiring Polluters to Pay for Aquatic Natural Resources Destroyed by Oil Pollution, 8 Nat.Res. Lawyer 545, 598 (1976). If natural regeneration is likely to occur within a reasonable period, it is conceivable in some cases that this will be enough. Whether to award damages based on the cost of hastening restoration by artificial means will depend on a weighing of factors such as the feasibility and cost of the restoration plan, how long natural regeneration will take, how certain it is to occur, and how serious are the effects of a temporary absence of the damaged resources. There will doubtless be other factors we cannot now foresee. . Other reasonable and scientifically credible means of estimating damages in circumstances where complete restoration is not possible may exist. Defendants presented testimony by Dr. Roger Anderson, for example, suggesting that there is some scientific basis for the placing of a dollar value on commercially nonvaluable property such as marshland by estimating the contributions such land makes to other valuable activities like fisheries or recreation. Moreover, a bill currently pending in Congress-the so-called Superfund Bill-would, if enacted, expand the capacity of the federal and state governments to recover damages for natural resources injured by oil or other hazardous substances. Damages would not be limited to restoration and related replacement costs, but would also include a dollar value based on “assessment” of the damage to the environment. Such an assessment would in turn be based on methodologies to be developed through rulemaking by three federal agencies: the Environmental Protection Agency, the Fish and Wildlife Service, and the National Oceanic and Atmospheric Administration. See S. 2083, 95th Cong., 2d Sess. § 5(e) (1978). For a more complete discussion of this proposed legislation, see DuBey & Fidell, The Assessment of Pollution Damage to Aquatic Resources: Alternatives to the Trial Model, 19 Santa Clara L.Rev. 641, 674-80 (1979). Since many of these methodologies are in their infancy, see Note, Assessment of Civil Monetary Penalties for Water Pollution: A Proposal for Shifting the Burden of Proof Regarding Damages, 30 Hastings L.J. 651, 674 — 79 (1979), we wish neither to endorse nor rule out altogether their use in appropriate cases. . Plaintiffs also offered a third claim for damages, which the district court accepted. This claim involved the estimate of $559,500 as the cost of replanting 23 acres with container-grown mangrove trees. Within the context of the evidence presented, and the other rulings made by the district court, we are unable to understand its acceptance of this component of the damages. First, plaintiffs’ experts clearly testified that the 23 areas included mangroves in both East Mangrove and West Mangrove, with the larger area being in the east. See, e. g., note 9 supra. In light of the district court’s finding that there was no significant damage in East Mangrove, it is not clear why replanting of mangroves on that site was necessary at all. Furthermore, plaintiffs’ experts also testified that the mangrove trees in the West Mangrove were dead or dying because of the presence of oil in the sediments. Replanting new trees in this same oil-soaked environment seems pointless if no attempt is to be made to counteract the effects of the oil. As we are remanding the case in any event, we think this award should be vacated pending a redetermination of the extent of the damage in West Mangrove and a further submission by plaintiffs integrating this proposal into a more reasonable plan, or set of alternative plans, for restoring the area.

Mills v. United States

PER CURIAM: This is an appeal from an order entered in the United States District Court for the Northern District of Florida denying the appellants’ motion to vacate or set aside their sentences brought pursuant to 28 U.S.C. § 2255, or in the alternative, for a writ of error eoram nobis. See United States v. Mills, 817 F.Supp. 1546 (N.D.Fla.1993). For the reasons stated below, we affirm. I. BACKGROUND The appellants, Ocie and Carey C. Mills, jointly owned two parcels of property located in the Spanish Landing Subdivision in Santa Rosa County, Florida, adjacent to the East Bay, an arm of the Gulf of Mexico. Earlier, in 1985, the United States Army Corps of Engineers (the “Corps”) determined that a major portion of one of the lots was a wetland. At that time the land was owned by Lewis W. Jenkins. Jenkins, who planned to build a retirement home on the property, had placed some red clay fill on the site in preparation to build a driveway. Upon discovery of this activity, the Corps issued a cease and desist order to Jenkins, which informed him that it would be necessary to obtain authorization from the Corps prior to placing fill material on real estate designated as wetlands. The order instructed him to either restore the area to its former state or to obtain an after-the-fact permit from the Corps. The unrestored property was later acquired by the appellants, with full knowledge of the problems surrounding its partial designation as wetlands. They continued to deposit dirt and sand fill on the wetlands area without a permit despite receiving two additional cease and desist letters. They also impermissibly enlarged an existing drainage ditch causing it to become subject to the ebb and flow of the tide. The appellants were eventually charged with and found criminally liable of violating the Clean Water Act, 33 U.S.C. §§ 1311(a), 1319(c) (Counts I, II, III, IV and VI), and the Rivers and Harbors Act, 33 U.S.C. §§ 403, 406 (Count V). They were each sentenced to concurrent terms of imprisonment totaling twenty-one months and to one year of supervised release. In addition, they were both ordered to pay fines of $5,000.00 and $250.00 in special assessments. As a condition of supervised release, they were required to comply with a site restoration plan prepared by the Corps and the Environmental Protection Agency. This court, in an unpublished decision, summarily affirmed their convictions and sentences on direct appeal. United States v. Mills, 904 F.2d 713 (11th Cir.1990). After the appellants were discharged from incarceration to supervised release, the government, through the United States Probation Office, petitioned the district court to enforce the conditions of supervised release because of the alleged failure of the appellants to comply with the restoration plan. After holding extensive hearings and personally inspecting the site, Judge Roger Vinson, who did not preside over the criminal trial, rejected the government’s contention that an additional ten inches of soil needed to be removed from the wetlands portion of the property (Lot 20) to achieve restoration. Specifically, Judge Vinson found that the elevation of Lot 20 is now at, or in some instances, below, the elevation as it existed in December of 1985. The Government’s contention that ten more inches of soil need to be removed from Lot 20 would result in turning Lot 20 into a pond, an undesirable condition. The lot is now totally denuded and ugly, in stark contrast to the beautiful lot that existed prior to 1986. Although there are detectable amounts of clay remaining on the lot, I find that the defendants have met the requirements of the site restoration plan insofar as it applies to elevation. (R1-154V7). At some point during the pendency of the enforcement proceedings, the Millses filed the § 2255 petition, the subject of this appeal, which was also assigned to Judge Vinson for consideration and disposition. In it, the appellants asserted four grounds for relief — first, that their convictions under the Clean Water Act are void because Congress unconstitutionally delegated its legislative authority to the Corps to define “waters of the United States” to include an expansive view of what constitutes “wetlands”; second, that they were selectively prosecuted for exercising their First Amendment rights; third, that they were denied due process when the district court prevented them from pursuing a defense of equitable estoppel at their criminal trial; and fourth, that evidence presented in the supervised release hearing established that the property had ceased to be a wetland at the time they added the soil fill. Judge Vinson found that the second claim was procedurally barred because the Millses failed to raise it on direct appeal. He concluded, conversely, that the third and fourth grounds had already been rejected by this court and, therefore, were not subject to further review. He observed that the appellants also should have, but failed, to present earlier their constitutional argument concerning the delegation of authority to define “waters of the United States” to include “wetlands.” Because this claim of error challenged the validity of the statute under which they were convicted, however, he reviewed its merits to determine whether this lapse could be excused under the fundamental miscarriage of justice exception to the procedural default doctrine. See Mills, 817 F.Supp. at 1549-50. After thoroughly analyzing the Clean Water Act, its legislative history and the context in which the statute was enacted, and in light of the Supreme Court’s decision in United States v. Riverside Bayview Homes, 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), Judge Vinson found no unconstitutional delegation of legislative power. See id. at 1552-55. He therefore denied relief and this appeal followed. II. DISCUSSION Generally speaking, an available challenge to a criminal conviction or sentence must be advanced on direct appeal or else it will be considered procedurally barred in a § 2255 proceeding. See Greene v. United States, 880 F.2d 1299, 1305 (11th Cir.1989) (and the cases cited therein), cert. denied, 494 U.S. 1018, 110 S.Ct. 1322, 108 L.Ed.2d 498 (1990). A ground of error is usually “available” on direct appeal when its merits can be reviewed without further factual development. Compare United States v. Arango, 853 F.2d 818, 823 (11th Cir.1988) (an allegation of ineffective assistance of counsel must be raised by collateral attack as opposed to direct appeal because of the necessity to develop a factual basis for its validity through a hearing), with United States v. Andrews, 953 F.2d 1312, 1327 (11th Cir.) (claims of ineffective assistance may be considered on direct appeal where there is sufficient evidence on the record to resolve the issue), cert. denied, — U.S. -, -, 112 S.Ct. 3008, 3048, 120 L.Ed.2d 882, 915 (1992). When a defendant fails to pursue an available claim on direct appeal, it will not be considered in a motion for § 2255 relief unless he can establish cause for the default and actual prejudice resulting from the alleged error. Cross v. United States, 893 F.2d 1287, 1289 (11th Cir.), cert. denied, 498 U.S. 849, 111 S.Ct. 138, 112 L.Ed.2d 105 (1990). Alternatively, under the fundamental miscarriage of justice exception, “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397, 413 (1986). On the other hand, prior disposition of a ground of error on direct appeal, in most eases, precludes further review in a subsequent collateral proceeding. See United States v. Hobson, 825 F.2d 364, 366 (11th Cir.1987), vacated on other grounds, 492 U.S. 913, 109 S.Ct. 3233, 106 L.Ed.2d 581 (1989). The appellants’ first ground for relief, that Congress unconstitutionally delegated its duty to define “waters of the United States” to the Corps, should have been asserted on direct appeal. The district court correctly concluded nevertheless that, if this delegation of authority rendered the statute void, the appellants’ procedural default could be excused under the fundamental miscarriage of justice exception because a defendant is actually innocent of a crime where the underlying statute is without force or effect. See Gonzalez v. Abbott, 967 F.2d 1499, 1504 (11th Cir.1992). We also agree with the district court, however, that this constitutional argument lacks merit. In Riverside Bayview Homes, Inc., the Supreme Court held that the Corps’ interpretation of “waters of the United States” to include wetlands adjacent to navigable waters is reasonable and in keeping with the expressed intent of Congress. See Riverside Bayview Homes, Inc., 474 U.S. at 131-39, 106 S.Ct. at 461-65, 88 L.Ed.2d at 429-34. Further, we concur with the district court that, considering the purpose of the Clean Water Act, the context in which it was enacted and its legislative history, Congress provided sufficiently precise standards by which to judge the delegation in issue such that the appellants’ challenge must fail. See id.; United States v. Sans, 731 F.2d 1521, 1527-28 (11th Cir.1984) (legislation which prescribes essential parameters and basic legislative policy and delegates to an administrator authority for promulgation of rules and regulations is constitutionally permissible so long as the criteria are sufficiently clear to enable Congress, the courts and the public to ascertain whether the administrator has conformed to those standards), cert. denied, 469 U.S. 1111, 105 S.Ct. 791, 83 L.Ed.2d 785 (1985). The district court properly refused to substantively address the appellants’ remaining contentions. This court has already rejected the equitable estoppel argument as well as an assertion that the evidence at trial failed to establish that Lot 20 was a wetland at the time of the offenses. In support of the latter ground, the appellants rely on evidence adduced at the subsequently held supervised release hearing. Even if this evidence could support a finding that the property had lost its wetlands character prior to the appellants’ ownership, a finding upon which we voice no opinion, the time to present this proof was at the trial on the merits. We find no error in the district court’s refusal to revisit the sufficiency of the evidence. See Hobson, 825 F.2d at 366. Finally, the record reveals that, even assuming that the selective prosecution ground was not procedurally barred, it is without substance. III. CONCLUSION In keeping with the foregoing analysis, the district court’s judgment denying the appellants’ motion for § 2255 relief, or in the alternative, for a writ of error coram nobis, is AFFIRMED. . The Clean Water Act prohibits the discharge of dredged or fill materials into “navigable waters," defined in the Act as "waters of the United States,” without permission from the Corps. By regulation, the Corps has construed "waters of the United States” to encompass a broad category of “wetlands.” See 33 U.S.C. §§ 1311, 1344, 1362; 33 C.F.R. §§ 323.2(a), 328.3; see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123-24, 106 S.Ct. 455, 457-58, 88 L.Ed.2d 419, 424 (1985). . The pleadings filed in the direct criminal appeal were not made a part of the record in the present appeal. According to the district court's order denying § 2255 relief, the appellants maintained on direct appeal that (1) § 1311 is unconstitutionally vague and overly broad; (2) the district court erroneously prevented them from asserting an equitable estoppel defense; and (3) there was insufficient evidence to establish that, at the time they placed fill material on the property in issue, it was a wetland. See Mills, 817 F.Supp. at 1549 & n. 2, 1555-56, 1558. The appellants do not take issue with the district court’s account of their assignments of error on direct appeal. We, therefore, accept it as accurate. . In support of the appellants’ claim that the property no longer constituted a wetland at the time of their ownership they relied on testimony presented at the supervised release hearing and on Judge Vinson's finding that the elevation of Lot 20 was at, or in some places helow, its elevation in 1985. They argued that, if the lot is presently an upland, and the Defendants in some instances have gone below the elevation as it existed in December of 1985, then the property was obviously an upland in 1985. If the property was an upland in 1985, the Corps did not have jurisdiction. The Mills’ [sic] have been convicted and punished for conduct which was not criminal. (Rl-159-8). In the order denying § 2255 relief, Judge Vinson stated that a significant factual development from the supervised release hearing “was a determination that, at the time in question, the subject land (Lot 20) was probably not a ’wetland’ for purposes of the Clean Water Act.” Mills, 817 F.Supp. at 1548. He nevertheless concluded that the sufficiency of the evidence with respect to whether the property was a wetland was "fully disposed of on direct appeal and, therefore, [was] not cognizable under Section 2255.” Id. at 1549. . The appellants did not attempt to show cause for their procedural default. . The question of whether the Corps' authority properly extends to regulating the discharge of fill material onto wetlands not adjacent to bodies of open water was not before the Supreme Court, nor is it before us. See Riverside Bayview Homes, Inc., 474 U.S. at 131 n. 8, 106 S.Ct. at 461 n. 8, 88 L.Ed.2d at 429 n. 8; Mills, 817 F.Supp. at 1551 n. 5. . The appellants, who represented themselves at trial, contend they were not competent in the ways of introducing expert opinion testimony on such matters. They do not state, however, that their election to proceed pro se was the result of an unknowing or involuntary waiver of their right to counsel. .This allegation is based upon a letter to the United States Attorney, dated February 12, 1987, written by a District Engineer with the Corp recommending that Ocie Mills be criminally prosecuted. (The letter does not mention Carey Mills). The appellants contend they learned of the existence of this letter pursuant to a Freedom of Information Act request which they made during their incarceration. Establishing cause for a procedural default ordinarily turns on whether a claim could not have been asserted in a timely manner due to some objective factor external to the defense. Yeck v. Goodwin, 985 F.2d 538, 542 (11th Cir.1993). The appellants offer no explanation for their delay in discovering this letter.

United States v. Tull

HARRISON L. WINTER, Chief Judge: Defendant Tull, a real estate developer, placed fill on “wetlands” without a permit at several locations on the island of Chincoteague, Virginia. The government sued, alleging that this filling violated both the Clean Water Act, 33 U.S.C. § 1251 et seq., and the Rivers and Harbors Appropriation Act, 33 U.S.C. § 401 et seq. The district court 615 F.Supp. 610, found Tull had violated both Acts, fined him, and ordered various other remedies. Tull appeals, and we affirm. I. We begin our discussion by summarizing the statutory and factual background of this dispute. We then treat those of appellant’s arguments that merit discussion. Statutory Background The Clean Water Act aims “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To accomplish this purpose, the Act prohibits the discharge without a permit of dredged or fill material into “navigable waters” of the United States. 33 U.S.C. §§ 1311, 1344. The Act authorizes the Secretary of the Army to issue the permits required for such discharges. The Secretary has in turn delegated this authority to the Corps of Engineers. 33 C.F.R. § 325.8 (1984). The Corps evaluates permit applications under guidelines developed by the Environmental Protection Agency in conjunction with the Secretary of the Army. 33 U.S.C. § 1344(b). The reach of the Clean Water Act extends beyond discharges into waters actually supporting navigation. “Navigable waters” are defined as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). During the legislative proceedings culminating in the enactment of that section, the Conference Committee explained the legislative intent in defining this term: The Conferees fully intend that the term “navigable waters” be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes. S.Conf.Rep. No. 1236, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad. News 3668, 3776, 3822. Included in the areas subject to Corps regulation under the Clean Water Act are “wetlands” adjacent to other “waters” of the United States. 33 C.F.R. § 323.2(a)(1)-(7) (1984). “Wetlands” are defined as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted to life in saturated soil conditions.” The administrative definition further provides that wetlands “generally include swamps, marshes, bogs and similar areas.” 33 C.F.R. § 323.2(c) (1984). The Rivers and Harbors Act, which defendant Tull was also found to have violated, prohibits placing fill in navigable waters without the authorization of the Secretary of the Army. 33 U.S.C. § 403. This Act defined “navigable waters” at the time of Tull’s alleged violation as waters that “have been used in the past, are now used, or are susceptible to use” for interstate commerce, and waters subject to the ebb and flow of the tide. 33 C.F.R. § 209.-260(k)(2) (1975), superseded by 33 C.F.R. § 329.4 (1984) (similar definition). Factual Background The government sued Tull in July of 1981 for dumping fill at three locations in violation of the Clean Water Act: (1) Ocean Breeze Mobile Homes Sites; (2) Mire Pond Properties (3) Eel Creek. The government later amended its complaint to allege that by placing fill in Fowling Gut Extended, a manmade waterway on the Ocean Breeze property, Tull also violated the Rivers and Harbors Act. The evidence at a 15-day bench trial showed that Tull began placing fill on the Ocean Breeze property in 1975, on the Mire Pond properties in 1978, and on the Eel Creek property sometime after December of 1980. Tull filled in Fowling Gut Extended, a body of water described as a canal or ditch, beginning in 1976. Tull never applied for a permit to place fill at any of these locations. Tull did not deny that he had placed fill at the locations alleged, nor did he claim that he had ever applied for a permit. Rather, he argued that the properties filled did not contain wetlands within the meaning of the Clean Water Act, and that Fowling Gut Extended was not navigable within the meaning of the Rivers and Harbors Act. He further argued that the government was estopped from seeking equitable relief, and that the Clean Water Act as applied to him was unconstitutional. On the issue of whether the filled properties contained wetlands, the government produced at trial extensive evidence, including 12 expert witnesses, to establish that the areas filled by Tull included “wetlands” within the jurisdiction of the Corps of Engineers. Buried soil analysis showed the presence of peat, which develops only in a wetlands system. Vegetation analysis showed the presence of “obligate” wetlands species, which require saturated soil conditions. Expert testimony established tidal influence and some degree of inundation. Dr. Donna Ware, a court-appointed expert, agreed with the conclusions of the government witnesses, finding wetlands existed on the properties in question. Mr. Ronald Beebe, a civil engineer testifying for Tull, disagreed. His opinion that certain filled areas were not within Corps jurisdiction, however, was based not on the regulatory definition of wetlands, but on the fact that the developed sections lay above the high-water mark. The district court supplemented the extensive expert testimony by conducting a viewing of the filled areas. The evidence on Fowling Gut Extended showed that the federal government had spent $30,000 in 1963 for construction of a drainage ditch to control mosquito breeding. One witness testified that boats could travel up this ditch or canal, at least for a short time, and that it was subject to the ebb and flow of the tide. The district court concluded there was “substantial, credible evidence” that Tull had filled areas “typically tidal, marsh or bog in character” on all the properties in question. It found that Fowling Gut Extended “was navigable in fact and was utilized by boat traffic subsequent to 1963 and prior to the time when [Tull] filled in this waterway without applying for or obtaining any permit from the Army Corps of Engineers.” Concluding that Tull had violated both Acts, the district court assessed fines of $75,000 for the filling at Ocean Breeze, Mire Pond, and Eel Creek, and ordered Tull to restore areas on all three properties to wetlands. For filling Fowling Gut Extended, Tull was ordered either to pay a $250,000 fine or to restore the canal “to its former navigable condition.” II. Whether the Clean Water Act or its Application Here is Unconstitutional A. The Commerce Clause Tull argues that the regulation of his property under the Clean Water Act goes beyond the proper reach of the commerce clause. The Seventh Circuit rejected this argument in United States v. Byrd, 609 F.2d 1204, 1210 (7 Cir.1979). It found that regulating wetlands was justified by the negative effect that destruction of wetlands could have on the “biological, chemical, and physical integrity of the [navigable] lakes they adjoin.” Id. at 1210. The Supreme Court has cited this discussion in Byrd with approval, noting “we agree with the lower federal courts that have uniformly found the power conferred by the Commerce Clause broad enough to permit congressional regulation of activities causing air or water pollution____” Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 282, 101 S.Ct. 2352, 2363, 69 L.Ed.2d 1 (1981). We follow these authorities and reject defendant’s argument. Tull concedes that there is precedent rejecting his commerce clause argument. He urges, however, that the government already litigated this issue against him and lost, in United States v. Tull, No. 75-319-N slip op. (E.D.Va. November 12, 1975). We disagree. Collateral estoppel precludes the government from relitigating “the same issue already litigated against the same party in another case involving virtually identical facts.” United States v. Stauffer Chemical Co., 464 U.S. 165,-, 104 S.Ct. 575, 578, 78 L.Ed.2d 388, 392 (1984). The earlier case against Tull, however, did not present a virtually identical situation, nor was the commerce clause issue squarely presented. In the earlier case, Tull introduced fill without a permit into an area behind a bulkhead. The district court found that the area was “high and dry most of the time,” and “would probably see a little flooding for only two or three hours per month.” It lay above the mean high water line, and the district court found it “could not even be said to be ‘periodically’ flooded” within the meaning of the regulation then defining Corps jurisdiction. See 40 Fed.Reg. 31,320 (1975). The district court then suggested in dictum that including land which is “high and dry, above the average high tide” line within federal regulation because it might be periodically inundated “is further than we choose to go.” That decision left open the question whether areas that receive sufficient flooding or saturation to support plants adapted to “saturated soil conditions,” and that therefore meet the current definition of “wetlands,” 33 C.F.R. § 323.2(c) (1984), are constitutionally subject to federal jurisdiction. B. Vagueness Tull argues that the Clean Water Act regulations are unconstitutionally vague because the imprecise definition of “wetlands” makes it too difficult for landowners to determine their potential liability. We reject this argument, as have other courts. See Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 917 (5 Cir.1983); United States v. Phelps Dodge Corp., 391 F.Supp. 1181, 1187 (D.Ariz. 1975). As applied to this case, the regulatory definition of wetlands is sufficiently definite to give a person of ordinary intelligence fair notice of what conduct the Clean Water Act prohibits or requires. Cf. United States v. Harriss, 347 U.S. 612, 617-18, 74 S.Ct. 808, 811-12, 98 L.Ed. 989 (1954). III. Whether Tull Had a Right to a Jury Trial We find no merit in Tull’s claim that he had a right to a jury trial in this case. The seventh amendment right to a jury trial is limited to suits in the nature of an action existing at common law when the amendment was adopted. Atlas Roofing Co. v. Occupational Safety and Health Review Commission, 430 U.S. 442, 458, 97 S.Ct. 1261, 1270, 51 L.Ed.2d 464 (1977); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48, 57 S.Ct. 615, 629, 81 L.Ed. 893 (1937). “... Congress may constitutionally enact a statutory remedy unknown at common law, vesting factfinding in an administrative agency or others without the need for a jury trial.” Republic Industries v. Teamsters Joint Council No. 83 of Virginia Pension Fund, 718 F.2d 628, 642 (4 Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 3553, 82 L.Ed.2d 855 (1984). Tull urges that he had a right to a jury trial because the government was seeking civil penalties under the Clean Water Act. To support this argument, he points to the Second Circuit’s decision in United States v. J.B. Williams Co., Inc., 498 F.2d 414 (2 Cir.1974). The court there found a seventh amendment “right of jury trial when the United States sues ... to collect a [statutory] penalty, even though the statute is silent on the right of jury trial.” Id. at 422-23 (quoting 5 Moore, Federal Practice 1138.-31[l] at 232-33 (1971 ed.)). In so holding, the Second Circuit found guidance in several older Supreme Court cases. Thus in Hepner v. United States, 213 U.S. 103, 115, 29 S.Ct. 474, 479, 53 L.Ed. 720 (1909), the Supreme Court suggested in dictum that “[t]he defendant was, of course, entitled to have a jury summoned” where the government sued to collect a $1,000 civil penalty for violation of the Alien Immigration Act. See also United States v. Regan, 232 U.S. 37, 34 S.Ct. 213, 58 L.Ed. 494 (1914) (dictum regarding penalty under Alien Immigration Act). We reject defendant’s argument. First, we note that the Supreme Court has left open the question whether the dictum of Hepner and Regan “correctly divines the intent of the Seventh Amendment,” or whether the seventh amendment has no application to government litigation at all. Atlas Roofing, 430 U.S. at 449 n. 6, 97 S.Ct. at 1266 n. 6. Second, even assuming that the seventh amendment applies to government litigation, the fact that the government is suing to collect statutory penalties does not require a jury trial. The Supreme Court has not gone “so far as to say that any award of monetary relief must necessarily be legal [as opposed to equitable] relief” for purposes of determining the right to a jury trial. Curtis v. Loether, 415 U.S. 189, 196, 94 S.Ct. 1005, 1009, 39 L.Ed.2d 260 (1974). In Regan (as in Hepner), the monetary relief sought was a penalty of a set amount, and the Supreme Court analogized the suit to “a civil action of debt.” Regan, 232 U.S. at 47, 34 S.Ct. at 216. Here the penalties are within the district court’s discretion; the government is not suing to collect a penalty analogous to a remedy at law, but is asking the district court to exercise statutorily conferred equitable power in determining the amount of the fine. Nor are the penalties simply equivalent to punitive damages in actions at law. Here the assessment of penalties intertwines with the imposition of traditional equitable relief. The district court fashions a “package” of remedies, one part of the package affecting assessment of the others. This combined relief serves several goals, including environmental preservation and fairness to third party property buyers as well as deterrence. In such circumstances, the seventh amendment is inapplicable. See Jones & Laughlin, 301 U.S. at 48-49, 57 S.Ct. at 629-630, quoted in Atlas Roofing, 430 U.S. at 453, 97 S.Ct. at 1268 (seventh amendment inapplicable where “recovery of money damages is an incident to [nonlegal] relief even though damages might have been recovered in an action at law,” since equity courts historically granted such monetary relief). IV. Whether the Government is Equitably Estopped from Suing Tull Tull argues that the government is equitably estopped from obtaining relief because Corps personnel misled him into believing that his filling activities were lawful and did not require a permit. The district court emphatically rejected this argument, finding that nothing the government did or failed to do misled the defendant. We cannot say this finding was clearly erroneous, and with no showing that the government misled Tull the equitable estoppel argument certainly must fail. See Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51,-, 104 S.Ct. 2218, 2223-24, 81 L.Ed.2d 42, 51-52 (1984) (invoking equitable estoppel against government requires at least a showing that party reasonably relied on government’s misleading conduct). We therefore need not reach the issue whether misleading by silence or inaction, the most Tull alleges here, could ever justify invoking the equitable estoppel doctrine against the government. Cf. id., 467 U.S. at ——, 104 S.Ct. at 2224, 81 L.Ed.2d at 52 (whether doctrine applicable to government at all an open question); United States v. Harvey, 661 F.2d 767, 773-74 (9 Cir.1981), cert. denied, 459 U.S. 833, 103 S.Ct. 74, 74 L.Ed.2d 72 (1982) (invocation of doctrine against government requires affirmative misconduct). Tull complains in particular about a Corps of Engineers’ visit to the Ocean Breeze property in July of 1976. An engineer told him not to place fill in one part of his property; Tull claims this instruction led him to believe that filling without a permit anywhere else on his property would be proper. Yet several witnesses testified that the purpose of the Corps’ visit was to determine whether ongoing work required filling permits. At the time of the visit, Tull did not discuss the future development of the property at issue here with the Corps engineers; indeed, he did not yet even have a development plan. Thus, there did not even exist plans that the engineers could have tacitly endorsed. Further, Tull’s earlier disputes with the Corps over the filling of property meant he could not have been ignorant of the general requirement of obtaining a permit to fill wetlands. Tull further complains that the government misled him by waiting several years before bringing this suit. The district court found that any such delay did not mislead Tull. The government sued Tull unsuccessfully in 1975, issued a cease and desist order against his filling Eel Creek in 1976, and also obtained an injunction against his filling at Mire Pond. Given such circumstances, we cannot overturn the district court’s finding that Tull was in no way misled by the government’s failure to bring even more lawsuits against him. V. Navigability of Fowling Gut Extended Tull argues that he did not violate the Rivers and Harbors Act by placing fill in Fowling Gut Extended, since no credible evidence supported the district court’s finding that the waterway was navigable. We disagree. The district court had before it the testimony of an oyster inspector who testified that Fowling Gut Extended was subject to the ebb and flow of the tide. The Corps’ regulations in effect at the time Tull filled the waterway defined navigable waters to include those “subject to tidal action.” 33 C.F.R. § 209.260(k)(2) (1975), superseded by 33 C.F.R. § 329.4 (1984) (includes waters “subject to the ebb and flow of the tide”). See also 33 C.F.R. § 329.8(a) (1984) (“canal or other artificial waterbody that is subject to the ebb and flow of the tide is also a navigable water of the United States”). The district court therefore did not err in finding Fowling Gut Extended navigable. We do not think that Tull’s other contentions merit discussion. AFFIRMED. . Also known as the Federal Water Pollution Control Act. . Tull made a fifth amendment taking argument in the district court. It, however, rejected the argument on ripeness grounds, and Tull has not reasserted this argument on appeal. A Sixth Circuit panel, we recognize, has narrowly construed the Clean Water Act’s regulatory definition of wetlands to avoid what it sees as "a very real taking problem.” United States v. Riverside Bayview Homes, Inc., 729 F.2d 391, 398 (6 Cir. 1984), cert. granted, - U.S. ——, 105 S.Ct. 1166, 84 L.Ed.2d 318 (1985). Even Riverside's narrow construction, however, encompasses the swamp, marsh or bog adjacent to navigable waters at issue here. 729 F.2d at 398. Riverside would exclude only "inland low-lying areas” from Corps jurisdiction. Id. at 398, 401. . This regulation, now superseded, provided: Corps jurisdiction would extend to all coastal waters subject to the ebb and flow of the tide shoreward to their mean high water mark ... and also to all wetlands, mudflats, swamps and similar areas which are contiguous or adjacent to coastal waters. This would include wetlands periodically inundated by saline or brackish waters that are characterized by the presence of salt water vegetation capable of growth and reproduction____ . Thus the fine for filling Fowling Gut Extended was offered as an alternative to the injunctive remedy of restoring that waterbody to its previous condition. . The dissent, in asserting that the government should be estopped, adopts Tull's argument that he followed the Corps’ 1976 directions in placing fill on his property, while the Corps stood by and watched in silence until the government brought suit in 1981. The record establishes, however, that aerial photographs of new filling on Tull’s property in the summer of 1978 revealed possible statutory violations. Corps personnel then asked for an on-site meeting "to determine if the shoreline work being done on Mr. Tull’s property just south of Beebe Road could be in our regulatory jurisdiction.” Tull's lawyer responded by letter that “no work is being done on the property owned by [Tull] adjoining Fowling Gut at Chincoteague Island," and that the Corps’ request for an on-site meeting was therefore denied. A Corps scientist testified that at that time the Corps had information indicating that Tull had violated the law with respect to Ocean Breeze, but that it took no action because it lacked sufficient specific data on which to base a cease and desist order. Its effort to get further information by examining the property was thwarted. Given this evidence, Tull cannot argue meritoriously that he was the victim of innocent reliance, or that following the 1976 visit he had no further word from the Corps that they had any question about the propriety of his activities.

United States v. Tull

WARRINER, District Judge, dissenting: Having had unhappy experiences with the United States Corps of Engineers respecting alleged encroachment by him on wetlands and navigable waters, appellant Tull hired a lawyer and a civil engineer to review proposed filling of lowlands owned by Tull near Chincoteague. With assurance from the lawyer and the engineer that his proposals would not cause damage to wetlands or navigable waters, he then called in representatives of the Corps of Engineers and took them on a tour of the sites explaining the nature of the work he proposed. During the tour he was advised by an appropriate official of the Corps that a certain proposal could not be accomplished without damage to wetlands. This oral directive was confirmed by letter within a few days. Tull strictly adhered to this direction and to another minor direction given by an official of the Corps on the scene. He proceeded with his other plans in accordance with the advice given him by his lawyer and his civil engineer. During the next five years while the work was in progress the Corps of Engineers kept the site under surveillance both on the ground and by aerial observation and photographs. They observed over many months plaintiff engaging in the fill activity which he had pointed out to them on the ground on the day of their visit. After plaintiff had completed his work, with no further word from the Corps of Engineers that they had any question about the propriety of his activities, and after plaintiff had sold off lots in the filled area to third parties, the Corps of Engineers in the name of the United States filed this action against Tull seeking injunctive relief and civil penalties for conducting his activities without a permit. Tull, not the Corps, was fined $75,000. Additionally, extensive and extremely expensive site restoration was required of him. Tull appeals urging that he was mistreated by the Corps of Engineers. He points to the equitable doctrine of estoppel. The Supreme Court has consistently left open the possibility of estoppel against the government. Though the Supreme Court found in Montana v. Kennedy, 366 U.S. 308, 314-15, 81 S.Ct. 1336, 1340-41, 6 L.Ed.2d 313 (1961), that inaccurate but “well-meant” advice given by a consular officer fell “far short of misconduct such as might prevent the United States” from carrying forward with legal action, the door to estoppel was left ajar. The Court found that the sort of “affirmative misconduct” adverted to but not found in Montana, supra, also was not present in INS v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 21, 38 L.Ed.2d 7 (1973). In that case the alleged misconduct of the government was in not aggressively publicizing immigration rights created by Act of Congress and in not stationing an authorized naturalization official in the Philippines during the statutory period following World War II. Still, the legal possibility of estoppel against the government was recognized. Id. A government agent who failed to respond accurately to a citizen’s verbal question in a fifteen minute interview was found to have not acted with sufficient “affirmative misconduct” to estop the government. The instructions he failed to comply with were contained in a claims manual, a volume containing help and guidance but not carrying the weight of law. Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981). Yet the possibility of a government agent conducting the government’s business in a sufficiently prejudicial manner as to estop the government from future legal action was again left open. Id. at 790, 101 S.Ct. at 1471. Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984), involved a provider of health care that had relied on policy determinations made by a fiscal intermediary. The health care provider, experienced with government financial programs, knew or should have known to verify with the applicable governmental department the information received. Thus the inaccuracy of the information given did not estop the government in legal action. Id., 104 S.Ct., at 2223. All of these denials of estoppel left open its possibility. The case at bar can be distinguished from each on its facts. Schweiker and Montana were both cases of brief, one-time encounters with officials who gave cryptic, verbal advice. By contrast, Mr. Tull, after extensive research by his own agents, initiated a tour and inspection of his property with the specific intent of gaining a ruling from a team of officials from the Corps of Engineers who possessed the requisite knowledge. The Corps continued to monitor the construction site for the next five years. Mr. Tull is not in the position of Mr. Hibi. He did not ask the government to expend strenuous efforts to inform him of the law. Tull hired a lawyer and an engineer and went to the trouble of arranging an inspection to confirm his understanding of the law; and then complied with it as presented to him. He did not ask his questions of an intermediary as did Community Health Services of Crawford City, Inc. He went straight to the proper governmental authority in his area. The Supreme Court has stated that for estoppel to lie against the government the private party must at least show “the traditional elements of an estoppel.” Heckler, 104 S.Ct. at 2224. It explicitly included reasonable reliance. Id. at 2223. Summarizing the traditional notion of equitable estoppel the Ninth Circuit identified four essential elements. They are: “(1) The party to be estopped must know the facts; (2) He must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) The latter must be ignorant of the true facts (sic.); and (4) He must rely on the former’s conduct to his injury.” California State Board of Equalization v. Coast Radio Products, 228 F.2d 520, 525 (9th Cir.1955). Modifying element (4) to read “he must reasonably rely on the former’s conduct to his injury” yields a test well within the Supreme Court’s standard. Heckler, 104 S.Ct. at 2223, 2224. The case at bar fits all the elements of equitable estoppel. Respecting element one, the Corps certainly knew the facts. Its agents were invited to Mr. Tull’s property as work commenced, toured the property, and received a description of the intended work. Though firm drawings were not available for review, the object of the inspection as presented by Mr. Tull was to reach an understanding of the limits of the Corps’ interest in the property. Certainly the actions of the inspection party in touring all the properties and not just one site reinforces this. It is undisputed that Tull did no more than he said he planned to do and that the work found by the Corps to be violative of the law was the planned work — obvious to the Corps over the course of five years’ surveillance. It had to have been obvious to the Corps many times between July 1976 when the inspection was conducted and July 1981 when the complaint was filed that Mr. Tull was engaged in the work he had explained to the Corps officials. The Corps’ agents conducted follow-up inspections, wrote internal memos, and recorded work progress with aerial photography. All attests to their knowledge. As to element two, if Mr. Tull didn’t have the right to believe and rely upon the Corps officials then there simply can’t be a case where element two is met. He did what could reasonably be expected to make it clear that he intended to build pursuant to his own experts’ opinions unless the Corps raised some objection. The Corps did not object to the purpose of the requested inspection. Significantly, wholly consonant with Mr. Tull’s stated expectations and consistent with his purpose, Corps officials forbade certain construction work. Mr. Tull fully complied with the Corps’ instructions. The Corps should not be permitted to pretend that it didn’t know what was intended by Mr. Tull and by the Corps officials when the inspection was requested and conducted. The “true fact” of which Mr. Tull was ignorant was that the measures he had taken to ascertain the Corps’ interest in his property were inadequate. He believed he had achieved an understanding with the appropriate officials of the Corps of Engineers. He was ignorant of, and reasonably so, the “true facts” as purported five years later by the Corps that he had only obtained a ruling on one particular piece of the whole work. Finally, I differ with the majority and find clear error in the trial court’s ruling that no action or inaction by the Corps misled Mr. Tull. I would find that he did reasonably rely on the combination of actions and inactions by the Corps. Indeed, until I read the holding in this case I would have held it would be unreasonable for Mr. Tull not to rely on the United States Army Corps of Engineers. Both I, and Mr. Tull, know better now. As evidenced by the outcome of the trial he certainly relied to his injury. Were this a case between two private parties the inquiry into estoppel could end here. I think Tull would win hands down. However, as reviewed earlier, estoppel against the government is justifiably eyed warily. Justice Rehnquist wrote a concurring opinion in Heckler, 104 S.Ct. at 2228, to refute any “impression of hospitality towards claims of estoppel against the government” that the majority’s opinion might have left. He concluded that “our cases have left open the possibility of estoppel against the government only in a rather narrow possible range of circumstances.” Id. I believe the circumstances of this case lie within that narrow range. The actions and nonactions of the government agents involved were so far removed from effectively carrying out their duty as to show active efforts to mislead Mr. Tull to his detriment. They were “out to get him.” The record supports a suspicion of intentional malice. In possession of all the facts the Corps waited until after lots were sold, when the most harm could be done, to file suit. With full authority to do so, the Corps refused to issue a cease and desist order as their controlling regulation, carrying the weight of law, required. Fed.Reg. Yol. 40, No. 144, 25 July 1975, p. 31330, Addendum “C.” The guardians of the nation’s wetlands eschewed diligence for trickery. Although typically inaction on the part of the government would not justify reliance, or bring about estoppel, the inaction consequent upon the inspection tour, the research done by Mr. Tull’s agents, and the surveillance, permit Mr. Tull reasonably to conclude approval. Hence, I am not proposing to “punish” the Corps for mis-, mal- or nonfeasance by allowing Mr. Tull to break the law. Rather, I urge the application of estoppel on behalf of a citizen who made a reasonable and good faith effort to discover the law and how it applied to him and has been severely damaged by reasonably relying on the combination of actions and nonactions of government officials, the latter in gross neglect of duty. The Ninth Circuit found in Sun II Yoo v. Immigration and Naturalization Service, 534 F.2d 1325 (1976), “affirmative misconduct” on the part of the government sufficient to estop it in relation to an alien who had acted in good faith. The Court found no acceptable reason for a delay of ten months in processing information provided by the alien. The delay made Mr. Yoo ineligible for a visa' because of a change in the law that occurred while the INS procrastinated unjustifiably on his application. Mr. Yoo was fully eligible under the law as it stood when he applied. The Ninth Circuit found that “[b]y its maneuvers ..., the INS [had] ensnared petitioner in a ‘Catch 22’ predicament; the Service’s conduct is analogous to the entrapment of a criminal defendant and, as such, cannot be countenanced.” Id. at 1328-29. Mr. Tull’s case is even more easily a source of offended decency than Mr. Yoo’s. The actions of the Army Corps of Engineers gives the appearance of lying in wait with a calculating eye for five years after first lulling him into a reasonable view that his activities were acceptable; and after he invested time, money, and effort in completing what he thought to be suitable residential lots, the Corps with a bulging portfolio of evidence descended on him. For the foregoing reasons I would apply estoppel and reverse the trial court’s decision. Turning now to the question of defendant’s right to a jury trial, I disagree with the majority and find error in the trial court’s denial of Mr. Tull’s demand for trial by jury. 33 U.S.C. § 1319(b) authorizes the government to bring civil actions in a federal district court to obtain appropriate relief, including typical equity relief, for any violation of specified sections of the Clean Water Act, 33 U.S.C. §§ 1251, et seq. In addition, Section 1319(d) provides for the imposition of a fine under the denomination of a civil penalty. Under subsection (d) the trial court imposed a $75,000 civil penalty without the benefit of a jury’s judgment and with this I disagree. The Supreme Court held in Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), that the collection of $250 in punitive damages pursuant to a statutory right created by § 812 of the Civil Rights Act of 1968, 42 U.S.C. § 3612, was an action at law that implicated Seventh Amendment rights to trial by jury. The Court specifically rejected the argument that the Seventh Amendment was not applicable to new causes of action created by congressional enactment and reiterated its ruling that the Seventh Amendment applies to causes of action based on statutes. Id. at 193, 94 S.Ct. at 1007, citing Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477, 82 S.Ct. 894, 899, 8 L.Ed.2d 44 (1962). “Whatever doubt may have existed should now be dispelled. The Seventh Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies.” Id., 415 U.S., at 194, 94 S.Ct. at 1008. Legal rights are those recognizable at law as opposed to equitable rights which are recognizable only at equity. Ballentine’s Law Dictionary 720 and 411 (3d Ed. 1969). Explaining the meaning of NLRB v. Jones & Laughlin Steel Cory., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), the Curtis court declared that Jones v. Laughlin gave no help to a party attempting to block a jury trial when statutory rights are at issue. “Jones & Laughlin merely stands for the proposition that the Seventh Amendment is generally inapplicable in administrative proceedings, when jury trials would be incompatible with the whole concept of administrative adjudication and would substantially interfere with the NLRB’s role in a statutory scheme.” Curtis, 415 U.S., at 195, 94 S.Ct. at 1008. The Court then discusses similar reasons for rejecting Seventh Amendment rights in bankruptcy proceedings and continues “but when Congress provides for enforcement of statutory rights in an ordinary civil action in the district courts, where there is obviously no functional justification for denying the jury trial right, a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law.” Id. Continuing, the Supreme Court found punitive damages sued for under § 812 of the Civil Rights Act of 1968 to be “legal rights.” “Damage action under the statute sounds basically in tort — the statutory remedy defines a new legal duty____” Id. “... this cause of action is analogous to a number of tort, actions recognized at common law. More important, the relief sought here — actual and punitive damages — is a traditional form of relief offered in the courts of law.” Id. at 195-6, 94 S.Ct. at 1008-9. As noted, and relied on, by the majority, the Court then states that all monetary relief is not legal relief. But the Court continued by “sharply” contrasting an equitable award of backpay in a Title VII case “with § 812’s simple authorization of actual and punitive damages.” Id. at 197, 94 S.Ct. at 1010. Further analyzing damages arising from statutory rights the Court reasoned, “nor is there any sense in which the award here can be viewed as requiring the defendant to disgorge funds wrongfully withheld from the plaintiff. Whatever may be the merit of the ‘equitable’ characterization in Title VII cases, there is surely no basis for characterizing the award of compensatory and punitive damages here as equitable relief.” Id. I place no stock in the difference in nomenclature between the “civil penalty” of the present case and the “punitive damages” in Curtis. Both arise from a right created by statute. Both deprive defendant of money by action of court as a result of a breach of the civil law. Both are remedies typically found at a court of law. Neither can be “viewed as requiring a defendant to disgorge funds wrongfully withheld.” In neither case is there a functional justification to deny a jury trial. The majority simply accepted the phrase from Curtis out of context, as the government invited us to do in its brief, and decided the jury question wrongly. It should be noted that both Hepner v. United States, 213 U.S. 103, 29 S.Ct. 474, 53 L.Ed. 720 (1909), and its follow-up, United States v. Regan, 232 U.S. 37, 34 S.Ct. 213, 58 L.Ed. 494 (1914), which the majority unsuccessfully seeks to distinguish, were decisions settling a debate over whether penalties in the form of so-called civil fines transformed a civil case into a criminal one. The answer was no. Neither case purports to comment on the issue at hand; whether civil penalties may be imposed under the pseudonym of “equitable relief.” Both these cases were tried before juries. The Hepner court, presupposing a jury, was concerned with making it clear that a judge could direct a verdict if it came out at trial that there were no facts in dispute. Explicitly restricting its decision to civil cases with undisputed testimony, the court said, “the defendant was, of course, entitled to have a jury summoned in this case, but that right was subject to the condition, fundamental in the conduct of civil actions, that the court may withdraw a case from the jury and direct a verdict according to the law if the evidence is uncontradicted and raises only a question of law.” Hepner, 213 U.S. at 115, 29 S.Ct. at 479. The majority observes that there was a statutory limit ($1,000) on the fine imposable in Hepner and Regan and that the fine imposable against Mr. Tull was unlimited. This, the majority argues, supports a view that the defendants in Hepner and Regan were entitled to a jury while Mr. Tull was not. One would think just the opposite would be the more persuasive argument. Surely if the Seventh Amendment protects one from a civil fine of $1,000, it should be construed to protect one from a civil fine of $75,000 or an unlimited fine. Cf. 42 U.S.C. § 1995; United States v. Martinez, 686 F.2d 334 (5th Cir.1982); Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974). Regan and Hepner, then, support Mr. Tull’s right to trial by jury. Language in these opinions which may appear to the contrary deals only with situations where there is no genuine dispute as to a material fact. A trial judge’s unlimited discretion in meting out fines and imprisonment to contemnors of his court has long been recognized as an essential element of his authority to maintain the order, respect, and dignity of the court. Indeed, the ability to punish for contempt is deemed essential to the maintenance of our courts as functioning tribunals. Precedent held that the authority to punish for contempt was so essential to the maintenance of our judicial system, the bedrock of the rule of law, that trial by jury could not be permitted to interfere with the determination of punishment by the judge. Bloom v. Illinois, 391 U.S. 194, 208, 88 S.Ct. 1477, 1485, 20 L.Ed.2d 522 (1968). Upon reviewing the need for unfettered judicial power to maintain the dignity of the court against the contempt defendant’s right to a jury, the Supreme Court in Bloom opted for trial by jury. This upsetting of precedent and the recognition of the right to a jury trial despite the serious, even fundamental, considerations to the contrary, shows the strength of our Constitution’s demand that the right to trial by jury be not infringed. If in contempt proceedings the weighty considerations counseling against jury intervention are set at naught against the right to a jury trial, how much more is the strength of that right when weighed against statutory protection of wetlands. Wetlands are ecologically essential. The dignity of the courts is essential to our very freedom. Surely, if trial by jury is constitutionally demanded despite the need to maintain our court system, it is also demanded despite the need to maintain our wetlands. The majority infers that the right to jury trial is limited by a party’s ability to fit his cause into a relatively constrictive box. The majority says, “the Seventh Amendment right to a jury trial is limited to suits in the nature of an action existing at common law when the amendment was adopted.” Majority Opinion at 186. While the statement is true as far as it goes, the Supreme Court has found cause to ever expand what might be included in “the nature of an action existing at common law when the amendment was adopted.” In fact the Supreme Court has stated that “in the federal courts equity has acted only when legal remedies were inadequate, the expansion of legal remedies provided by [an act of Congress] and the Federal Rules [of Civil Procedure] necessarily affects the scope of equity.” Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 509, 79 S.Ct. 948, 955, 3 L.Ed.2d 988 (1959). It is the equity judge’s discretion whose borders are limited by the right to a jury trial, and not the reverse as the majority would have it. See generally Wright & Miller, Federal Practice & Procedure, Federal Rules of Civil Procedure, Vol. 9, § 2302 (1971). [“If a new cause of action is created by Congress, and nothing is said about the mode of trial, the courts must look to the nearest historical analogy to decide whether there is a right to a jury.” “[A] series of [Supreme Court] cases decided since 1959 ... recognize that there is a strong federal policy favoring trial by jury of issues of fact. This policy by itself may provide the answer in cases in which the historical test gives no clear guidance.” “At a minimum the Beacon Theatres and Dairy Queen cases lend impetus toward finding a right to trial by jury in doubtful cases. It is highly probable that they do much more than this.” “In its decisions since 1962 the Court has shown no inclination to retreat from this judgment that jury trial is now more widely available than it had been in the past.”] [footnotes omitted.] 33 U.S.C. § 1319(b) provides for all usual equitable remedies to be available to the government because there is no good substitute for telling a polluter to cease and restore, and to do so immediately. The civil penalty of subsection (d) is another matter entirely. There simply is no justification for denying trial by jury before the imposition of a fine that could devastate a person of even moderate means and could seriously damage all but a small percentage of the citizenry of this nation. Most of us just aren’t rich enough to pay a $75,000 fine without flinching. Before having such punishment inflicted our Constitution and our heritage demands that the facts be presented to a jury of our peers. Since the remedies sought by the government were both legal and equitable, and the district court may hear both at one time, Fed.R.Civ.P. 1, 2, 18, and the findings of fact necessary to determine what civil penalties, if any, would be adjudged are the same as those to be decided for the equitable remedies sought, the case should have been heard before a jury upon the defendant’s demand. Beacon Theatres, Inc., 359 U.S. at 506-510, 79 S.Ct. at 954-957. Therefore, on the issue of jury trial alone, the case should be reversed and remanded for a new trial. On the issue of equitable estoppel the case should be reversed and dismissed. I respectfully dissent. . See also United States v. Georgia-Pacific Co., 421 F.2d 92, 96 fn. 4 (9th Cir.1970) and 28 AmJur.2d, Estoppel and Waiver, § 27 (1966). . An Arizona district court applied the “affirmative misconduct” interpretation of Sun II Yoo to a case in which a lawyer was hired by the government, a hiring freeze was put into effect, the lawyer was informed upon inquiry the freeze would not affect his position, the lawyer closed out his private practice in reliance on the assurance and was then denied the job. The district court applied estoppel against the government. Beacom v. Equal Employment Opportunity Commission, 500 F.Supp. 428 (D.Ariz. 1980). . "[I]n our judgment, when serious punishment for contempt is contemplated, rejecting a demand for jury trial cannot be squared with the Constitution or justified by considerations of efficiency or the desirability of vindicating the authority of the court.” “We do not deny that serious punishment must sometimes be imposed for contempt, but we reject the contention that such punishment must be imposed without the right to jury trial.” "When a serious contempt is at issue, considerations of efficiency must give way to the more fundamental interest of ensuring the even-handed exercise of judicial power.” Bloom, 391 U.S. at 208, 209, 88 S.Ct. at 1485, 1486. . If the instant action be considered civil, the Seventh Amendment requires a jury. If, despite Hepner, supra, the imposition of a "civil penalty” of $75,000 be considered criminal, the Sixth Amendment requires a jury.

Avoyelles Sportsmen's League, Inc. v. Marsh

RANDALL, Circuit Judge: This is an appeal from a district court judgment that enjoined the private defendants from any additional clearing, except by permit under 33 U.S.C. § 1344 (Supp. V 1981), of certain lands determined by the district court to be wetlands. The federal defendants contend that the district court' should have reviewed the Environmental Protection Agency’s (“EPA”) final wetlands determination (attached as an appendix to this opinion) on the basis of the administrative record, and that the court erred in adopting its own wetlands determination instead of reviewing the agency’s determination under the arbitrary and capricious standard. The federal defendants also dispute the district court’s conclusion that the mere removal of vegetation from wetlands constitutes a discharge of a pollutant under section 301(a) of the Clean Water Act (“CWA”), 33 U.S.C. § 1311(a) (1976). The private defendants contest the validity of the district court’s determination that approximately ninety percent of their land is a wetland, as well as the court’s conclusion that their landclearing activities fall under the CWA’s prohibition on the discharge of pollutants into waters of the United States. For the reasons set forth below, to the extent that the district court’s decision that ninety percent of the Lake Long Tract is a wetland is inconsistent with the EPA’s determination, the decision of the district court is reversed. The court’s determination that the private defendants’ actual landclearing activities require permits is affirmed. I. FACTUAL AND PROCEDURAL BACKGROUND. This case concerns an approximately 20,-000 acre tract of land (the “Lake Long Tract”) in Avoyelles Parish, Louisiana. The tract lies within the Bayou Natchitoches basin, an area of approximately 140,000 acres, which, along with the Ouachita, Black and Tensas river basins, makes up the Red River backwater area. The Bayou Natchitoches basin is subject to flooding during the spring months, and it experiences an average rainfall of sixty inches per year. Much of the basin had been cleared of forest before the private defendants began their landclearing activities, but 80,000 acres were still forested. The Lake Long Tract made up a quarter of this forested area. The topography of the tract itself is uneven, resulting in some areas with permanent water impoundments and other drier areas that support a variety of plant species. The private defendants own the Lake Long Tract. They decided that the land could be put to agricultural use, specifically soybean production. Consequently, they began a program of large-scale deforestation in June of 1978. Using bulldozers with shearing blades that “floated” along the ground, the defendants cut the timber and vegetation at or just above ground level. The trees were then raked into windrows, burned, and the stumps and ashes were disced into the ground by other machinery. The shearing and raking caused some leveling of the tract, and the defendants dug one drainage ditch. On August 25, 1978, the Vicksburg District of the Army Corps of Engineers ordered defendant Prevot to halt his activities pending a wetlands determination by the Corps. Thereafter, Dr. Donald G. Rhodes, an expert consultant employed by the Corps, undertook a comprehensive vegetative mapping of the Lake Long Tract and determined that thirty-five percent of it was a wetland. In October, 1978, the Fish and Wildlife Service wrote a letter to the Corps stating that the Service believed that the entire tract was a wetland. After Dr. Rhodes had made his determination, the landowners resumed their activities on the portion of the tract that the Corps had not designated as a wetland. On November 8, 1978, the plaintiffs brought this citizens’ suit against a number of Corps and EPA officials, as well as against the private landowners. The plaintiffs claimed, inter alia, that the landclearing activities would result in the discharge of dredged and fill material into the waters of the United States in violation of sections 301(a) and 404 of the CWA, 33 U.S.C. §§ 1311, 1344 (1976 & Supp. V 1981), and also result in the discharge of pollutants into the waters of the United States in violation of section 402 of the CWA, 33 U.S.C. § 1342 (1976 & Supp. V 1981). The plaintiffs requested a declaration that the tract was a wetland within the scope of the CWA, that the private defendants could not engage in their landclearing activities without obtaining a permit from the EPA or the Corps, and that the federal defendants had failed to exercise their “mandatory duty” to designate the tract a wetland and to order the private defendants to cease and desist from discharging pollutants and dredged materials. The plaintiffs also sought injunctive relief against the federal defendants to require them to exercise their jurisdiction over the property and to issue cease-and-desist orders until the private defendants obtained the requisite permits. The district court immediately issued a temporary restraining order, preventing the private defendants from engaging in land-clearing activities pending the court’s action on the plaintiffs’ motion for a preliminary injunction. On January 17, 1979, the district court granted the plaintiffs' motion for a preliminary injunction and ordered the federal defendants to prepare a final wetlands determination within sixty days. All of the private parties were to have the opportunity to participate in the administrative proceedings, and the federal defendants were to file a preliminary report within forty-five days. The court allowed the private defendants to engage in normal cultivation on the more than 10,000 acres that had been cleared, but ordered them to apply for a permit with respect to the area already designated by the government as a wetland and enjoined them for sixty days from engaging in landclearing activities on the remainder of the tract. The parties complied with the court’s preliminary order, and the EPA submitted its final wetlands determination on March 26, 1979. After examining the vegetation, soil conditions, and hydrology of the tract, the EPA concluded that approximately eighty percent of the land was a wetland. In a brief final paragraph, the EPA also offered its views of the types of activities that would require a section 404 permit. At the private defendants’ request, the district court agreed to bifurcate the consideration of the two major issues in the case: (1) how much of the Lake Long Tract was a wetland, and (2) which activities required a section 404 permit. After extensive trials on both issues, the court decided that a section 404 permit was required for the landclearing activities and that over ninety percent of' the Lake Long Tract was a wetland. The court then enjoined the private defendants from engaging in any additional landclearing activities, without a section 404 permit, on the land that the court had determined to be a wetland, other than the land already cleared. The defendants timely appealed. 11. THE WETLANDS DETERMINATION. The procedural posture of this case is, to say the least, unusual. Issues were raised by the parties at one stage of the litigation only to be forgotten or ignored by both the parties and the court at a later stage in the proceedings. Indeed, as in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 540, 98 S.Ct. 1197, 1210, 55 L.Ed.2d 460 (1978), the parties in this litigation have “changed positions as nimbly as if dancing a quadrille.” In deciding to give the federal defendants an opportunity to make a final wetlands determination, the district court recognized that the federal defendants bore the “primary responsibility” for the determination of which lands were wetlands: But these matters often come up to a court in the nature of a review of a ruling made by a Governmental agency. In this instance one of the primary requests for relief made by the plaintiffs was that the agencies be directed to take up this matter of delineation of wetlands, the definition of what are wetlands, and then the enforcing of their order after it is so defined. Also, coupled with that was a prayer more directly to the merits; that is, that the Court itself makes such definitions and defines them. This is something which does not come up every day, and Congress has burdened and designated certain Government agencies with the responsibility for doing just what the prayer in this petition requests .... Whatever the reason, the matter of wetlands in this area, the definition of what is wetlands in that area is not now definite.... [B]asically speaking, since this is a responsibility which Congress has designated the Corps and two other Government agencies to accomplish, it is their primary responsibility and they have the expertise to handle the question. And since in just about all cases that the Court has come into contact with, these cases have been cases in which the Court has the benefit of the consideration given by the agencies and is not called upon to be the agency of first impression, or to use its own initiative in making a definition or enforcing it. It has been asked to review a definition made by persons who are experts in that field and have accumulated expert testimony. ... [T]he Court ordinarily has the benefit of this consideration. And I feel that the Court in this instance should also have the benefit of this consideration, if it is possible to do so. Preliminary Injunction Hearing Transcript at 34r-36. After asking the federal agencies to use their expertise in making a final wetlands determination, however, the court proceeded to conduct a de novo trial on the wetlands issue and to substitute its judgment for the EPA’s, without any explanation in its opinion of why it had found it necessary to go outside of the administrative record or of the standard that it was using to review the EPA’s determination. Thus, while it may not be a sea that we have all been cast adrift upon, we have nevertheless been cast adrift. The federal defendants maintain that the court’s de novo review of the EPA’s final wetlands determination was inappropriate. They contend that the district court should have reviewed the agency’s determination on the basis of the administrative record, and that the agency’s determination should have been upheld as long as it was not “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(B) (1976). We agree with the federal defendants that the district court’s wetlands determination must be set aside because the court applied the wrong standard in reviewing the agency’s determination. A. Standard of Review. Since the Clean Water Act does not set forth the standards for reviewing the EPA’s or the Corps’ decisions, we look to the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq. (1976), for guidance. See Save the Bay, Inc. v. Administrator of the EPA, 556 F.2d 1282 (5th Cir.1977); Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692 (D.C.Cir.1975). In general, the APA provides that a court shall set aside agency findings, conclusions, and actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or that fail to meet statutory, procedural or constitutional requirements. 5 U.S.C. §§ 706(2)(A), (B), (C), (D). This standard of review is highly deferential. A final agency decision is “entitled to a presumption of regularity.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). While the court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment,” and while “this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one.” Id. at 416, 91 S.Ct. at 824. In Overton Park, the Supreme Court stated unequivocally that the “court is not empowered to substitute its judgment for that of the agency.” Id.; accord Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 290, 95 S.Ct. 438, 442, 444, 42 L.Ed.2d 447 (1974); Louisiana Environmental Society, Inc. v. Dole, 707 F.2d 116, 118-19 (5th Cir.1983); City of Houston v. FAA, 679 F.2d 1184, 1190 (5th Cir.1982). In Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir.) (en banc), cert, denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976), the Court of Appeals for the District of Columbia explained the boundaries of a court’s role in reviewing an agency decision under the arbitrary and capricious standard. The Ethyl court directed reviewing courts to “immerse” themselves in the evidence in the administrative record in order to determine whether the “agency decision was rational and based on consideration of the relevant factors.” 541 F.2d at 36 (citing Overton Park). The court warned, however, that this effort to understand the evidence must be performed with a “conscientious awareness of the limited nature” of the court’s function and the need to defer to the agency’s expertise: The enforced education into the intricacies of the problem before the agency is not designed to enable the court to become a superagency that can supplant the agency’s expert decision-maker. To the contrary, the court must give due deference to the agency’s ability to rely on its own developed expertise. . .. Thus, after our careful study of the record, we must take a step back from the agency decision. We must look at the decision not as the chemist, biologist or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality. Id. (citations and footnotes omitted). The basis for a court’s review of an agency decision is subject to narrow limitations. Where an agency’s decision is based on an administrative record, the decision should be reviewed in light of that record. Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973); accord Louisiana Environmental Society, supra. If the agency decision is not sustainable on the basis of the administrative record, then “the matter should be remanded to [the agency] for further consideration.” Camp, 411 U.S. at 143, 93 S.Ct. at 1244 (emphasis added); accord Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U.S. 519, 549, 98 S.Ct. 1197, 1214, 55 L.Ed.2d 460 (1978). In “certain narrow, specifically limited situations,” agency action may also be set aside if it is not supported by “substantial evidence,” 5 U.S.C. § 706(2)(E), or, in “other equally narrow circumstances,” a court may engage in de novo review of the action and set it aside if it is “unwarranted by the facts”, 5 U.S.C. § 706(2)(F). Overton Park, 401 U.S. at 414, 91 S.Ct. at 822. De novo review under section 706(2)(F) is authorized only “when the action is adjudicatory in nature and the agency factfinding procedures are inadequate,” or “when issues that were not raised before the agency are raised in a proceeding to enforce nonadjudicatory agency action.” Overton Park, 401 U.S. at 415, 91 S.Ct. at 823. No one contends that the substantial evidence test applies to this case, nor is there any indication that de novo review was authorized by the presence of either of the circumstances mentioned in Overton Park. Had this case commenced as a challenge to the Corps’ decision to grant or deny a section 404 dredge-and-fill permit, the district court would clearly have been expected to review the agency’s decision under the arbitrary and capricious standard on the basis of the administrative record. See Buttrey v. United States, 690 F.2d 1170, 1183-85 (5th Cir.1982), cert, denied, - U.S. -, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983) (Corps’ denial of permit reviewed on administrative record under arbitrary and capricious standard); Joseph G. Moretti, Inc. v. Hoffman, 526 F.2d 1311, 1312 (5th Cir.1976) (discovery not improperly curtailed because challenge to Corps’ denial of permit must be reviewed on basis of administrative record; Corps’ decision was not arbitrary and capricious); Di Vosta Rentals, Inc. v. Lee, 488 F.2d 674, 678-79 (5th Cir. 1973), cert, denied, 416 U.S. 984, 94 S.Ct. 2387, 40 L.Ed.2d 761 (1974) (court’s review of Corps’ permit decision is limited to whether that decision is arbitrary and capricious in light of administrative record). The plaintiffs argue that the court’s de novo review of the final wetlands determination was appropriate in this case because the EPA’s determination was a jurisdictional decision. We disagree. This is not a case where the parties have challenged the federal agency’s jurisdiction to assert any authority over the tract. The landowners have conceded that thirty-five percent of the tract is a wetland subject to the federal defendants’ regulatory jurisdiction under the CWA. We are not confronted with a situation where the court must determine whether the property falls under the agency’s jurisdiction at all before it may determine whether the exercise of the agency’s jurisdiction is appropriate. See, e.g., United States v. Lee Wood Contracting, Inc., 529 F.Supp. 119 (E.D.Mich.1981) (enforcement action holding that land is “neighboring wetland” within Corps’ jurisdiction); Parkview Corp. v. Department of the Army Corps of Engineers, 469 F.Supp. 217 (E.D.Wis.1979) (granting Corps’ summary judgment motion that the land is a wetland under 1974 definition within Corps’ jurisdiction); P.F.Z. Properties, Inc. v. Train, 393 F.Supp. 1370 (D.D.C.1975) (holding that Corps had jurisdiction over proposed building site). The question in this case is the extent, not the existence, of agency jurisdiction. Since there is no assertion that the EPA’s jurisdiction is conspicuously lacking, its findings with respect to' the extent of its jurisdiction must be reviewed under the same standard as any other administrative findings. See Federal Power Commission v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 331, 96 S.Ct. 579, 582, 46 L.Ed.2d 533 (1976) (commissioner’s findings reviewed under “substantial evidence” standard where existence of gas shortage formed “the factual predicate necessary to the Commission’s assertion of authority”); Buttrey, supra, 690 F.2d at 1185-86 (Corps’ determination of the extent of wetlands reviewed under arbitrary and capricious standard); cf. Deltona Corp. v. Alexander, 682 F.2d 888, 893-94 (11th Cir.1982) (upholding district court’s grant of summary judgment in Corps’ favor on jurisdictional issue because plaintiff had not exhausted administrative remedies and extent of wetlands is type of decision necessitating agency expertise). The wetlands determination is precisely the type of agency decision that is normally subject to limited judicial review. The EPA developed an extensive administrative record in making its decision; it collected reports from its own expert consultants, as well as from the parties. The determination itself, which requires an analysis of the types of vegetation, soil and water conditions that would indicate the existence of wetlands, is the kind of scientific decision normally accorded significant deference by the courts. See Deltona Corp., supra; Hercules, Inc. v. EPA, 598 F.2d 91, 106 (D.C.Cir. 1978); Ethyl, supra. De novo review would permit the courts to intrude into an area in which they have no particular competence, and the presentation of the scientific evidence at both the administrative and judicial levels of the proceeding would result in inefficiencies and delays where they are most harmful. See Sierra Club v. Sigler, 695 F.2d 957, 981 (5th Cir.1983) (noting that “protracted litigation in environmental eases can kill projects by delay”). The arbitrary and capricious standard affords the proper deference to the agency’s scientific expertise, while the requirement that a court engage in a thorough in-depth review of the administrative record to ascertain whether the agency has considered all of the relevant factors and whether the agency’s decision is rational, Overton Park, 401 U.S. at 416, 91 S.Ct. at 823-24, assures that deference to the agency does not.result in abdication of judicial responsibility. See Ethyl, supra, 541 F.2d at 36-37. At trial, the landowners objected to the EPA’s reliance on the administrative record, claiming that it was not a true administrative record because it had been “prepared by order of the court, which was not in the ordinary course of administrative proceedings.” 23 Record at 444 — 45. The administrative determination in this case is something of a hybrid since it was prepared in a sixty day period under a court order. In the absence of any indication that it was actually tainted by the nature of the proceedings, however, see Overton Park, 401 U.S. at 420, 91 S.Ct. at 825 (court may go outside of administrative record only upon showing of bad faith or improper behavior), the administrative record compiled by the agency should have served as the “focal point” for judicial review of the EPA’s final wetlands determination. See Camp, supra, 411 U.S. at 142, 93 S.Ct. at 1244; Louisiana Environmental Society, supra, 707 F.2d at 119. We hold that the district court erred in substituting its own wetlands determination for the EPA’s instead of reviewing the agency’s decision, as supported by the administrative record, under the arbitrary and capricious standard. Under different circumstances, we might end our review of the wetlands determination here and remand to the district court for review of the agency decision under the appropriate standard. This litigation has, however, already gone on long enough, particularly because it involves the type of project that may be killed by the delay. See Sierra Club, supra. Because the nature of the dispute over the EPA’s wetlands determination is primarily a legal one, subject to our own independent review, and because the reasonableness of the EPA’s decision turns on an analysis of documentary evidence, rather than on the credibility of witnesses appearing before a trial judge, we do not believe that anything could happen in the district court on remand that would change our view of whether the EPA’s determination was arbitrary and capricious. Accordingly, we have decided to review the agency’s determination ourselves. See Sierra Club, supra, 695 F.2d at 981; Di Vosta, supra, 488 F.2d at 679. B. Methodology. The private defendants claim that the EPA’s decision to examine additional species of vegetation, as well as the soil and hydrology of the tract, in making its wetlands determination constituted rule-making. Emphasizing the substantial difference between the Vicksburg District consultant’s methodology and determination and the EPA’s, and the probable impact of this change in methodology throughout the State of Louisiana, the landowners contend that the agencies could not make such a drastic change in their methodology without complying with the notice and comment procedures required by 5 U.S.C. § 553. The plaintiffs and federal defendants argue that the change in methodology was merely an interpretation of the Corps’ existing wetlands definition, 33 C.F.R. § 323.2(c) (1982), and that therefore notice and comment proceedings were not required. 5 U.S.C. § 553(b)(A) (notice and comment requirements do not apply to “interpretative rules, general statements of policy, or rules of agency organization, procedure or practice.”). All of the parties recognize that we must look beyond the label to the substance of an administrative action in order to determine whether rulemaking procedures were required. CBS, Inc. v. United States, 316 U.S. 407, 419, 62 S.Ct. 1194, 1201, 86 L.Ed. 1563 (1942). 1. Legislative Or Interpretative Rule. The APA defines the term “rule” broadly enough to include virtually every statement an agency may make, 5 U.S.C. § 551(4), but not every ruling requires the procedures set forth in section 553. While “legislative” or “substantive” rules may only be promulgated in compliance with section 553, “interpretative” rules are expressly excluded from the section. In Batterton v. Marshall, 648 F.2d 694 (D.C.Cir.1980), the District of Columbia Circuit reviewed some of the differences between the two types of rulings: Legislative rules ... grant rights, impose obligations, or produce other significant effects on private interests. They also narrowly constrict the discretion of agency officials by largely determining the issue addressed. Finally, legislative rules have substantive legal effect. 648 F.2d at 701-02 (footnotes omitted). In contrast, interpretative rules are not determinative of issues or rights addressed. They express the agency’s intended course of action, its tentative view of the meaning of a particular statutory term, or internal house-keeping measures organizing agency activities. They do not ... foreclose alternate courses of action or conclusively affect rights of private parties. Id. at 702 (footnotes omitted). Perhaps most importantly, interpretative rules are subject to more extensive judicial review than are legislative rules. Id The Batterton court admitted, however, that it would be “less than candid if [it] pretended that the labels ... neatly place particular agency actions within any particular category. Instead, the categories have ‘fuzzy perimeters’ and establish ‘no general formula.’ ” 648 F.2d at 702 (quoting Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 38 (D.C.Cir.1974); F. Cooper, Administrative Agencies and the Courts 87 (1951)); see also NLRB v. Wyman-Gordon Co., 394 U.S. 759, 770, 89 S.Ct. 1426, 1432, 22 L.Ed.2d 709 (1969) (Black, J., concurring in the result) (the line between an agency’s quasi-legislative function and its quasi-judicial function is not always clear); see generally 2 K. Davis, Administrative Law Treatise § 7 (2d ed. 1983). Further, an agency has the discretion to proceed through case-by-case adjudications and interpretative orders, rather than through the rulemaking process, for the agency will often confront special problems necessitating a flexible approach to their resolution. In SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), the Supreme Court explained: The function of filling in the interstices of the Act should be performed, as much as possible, through this quasi-legislative promulgation of rules to be applied in the future. But any rigid requirement to that effect would make the administrative process inflexible and incapable of dealing with many of the specialized problems which arise.... Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule. Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations. In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order. To insist upon one form of action to the exclusion of the other is to exalt form over necessity. 332 U.S. at 202, 67 S.Ct. at 1580; accord Viacom International, Inc. v. FCC, 672 F.2d 1034, 1042 (2d Cir.1982); Giles Lowery Stockyards, Inc. v. Department of Agriculture, 565 F.2d 321, 325 (5th Cir.1977), cert, denied, 436 U.S. 957, 98 S.Ct. 3070, 57 L.Ed.2d 1122 (1978); West v. Chafee, 560 F.2d 942, 947 (8th Cir.1977); Port Terminal Railroad Association v. United States, 551 F.2d 1336, 1345 (5th Cir.1977). In Chenery, the Supreme Court recognized: In other words, problems may arise in a case which the administrative agency could not reasonably foresee, problems which must be solved despite the absence of a relevant general rule. Or the agency may not have had sufficient experience with a particular problem to warrant rigidifying its tentative judgment into a hard and fast rule. Or the problem may be so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule. In those situations, the agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards. And the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency. 332 U.S. at 202-03, 67 S.Ct. at 1580. The critical question in any challenge to the propriety of the method used by the agency in reaching its decision is whether the decision-making procedure satisfied the underlying purpose of the APA: affording a procedure that is fair to the affected parties. Batterton, supra, 648 F.2d at 703; National Helium Corp. v. Federal Energy Administration, 569 F.2d 1137, 1146 (Temp.Emer.Ct.App.1978). We hold that under the circumstances of this case, the EPA’s wetlands methodology was not void for failure to comply with the section 553 notice and comment requirements because the methodology was an interpretative application, not an amendment of, the 1977 definition. The federal defendants’ development of the methodology appears to have been a response to the agencies’ perception that the Corps’ 1977 amendments of its regulations expanded the scope of its wetlands definition. Unlike the rules establishing fixed criteria to control the agencies’ decisions in the cases cited by the landowners, see, e.g., Batterton, supra (regulation established critical statistical variable in formula for computing unemployment rate); Pickus v. United States Board of Parole, 507 F.2d 1107 (D.C.Cir.1974) (Parole Board’s use of guidelines established specific factors for determining parole eligibility); Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir.1972) (regulation effectively repealed prior method for obtaining immigration visa); Texaco, Inc. v. Federal Power Commission, 412 F.2d 740, 741 (3d Cir.1969) (regulation required payment of interest “compounded monthly”), the federal defendants’ methodology was designed as a flexible approach to implementation of the Corps’ definition. In fact, some of the factors that the landowners object to appear to have been included to insure that the agencies did not unduly expand the definition. The methodology requires an analysis of soil and hydrology because the types of vegetation added to the agencies’ calculus may or may not be wetland indicators; thus, the analysis of soil and hydrology may narrow, as well as expand, the agencies’ jurisdiction. Final Wetlands Determination at 3, 2 Record at 375. While the landowners’ challenge to the methodology is cast in procedural terms, their underlying contention is really nothing more than a challenge to the EPA’s interpretation of the regulation. The EPA maintains that the 1977 amendments, not the methodology, expanded the Corps’ wetlands definition. The landowners contend that the amendment was purely technical and was not intended to add facultative hydrophytes to the types of vegetation that would indicate the existence of wetlands. Because the landowners view the methodology as a significant expansion — or amendment — of the 1977 definition, they contend that rulemaking was required. We proceed, therefore, to consider whether the federal defendants’ interpretation alters the regulation. 2. Vegetation Typically Adapted for Life in Saturated Soil Conditions. In reviewing the federal defendants’ interpretation, we must keep in mind that “the interpretation given [a] statute by the officers or agency charged with its administration” is entitled to substantial deference. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980) (quoting Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978)); see also Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Quarles v. St. Clair, 711 F.2d 691 at 706 (5th Cir.1983). An agency’s construction of its own regulations is entitled to even greater deference. Ford Motor, supra, 444 U.S. at 566, 100 S.Ct. at 797; Udall, supra, 380 U.S. at 16, 85 S.Ct. at 801. Regardless of whether the court would have arrived at the same interpretation, if the agency’s interpretation is reasonable the court must respect it. Udall, supra; Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1270 (5th Cir.1978). A number of factors will influence the amount of deference due in a given case. These include: the degree of scientific or technical agency expertise necessarily drawn on in reaching the interpretation, Ford Motor, supra; Kinnett, supra; “the consistency of the interpretation and the length of adherence to it, undisturbed by Congress; [and] the explicitness of the congressional grant of authority to the agency.” Quarles, supra. Evaluation of these factors requires a high degree of deference in this case. Congress has delegated substantial authority to the EPA administrator, and with respect to the dredge-and-fill permits, to the Corps, for the implementation of the CWA. See, e.g., 33 U.S.C. §§ 1311, 1314, 1342, 1362 (EPA responsible for setting effluent limitations, and water quality standards, issuing National Pollution Discharge Elimination System permits, and prescribing necessary regulations); 33 U.S.C. §§ 1344, 419 (Corps responsible for issuing dredge-and-fill permits and is authorized to prescribe regulations under Rivers and Harbors Act). See also E.I. Dupont de Nemours & Co. v. Train, 430 U.S. 112, 134, 97 S.Ct. 965, 978, 51 L.Ed.2d 204 (1977) (Supreme Court defers to EPA’s interpretation of CWA because agency is charged with administering the Act, interpretation is reasonable and supported by scholarly opinion) (quoting Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 87, 95 S.Ct. 1470, 1485-86, 43 L.Ed.2d 731 (1976) (deferring to EPA’s interpretation of Clean Air Act)). While the methodology used in this case had been recently established, the interpretation of the wetlands definition necessarily drew on the agencies’ scientific expertise. The definition concerns the scope of the CWA, and with it the scope of the federal government’s ability to control the discharge of pollutants into the waters of the United States. The EPA and the Corps were in the best position to determine precisely what property must come under federal control in order to protect the nation’s waters. The Corps’ 1975 regulations defined “fresh water wetlands” as “those areas that normally are characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction.” 42 Fed.Reg. 37128 (July 19, 1977) (emphasis added). In 1977, the Corps revised its regulations to define “wetlands” as The term “wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. 33 C.F.R. § 323.2(e) (1982) (emphasis added). The Corps explained that this revision was intended to eliminate several problems and to'achieve certain results: The reference to “periodic inundation” has been eliminated. Many interpreted that term as requiring inundation over a record period of years. Our intent under Section 404 is to regulate discharges of dredged or fill material into the aquatic system as it exists, and not as it may have existed over a record period of time. The new definition is designed to achieve this intent. It pertains to an existing wetland and requires that the area be inundated or saturated by water at a frequency and duration sufficient to support aquatic vegetation. This inundation or saturation may be caused by either surface water, ground water, or a combination of both. The use of the word “normally” in the old definition generated a great deal of confusion. The term was included in the definitions to respond to those situations in which an individual would attempt to eliminate the permit review requirements of Section 404 by destroying the aquatic vegetation, and to those areas that are not aquatic but experience an abnormal presence of aquatic vegetation. Several such instances of destruction of aquatic vegetation in order to eliminate Section 404 jurisdiction actually have occurred. However, even if this destruction occurs, the area still remains as part of the overall aquatic system intended to be protected by the Section 404 program. Conversely, the abnormal presence of aquatic vegetation in a non-aquatic area would not be sufficient to include that area within the Section 404 program. We have responded to the concern for the vagueness of the term “normally” by replacing it with the phrase “... and that under normal circumstances to [sic] support.... ” We do not intend, by this clarification, to assert jurisdiction over those areas that once were wetlands and part of an aquatic system, but which, in the past, have been transformed into dry land for various purposes. Concerns were also expressed over the types and amount of vegetation that would be required to establish a “wetland” under this definition. We have again used the term “prevalence” to distinguish from those areas that have only occasional aquatic vegetation interspersed with upland or dry land vegetation. At the same time, we have changed our description of the vegetation involved by focusing on vegetation “typically adapted for life in saturated soil conditions.” The old definition of “freshwater wetlands” provided a technical “loophole” by describing the vegetation as that which requires saturated soil conditions for growth and reproduction, thereby excluding many forms of truly aquatic vegetation that are prevalent in an inundated or saturated area, but that do not require saturated soil from a biological standpoint for their growth and reproduction. We intend to publish shortly vegetation guides to indicate the types of vegetation intended to be included in this definition, and to rely on the assistance of biologists, scientists and other technical experts from other Federal and State agencies to assist in delineating those wetland areas intended to be included in this definition. 42 Fed.Reg. 37128 (July 19, 1977). Focusing on the Corps’ statement in the preamble in the Federal Register to the effect that the section 404 program was “being revised to clarify many terms,” 42 Fed.Reg. 37122 (July 19, 1977) (emphasis added), the private defendants maintain that the definitional change was intended to be minor. They emphasize that the Corps expressed an intent to include only “truly aquatic areas,” listing “swamps, bogs, and marshes at the end of [the] definition to further clarify [its] intent,” 42 Fed. Reg. 37129. They maintain that the facultative hydrophytes were never meant to be considered as wetland indicators. The private defendants’ analysis merely begs the question of what is a “truly aquatic area” within the Corps’ definition, since “truly aquatic” is not defined in the regulations. While the list of “aquatic areas” at the end of the definition may give us some idea of its scope, that list is inclusive, not exclusive, and the terms “swamps, bogs and marshes” are also undefined. The obligate hydrophytes might be the only species able to survive in a “deep water swamp,” but the definition clearly does not limit its scope to such permanently inundated areas. The comments accompanying the promulgation of the 1977 regulations may be read to support the federal defendants’ interpretation as easily as they may be read to support the landowners’. The comments explained that the Corps had “changed [its] description of the vegetation involved by focusing on vegetation typically adapted for life in saturated soil conditions.” 42 Fed. Reg. 37128 (emphasis added). This “change” was designed to close a “technical loophole” that had “excluded many forms of truly aquatic vegetation that are prevalent in an inundated or saturated area, but that do not require saturated soil from a biological standpoint for their growth and reproduction.” Id. These statements suggest that the Corps fully intended to add certain previously excluded species to its list of wetland indicators. We are equally unpersuaded that the federal defendants’ position is in error by the landowners’ parsing of the definition itself. The landowners would read the words “vegetation typically adapted for life in saturated soil conditions” as limiting the wetlands indicators to species able to survive their entire life cycle in saturated soils. The federal defendants argue that “typically adapted for life in” these soil conditions means the ability to live in such conditions, although some of the species may require relief at certain points in their life cycles. A reading of the entire definition indicates that the agencies’ interpretation is the more reasonable, since wetlands are not limited to areas that are permanently inundated. Finally, we agree with the federal defendants that the decision to analyze the soil and hydrology flows from the language of the definition. The definition speaks of areas that are inundated or saturated “at a frequency and duration sufficient to support” the wetland indicators. We fail to understand how the agency may determine whether a tract is such an area without examining its hydrology. Similarly, the definition provides that a ' wetland is an area that “under normal circumstances [does] support” vegetation typically adapted for life in “saturated soil conditions.” It would seem that the logical method for determining whether this requirement is met is to examine whether the soil is or is likely to be frequently saturated. Regardless of whether the agencies had engaged in an analysis of soil and hydrology in the past, no new burden not already contained in the definition was imposed on the landowners by this change in practice. See Yale Broadcasting Co. v. FCC, 478 F.2d 594, 595-96 (D.C.Cir.), cert, denied, 414 U.S. 914, 94 S.Ct. 211, 38 L.Ed.2d 152 (1973). Since we conclude that the agencies’ interpretation of the wetlands definition is reasonable, we are required to respect it. Udall, supra. A fortiori, we agree with the federal defendants that the methodology was not a significant alteration of the 1977 regulations, and therefore notice-and-comment procedures were not required. 3. Fairness. There is an additional reason why we have concluded that the failure to engage in notice-and-comment procedures should not invalidate the EPA’s final wetlands determination. As discussed above, in deciding whether such procedures are required, a court must keep in mind the underlying purpose of the APA: fairness to the affected parties. The landowners had, and took advantage of, the opportunity to argue about which species were wetlands indicators both at the administrative proceeding and at the trial. Further, while disclaiming the usefulness of the approach, Dr. Rhodes, on whose report the landowners rely heavily, conducted his own analysis of the Lake Long Tract’s soil and hydrology conditions. Admin.Record, Tab 3.17. Therefore, the EPA’s adoption of the methodology did not make the administrative proceedings less than fundamentally fair. Compare Giles Lowery Stockyards, supra (rulemaking not required for agency’s adoption of method for computing livestock exchange rates where plaintiff was aware of agency’s plan to use the methodology and had had an opportunity to build case around it; plaintiff’s decision to use different method not relevant), with Port Terminal, supra (agency’s rejection of plaintiff’s cost studies on ground that studies failed to use specific formula unfair where agency had previously refused to standardize formula); Hill v. Federal Power Commission, 335 F.2d 355 (5th Cir.1964) (hearing unfair where standards applied had not evolved or been announced until agency decision held them unsatisfied). We note further that even if we were to accept the landowners’ contention that the methodology should have been adopted pursuant to notice-and-comment procedures, the same methodology would be required under the EPA’s present regulations. In 1980, the EPA, in conjunction with the Corps, revised its regulations implementing the section 404 permit program. See 45 Ref. 85336 (Dec. 24, 1980). These revisions were made after notice in the Federal Register and a comment period. Id. The regulations require the permitting authority to examine the soil, the hydrology and the aquatic ecosystem to determine the effects of the proposed activity on the aquatic environment. 40 C.F.R. §§ 230.11(a), (b), (c), .20, .21, .22. Section 230.41(a)(3) provides: Wetland vegetation consists of plants that require saturated soils to survive (obligate wetland plants) as well as plants, including certain trees, that gain a competitive advantage over others because they can tolerate prolonged wet soil conditions and their competitors cannot. In addition to plant populations and communities, wetlands are delimited by hydrological and physical characteristics of the environment. These characteristics should be considered when information about them is needed to supplement information available about vegetation, or where wetland vegetation has been removed or is dormant. 40 C.F.R. § 230.41(a)(3) (1982). Since an appellate court must apply the agency’s current regulations, Thorpe v. Housing Authority, 393 U.S. 268, 282, 89 S.Ct. 518, 526, 21 L.Ed.2d 474 (1969); Florida Power & Light Co. v. Costle, 650 F.2d 579, 590 (5th Cir.1981), the most that we could do would be to remand for reconsideration under the new regulations. See Florida Power & Light, supra; Port Terminal, supra (permit-, ting agency to apply new standards on remand as long as plaintiff is given opportunity to present additional evidence). Here, there is no reason for a remand because the landowners have already had an adequate opportunity to present their evidence under the “new” regulations. 4. The Regulations and the Clean Water Act. Having determined that the federal defendants’ interpretation is consistent with the Corps’ wetlands definition, we must consider whether the definition is consistent with the statute and the Constitution. Again in reviewing the statutory question, we must keep in mind the principle that an agency’s interpretation of the statute that it administers is to be accorded significant deference. Ford Motor, supra; Quarles, supra. We conclude that the federal defendants’ interpretation of this “complex” statute is sufficiently reasonable to preclude us from substituting our judgment for the agencies’. See DuPont, supra, 430 U.S. at 134, 97 S.Ct. at 978; Natural Resources Defense Council, supra, 421 U.S. at 87, 95 S.Ct. at 1485. As the district court recognized, Congress had lofty goals in enacting the CWA: “The objective of this chapter is to restore and maintain the chemical and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (1976). Congress expressly stated its intent “that the term ‘navigable waters’ be given the broadest possible constitutional interpretation.... ” 1 Legislative History, at 178 (Senate consideration of the Conference Report on S. 2770, Oct. 4, 1972); see also 1 Legislative History, at 250-51 (House Consideration of same, Oct. 4, 1972). The report of the Senate Committee on Public Works submitted with S. 2770 explained the need for a broad definition of “navigable waters” in order to control the discharge of pollution at its source: The control strategy of the Act extends to navigable waters. The definition of this term means the navigable waters of the United States, portions thereof, and includes the territorial seas and the Great Lakes. Through narrow interpretation of the definition of interstate waters the implementation [of the] 1965 Act was severely limited. Water moves in hydrological cycles and it is essential that .discharge of pollutants be controlled at the source. Therefore, reference to the control requirements must be made to the navigable waters, portions thereof, and their tributaries. 2 Legislative History, at 1495 (emphasis added); see also Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir.1978). Attempts by the House to limit the statute’s reach to waters that were in fact navigable were rejected in 1977. See 3 Legislative History, at 281 (H.Conf .Rep. No. 830). When Congress rejected the attempts to limit the Corps’ jurisdiction in 1977, it was well aware of the extension of that jurisdiction beyond the traditional definition of “navigable waters,” as well as the Corps’ proposed revision of its wetlands definition. See 4 Legislative History, at 920-22 (statement of Sen. Baker during Senate debate over Bentsen amendment, August 4, 1977); 3 Legislative History, at 347-A8 (statement of Rep. Roberts, member of Conference Committee, during House debate, December 15, 1977). In fact, Congress repeatedly recognized the importance of protecting wetlands if the nation was to realize the statutory goal of restoring the chemical and biological integrity of the nation’s waters. Senator Muskie, one of the primary sponsors of the CWA, explained: There has been considerable discussion of the provisions of section 404 of the act, much of which has been related to the suspicions and fears with respect to that section, and little of which has been related to substantive solutions to real problems while providing an adequate regulatory effort to assure some degree of wetlands protection. There is no question that the systematic destruction of the Nation’s wetlands is causing serious, permanent ecological damage. The wetlands and bays, estuaries and deltas are the Nation’s most biologically active areas. They represent a principal source of food supply. They are the spawning grounds for much of the fish and shellfish which populate the oceans, and they are passages for numerous upland game fish. They also provide nesting areas for a myriad of species of birds and wildlife. The unregulated destruction of these areas is a matter which needs to be corrected and which implementation of section 404 has attempted to achieve. 4 Legislative History, at 869 (remarks of Sen. Muskie during Senate debate on S. 1952, Aug. 4, 1977). While there were statements during the 1972 deliberations to the effect that the CWA was not intended to extend beyond currently navigable waters, 1 Legislative History, at 178, 250 (statements of Sen. Muskie and Rep. Dingell), those statements were rendered virtually meaningless by Congress’ refusal to restrict the definition in 1977. The EPA and the Corps expanded the wetlands definition in order to control “the discharge of pollutants at the source.” We cannot say that the EPA’s application of the definition to areas, like the Lake Long Tract, which experience significant flooding during a substantial portion of the year and serve as major overflow or backwater areas for the nation’s rivers, or its conclusion that the discharge of pollution into such areas would have a significant effect on the nation’s waters, was an unreasonable application of the statute. The EPA’s decision is therefore entitled to our respect. 5. Constitutional Challenges to the Corps’ Definition. The landowners also contend that if the CWA authorizes regulation to the extent proposed by the federal defendants, then the Act is unconstitutionally vague and an unlawful delegation of legislative power. We find no merit in either claim. The federal Constitution provides that “[A]ll legislative powers herein granted shall be vested in Congress.” U.S.Const. art. 1, § 1. While Congress is not permitted to “abdicate or transfer to others the essential legislative functions with which it is vested,” it may authorize other bodies to determine specific facts and may also establish general standards and delegate to others the responsibility for effectuating the legislative policy. Schechter Corp. v. United States, 295 U.S. 495, 529-30, 55 S.Ct. 837, 842-43, 79 L.Ed. 1570 (1935); accord Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 248-49, 79 L.Ed. 446 (1935); United States v. Gordon, 580 F.2d 827, 839 (5th Cir.), cert, denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978). In considering an attack on a congressional delegation, our task is to determine whether the standards set forth by Congress are “sufficiently definite in light of the complexity of the area at which the legislation is directed.” Gordon, supra (citing Carlson v. Landon, 342 U.S. 524, 542, 544, 72 S.Ct. 525, 535, 536, 96 L.Ed. 547 (1952)). The CWA’s delegation of authority to the EPA and the Corps clearly meets this test. Congress’ goal — the restoration of the integrity of the nation’s waters and the elimination of discharges of pollutants into those waters — is succinctly set forth in 33 U.S.C. § 1251(a). The agencies’ jurisdiction under the CWA extends to all “waters of the United States,” and the 1977 regulation provides specific criteria further defining the statutory term. In reviewing an application for a dredge-and-fill permit, the agencies are to consider any “unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding wells), wildlife, or recreational areas,” 33 U.S.C. § 1344(c), and the effect of the “disposal of pollutants on human health or welfare, ... marine life, ... esthetic, recreation and economic values . .. [and] the persistence and permanence of [these] effects.. .. ” 33 U.S.C. § 1343(c)(1)(A)-(D). This is not the kind of standardless discretion condemned in Schecter, supra. The .landowners’ vagueness challenge is really just the other side of their delegation challenge. We cannot agree that the application of the Corps’ wetlands definition in this case is so vague as to deprive the landowners of notice that they may be subject to civil and criminal penalties. Indeed, at this point the vagueness claim is based on pure speculation, since the landowners have not been subjected to either civil or criminal penalties. At the commencement of these proceedings, the landowners were well aware that at least a significant portion of their land was a wetland; if they wished to protect themselves from liability they could have applied for a permit and thus obtained a precise delineation of the extent of the wetland, as well as the activities permissible on the land. See United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir.1979) (upholding grant of summary judgment and permanent injunction to the government and noting that landowner could protect himself from civil and criminal liability by seeking a permit that would set forth the extent of the wetlands on his property). In United States v. Phelps Dodge Corp., 391 F.Supp. 1181 (D.Ariz. 1975), the district court rejected a vagueness challenge to the application of the CWA to “normally dry arroyos” in a criminal proceeding, a circumstance counseling far greater concern for vagueness than this. We are unpersuaded that the Corps’ wetlands definition failed to give the landowners notice of their potential liability in this case. 6. The Merits of the EPA’s Wetlands Determination. The essence of the landowners’ challenge to the EPA’s final wetlands determination concerned the legal issues described above, in particular the use of the new methodology. To a limited extent, the landowners have also disputed some of the agency’s factual findings. Our review of the administrative record in this case does not indicate that the EPA’s findings were arbitrary or capricious. While the EPA found that approximately eighty percent of the Lake Long Tract was a wetland, the district court found that over ninety percent of the tract was a wetland. The court and the agency reached different conclusions because they held differing beliefs about whether Tensas and Dundee soils were wetlands soils. The EPA’s conclusion that areas made up of these two soils should be excluded from the wetlands area was based on the report of the agency’s soil expert, Dr. William H. Patrick, Jr. Dr. Patrick examined the site’s soils for wetness, texture, color and extent of mottling and concluded that the Dundee and Tensas soils were less likely to remain saturated than the other wetlands soils. See Admin.Record, Tab 3.19. The district court found that all of these soils were wetlands soils because they drain poorly. While there may have been room for a difference in opinion about the nature of these soils, such a difference does not mean that the agency’s decision was arbitrary or capricious. The agency and its expert explained their reasons for concluding that the Dundee and Tensas soils were not wetlands, and their decision is not irrational. Since the courts may not require any more than that, Overton Park, supra, the district court erred in substituting its judgment about the character of the soils for the agency’s. The landowners emphasize that the EPA’s determination that approximately eighty percent of the tract was a wetland does not correspond to the findings of any of its experts. In discussing percentages, it is all too easy to lose sight of the fact that we are discussing the characteristics of land, not the amount of octane required in gasoline or the amount of lead permitted in drainage pipes. We must not forget that these percentages are a mere shorthand for the map of wetlands that our pens and tongues cannot adequately describe. The eighty-percent figure is based on Dr. Patrick’s report about the area’s soils. He opined that sixty percent of the tract was a wetland because he would have excluded from his calculations the Tensas-Sharkey soils, which he viewed as mixed and non-mixed wetlands soils, as well as the Dundee and Tensas soils. Admin.Record, Tab 3.19. The EPA decided not to exclude the Tensas-Sharkey soils because it was too difficult to separate these soils from the wetlands soils. Final Wetlands Determination at 6-7, 2 Record at 377-78; Admin.Record, Tab 3.38 (EPA Regional Administrator’s Report). Since the Tensas-Sharkey soils accounted for approximately twenty percent of the tract, their inclusion explains the difference between the EPA’s determination and its expert’s. Finally, the landowners dispute the EPA’s findings with respect to which types of vegetation were wetlands indicators and the extent of the inundation of the tract. The vegetation dispute concerns whether the facultative hydrophytes should be considered wetlands indicators, not which types of vegetation were actually on the tract. We have already determined that the EPA’s view of the matter was not irrational. While there were conflicting reports about the extent of flooding on the tract, both in the administrative record and at trial, this conflict was properly resolved by the agency. In summary, we hold that the EPA’s final wetlands determination was not arbitrary or capricious. Therefore, the district court’s determination must be set aside to the extent that it is in conflict with the agency’s, and the agency’s determination should be reinstated. III. ACTIVITIES REQUIRING A PERMIT. We note at the outset of our discussion of the landclearing activities in this case that the litigation over this issue has not proceeded in the most desirable fashion. At oral argument, we asked the federal defendants why they were not claiming that their determination of which activities would require a permit should be subject to the same standard of review as the wetlands determination. Their counsel responded that the same standard probably should have applied, but he suspected that the issue had not been raised below. Our own review of the record indicates that the federal defendants did suggest that the entire wetlands determination should have been reviewed under the arbitrary and capricious standard, 2 Record at 548, but they admitted that the EPA’s activities determination had not been as carefully considered as the wetlands determination: While the determination heretofore made is ample to support a finding by the court that most of the area in question is a wetland, and to support a conclusion that some of the nonfederal defendants’ actions will involve the discharges of dredged or fill material, the activities determination was not based upon a full development of all relevant facts that would normally take place in a permit procedure. 2 Record at 551 (emphasis in original). The federal defendants then asked the court to allow the Corps to exercise its “primary jurisdiction” over which activities should be permitted on the wetlands by directing the private defendants to apply for a permit rather than proceeding to trial: In light of the complex situation in this case, federal defendants suggest that the initial determination in this case of the essentially factual issues of whether or not there will be discharges of dredged or fill material and what the effects thereof will be on the reach and flow and circulation of navigable waters, be made through the permit process instituted by Congress for that purpose, and thereafter the case would be ripe for judicial review. Id. (emphasis in original). The judge-made doctrine of primary jurisdiction is “concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.” United States v. Western Pacific Railroad, 352 U.S. 59, 63, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). It applies where a claim is “originally cognizable in the courts,” but where “enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.” Id. at 64, 77 S.Ct. at 165. Application of the doctrine is particularly appropriate where uniformity of certain types of administrative decisions is desirable, or where there is a need for the “expert and specialized knowledge of the agencies.” Id.; see also Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U.S. 411, 420, 79 S.Ct. 1210, 1216, 3 L.Ed.2d 1334 (1959); Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S.Ct. 492, 494-95, 96 L.Ed. 576 (1952). The district court might have been well advised to agree to the federal defendants’ request that the Corps be allowed to make the initial determination about which activities should be permitted on the Lake Long Tract. Compare Deltona Corp. v. Alexander, 682 F.2d 888, 893-94 (11th Cir.1982) (upholding summary judgment in Corps’ favor where Corps had not yet had opportunity to make initial determination of extent of wetlands); Montgomery Environmental Coalition Citizens Coordinating Committee v. Washington Suburban Sanitary Commission, 607 F.2d 378, 381 (D.C.Cir.1979) (upholding dismissal of action seeking to enjoin defendants from exceeding sewage treatment guidelines where EPA proceeding was pending, since EPA had primary jurisdiction over issuance of section 402 permits); and Alton Box Board Co. v. EPA, 592 F.2d 395, 399 n. 7 (7th Cir.1979) (court may order EPA to afford plaintiff a hearing but not to issue a permit because doctrine of primary jurisdiction requires initial agency determination), with Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 231, 244-45 (3d Cir.1980), cert, denied, 449 U.S. 1096, 101 S.Ct. 893, 66 L.Ed.2d 824 (1981) (primary jurisdiction requires exhaustion of administrative remedies under Atomic Energy Act but not under CWA); Asarco, Inc. v. EPA, 578 F.2d 319, 321 n. 1 (D.C.Cir.1978) (dismissal of intervenor’s claim for failure to exhaust not required where the agency failed to insist upon exhaustion, statutory interpretation issues were within court’s competence, and plaintiff and intervenor raised essentially same question); and O’Leary v. Moyer’s Landfill, Inc., 523 F.Supp. 642, 646-47 (E.D.Pa.1981) (primary jurisdiction does not require sending case to state environmental agency where complaint is that agency has been ineffective and issues are within court’s competence). As the federal defendants predicted, the district court took extensive evidence about the nature and effects of the landowners’ activities, only to conclude that a dredge- and-fill permit was indeed required. Should the landowners now wish to proceed with their activities, they must apply to the Corps for a permit, at which point the Corps will be forced to consider the same evidence in order to determine whether a permit should issue. An initial determination by the Corps might have obviated the need for addressing some of the issues discussed in the district court’s opinion and presently urged on appeal. Further, if the Corps ultimately issues the permit, we will be faced with yet another round of appeals challenging the agency’s determination. Regardless of whether it might have been advisable to allow the Corps to make the initial determination in this case, the federal defendants have abandoned théir primary-jurisdiction claim on appeal, perhaps because they are satisfied with most of the district court’s conclusions. The District of Columbia Circuit faced the converse of this situation in Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692 (D.C.Cir. 1975). While rejecting the EPA’s argument that the notice provision of section 505(b)(2) was a jurisdictional prerequisite to a citizen’s suit under the CWA, 33 U.S.C. § 1365(b)(2), the Natural Resources court suggested that courts might “properly give effect to the salutary purposes underlying the notice provision by resort to familiar doctrines such as those underpinning the requirements of exhaustion of administrative remedies.” 510 F.2d at 703. The court explained: The notice provision was designed to obviate the need for judicial recourse by affording the agency the “opportunity to act on the alleged violation.” Sound discretion bids a court stay its hand upon petition by the Administrator where it has reason to believe that further agency consideration may resolve the dispute and obviate the need for further judicial action. Id. (footnote omitted). It was unwilling, however, to require exhaustion when the issue had been raised for the first time on appeal, there was no evidence that the agency desired to reassess its plans, and the “course of the present action clearly indicate[d] that the agency’s position with regard to its discretion under [section 304(b)(1)(A) was] firmly rooted.” Id. Here, the primary jurisdiction question has been abandoned, instead of being raised for the first time, on appeal. While the agencies’ position has been anything but “firmly rooted” during the course of this action, they appear to have finally determined which of the private defendants’ land-clearing activities should not be conducted without a section 404 permit. We note further that the agencies participated fully in the trial below, and thus the district court had the benefit of their views on the activities issue. See United States v. Rohm & Haas Co., 500 F.2d 167, 175 (5th Cir.1974), cert, denied, 420 U.S. 962, 95 S.Ct. 1352, 43 L.Ed.2d 439 (1975) (primary jurisdiction not necessary where agency had participated extensively in litigation). Under these circumstances, we believe that no purpose would be served by vacating the district court’s decision and remanding to the agency for the “initial determination.” We turn then to our consideration of whether the district court’s conclusion that the private defendants’ landclearing activities required a section 404 permit was correct. In reviewing the trial court’s decision, we are bound by the traditional standard requiring us to uphold a trial court’s factual findings unless they are clearly erroneous. Fed.R.Civ.P. 52(a). Of course, we are free to make our own independent assessment of the court’s legal conclusions. Sierra Club v. Sigler, 695 F.2d 957, 967-68 (5th Cir.1983). A. Factual Findings. The district court found that the landowners had engaged in the following activities: Initially, bulldozers outfitted with shearing blades cut the timber and vegetation at or just above ground level. The shearing blades were v-shaped, had a serrated edge and flat bottom and were approximately 18-20 feet in length. The blades were adjusted to be free floating so that they would ride along the top surface of the ground. Occasionally, however, the blades would gouge the surface of the ground. Although the blades were adjusted to ride on the ground’s surface, they did scrape the leaf litter and humus that overlaid the soil as they moved from tree to tree. After the shearing was completed in a section, bulldozers outfitted with rake blades pushed the felled trees into windrows. The upper portion of the raking blade was solid whereas the lower portion had tines that permitted soil to pass through the openings. The raking blades were also outfitted so that they generally operated on top of the soil. However, in the process of windrowing the trees and debris, soil and leaf litter was also scraped into the windrows. It is not clear whether the blades themselves or the broom-like action of the trees and brush that they were pushing actually scraped the soil and the overlying leaf litter. In any event the photographic evidence clearly demonstrated that soil and leaf litter was piled up during the windrowing process — this movement filled in low areas and along with the discing which followed, had a levelling effect on the surface of the land. The trees and other vegetation that had been windrowed were then burned. The remaining ashes were later disced into and across the tract. Some of the felled trees and other debris would not burn. This material was buried in four or five pits, each approximately 50 feet long and 6 feet deep that had been dug with backhoes by the private defendants. Tractors pulling chunk rakes would go over the areas that had been sheared and windrowed and rake together any remaining debris. Basically, the chunk rakes were sets of tines that were outfitted on cultivators that had had their blades removed. The chunk rakes gathered the small debris into piles where it was presumably burned. These ashes were also disced into the soil. After the shearing, windrowing and chunk raking the land was disced to prepare it for soybean cultivation. A disc is a bowl-shaped blade that cuts into the ground and fluffs the soil up. The disc’s [sic] used on this tract were 24 inches in diameter and would cut into the ground approximately 9 inches. During discing, some soil would ride in front of the disc and would be redeposited in other areas of the tract, resulting in substantial displacement ánd redepositing of the soil itself. Defendants also dug a drainage ditch that was approximately three-quarters of a mile long. The earth excavated from the ditch was piled alongside the ditch and was to be spread over the adjacent area. Construction of at least four or five miles of additional ditches were contemplated for soybean cultivation. Avoyelles Sportsmen’s League v. Alexander (Avoyelles I), 473 F.Supp. 525, 528-29 (W.D. La.1979) (footnote omitted). The private defendants are the only parties who challenge the district court’s factual findings. While they have indicated portions of the record that support their contention that the landclearing activities did not result in any significant digging up of the earth or leveling of the land, the plaintiffs presented their own eyewitness testimony to the effect that large chunks of earth had been torn up, holes dug, and sloughs filled in. Resolution of this conflict in the evidence is properly left to the district court, who has had an opportunity to hear and observe the witnesses. We cannot say on the basis of this record that the trial court’s factual findings were clearly erroneous. B. The Discharge of Pollutants. The district court held that the private defendants’ landclearing activities constituted a “discharge of a pollutant” into the waters of the United States, and that engaging in those activities without a section 404 dredge-and-fill permit was a violation of section 301(a) of the CWA. 33 U.S.C. § 1311(a). As the district court did, we must look beyond section 301(a) itself, to the statutory and regulatory definitions, in order to determine whether the district court’s holding was correct. Section 502(12) defines the term “discharge of a pollutant” as “(a) any addition of any pollutant to navigable waters from any point source .... ” 33 U.S.C. § 1362(12). A “point source” is defined in section 502(14) as “any discernible, confined and discrete conveyance, including but not limited to any ... container, rolling stock, concentrated animal feeding operation, or vessel .. . from which pollutants are or may be discharged....” 33 U.S.C. § 1362(14). Section 502(6) defines the term “pollutant” to mean “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal and agricultural waste discharged into water.” 33 U.S.C. § 1362(6). The question in this case is whether the landclearing activities were (1) a discharge (2) of a pollutant (3) from a point source (4) into navigable waters. Further, we must determine whether the activities were “normal agricultural activities” exempted from the permit requirements by 33 U.S.C. § 1344(f). As discussed in Part II, these activities did occur in navigable waters, as that term is defined in the statute. Further, we agree with the district court that the bulldozers and backhoes were “point sources,” since they collected into windrows and piles material that may ultimately have found its way back into the waters. See Sierra Club v. Abston Construction Co., 620 F.2d 41 (5th Cir.1980) (mining scrap piles may be point sources even though material may not be carried directly to waters from the piles); United States v. Holland, 373 F.Supp. 665, 668 (M.D.Fla.1974) (bulldozers are point sources). The question then is whether these activities constituted a “discharge” of a “pollutant.” Emphasizing that the removal of all of the vegetation would destroy the vital ecological function of the wetlands", the district court concluded that the landclearing activities constituted a “discharge” within the meaning of the CWA. Both the federal and private defendants argue that the “mere removal” of wetlands vegetation was not a discharge because the term discharge is defined as the “addition” of pollutants, not the removal of materials. The district court rejected this argument as “untenable” because it believed that the federal defendants’ interpretation would frustrate the ecological purposes of the CWA. 473 F.Supp. at 536. In the court’s view, the federal defendants’ argument implied that “the excavation of [a] ditch 6 feet deep and 100 feet long requires a § 404 permit (is destructive of wetlands) but that the clearing of 20,000 acres of forest wetlands by methods involving only de minimis movement of earth does not (is not destructive of wetlands).” Id. The District of Columbia Circuit recently reversed a district court’s decision where the lower court had rejected the EPA’s view that section 402 of the CWA only covered the addition of pollutants. National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C.Cir.1982). Like the district court here, the trial court in National Wildlife found that the EPA’s “ ‘overly literal and technical’ construction was the ‘more tortured’ and ... less consonant with Congress’ zero-discharge goal.” 693 F.2d at 166. As an initial matter, the court of appeals held that the district court had failed to give enough deference to the EPA’s construction of the Act. 693 F.2d at 166-67 (citing EPA v. National Crushed Stone Association, 449 U.S. 64, 83, 101 S.Ct. 295, 307, 66 L.Ed.2d 268 (1980)). Besides the fact that Congress had “given the EPA substantial discretion in administering” the CWA, the court of appeals noted that the agency’s construction had been “made contemporaneously with the passage of the Act, and ha[d] been consistently adhered to since.” 693 F.2d at 107. The court of appeals then went on to note that the district court had “paid too much attention to the broad stated purposes of the Act, and too little attention to the legislative history that must inform its view of those purposes.” Id. at 171. Finally, noting that regulation by the states of dam-induced pollution was provided for in section 208, 33 U.S.C. § 1218, the National Wildlife court concluded that the EPA’s interpretation of the statute was reasonable and therefore it must be respected. See also Missouri ex rel. Ashcroft v. Department of the Army, 672 F.2d 1297, 1304 (8th Cir.1982) (district court did not err in holding that operation of dam did not result in discharge of pollutant as discharge requires “addition” of pollutant from “point source” and neither term applied to soil erosion or oxygen content of water). A brief analysis of the district court’s factual findings indicates that the dispute about whether the CWA covers the mere removal of vegetation is a false issue in this case. The EPA has explained on appeal that it agrees with the district court that “if vegetation or other materials are redeposited in the wetland, that activity is a discharge. [Their] point of disagreement with the district court was with its apparent conclusion that removal activities [were] covered by the Act even when nothing is redeposited on the land.” Federal Defendants’ Reply Brief at 2 n. 1. The district court’s factual findings demonstrate that this is not a “mere removal” case. The court found that “during the clearing process small sloughs were filled in and larger ones partially filled thereby levelling the land.” 473 F.Supp. at 536. The landowners’ own witness admitted to burying logs in holes that he had dug, and the plaintiffs’ witnesses testified that material that would not burn was buried. Since the landclearing activities involved the redeposit of materials, rather than their mere removal, we need not determine today whether mere removal may constitute a discharge under the CWA. Any suggestion made by the district court that the term “discharge” does cover removal is pure dicta. The word “addition,” as used in the definition of the term “discharge,” may reasonably be understood to include “redeposit.” As the district court recognized, this reading of the definition is consistent with both the purposes and legislative history of the statute. The CWA was designed to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), and as discussed in Part II, the legislative history indicates that Congress recognized the importance of protecting wetlands as a means of reaching the statutory goals. See, e.g., 3 Legislative History, at 869 (remarks of Sen. Muskie) (quoted by the district court, 473 F.Supp. at 536). There is ample evidence in the record to support the district court’s conclusion that the landowners’ redepositing activities would significantly alter the character of the wetlands and limit the vital ecological functions served by the tract. Since we have concluded that the term “discharge” covers the redepositing of materials taken from the wetlands, we hold that the district court correctly decided that the landclearing activities on the Lake Long Tract constituted a discharge within the meaning of the Act. Similarly, we agree with the district court, the plaintiffs and the federal defendants that the material discharged in this case was “fill,” if not “dredged,” material and hence subject to the Corps’ regulation under section 404, as long as the activities did not fall within the section 404(f) exemption. The term “fill material” is defined in the Corps’ regulations as any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a waterbody. The term does not include any pollutant discharged into the water primarily to dispose of waste, as that activity is regulated under Section 402 of the Federal Water Pollution Control Act Amendments of 1972. 33 C.F.R. § 323.2(m). The regulations define the “discharge of fill material” as the addition of fill material into waters of the United States. The term generally includes, without limitation, the following activities: Placement of fill that is necessary to the construction of any structure in a water of the United States; the building of any structure or impoundment requiring rock, sand, dirt, or other material for its construction; site-development fills for recreational, industrial, commercial, residential, and other uses; causeways or road fills; dams and dikes; artificial islands; property protection and/or reclamation devices such as rip-rap, groins, seawalls, breakwaters, and revetments; beach nourishment; levees; fill for structures such as sewage treatment facilities, intake and outfall pipes associated with power plants and subaqueous utility lines; and artificial reefs. The term does not include plowing, cultivating, seeding and harvesting for the production of food, fiber, and forest products. 33 C.F.R. § 323.2(n). As discussed above, the burying of the unburned material, as well as the discing, had the effect of filling in the sloughs on the tract and leveling the land. The landowners insist that any leveling was “incidental” to their clearing activities and therefore the material was not deposited for the “primary purpose” of changing the character of the land. The district court found, however, that there had been significant leveling. The plaintiffs’ witnesses testified that sloughs that had contained rainwater in the past had been filled in; thus, the activities were “changing the bottom elevation of the waterbody.” Certainly, the activities were designed to “replace the aquatic area with dry land.” Accordingly, we hold that the district court correctly concluded that the landowners were discharging “fill material” into the wetlands. The district court also found that removal of the vegetation constituted dredging. The regulations define “dredged material” as “material that is excavated or dredged from waters of the United States.” 33 C.F.R. § 323.2(k). The district court reasoned that since the vegetation was part of the wetlands, it was also part of the “waters of the United States;” therefore, removal of the vegetation constituted dredging. The landowners emphasize that dredging is “excavation.” They argue that the vegetation is a wetland indicator, not a part of the wetland itself; therefore, the removal of the vegetation from the surface of the wetland is not “dredging.” The federal defendants agree with the landowners that the removal of vegetation from above ground is not dredging, but they do not view this as a crucial issue in this case because they agree with the district court that the landowners were discharging “fill material.” Federal Defendants’ Brief at 19 n. 17. We note that there was testimony that the landowners’ activities included the digging of ditches and holes, which would constitute “dredging” even under the landowners’ interpretation of the regulation. Like the federal defendants, however, we do not believe that a decision whether there was a discharge of dredged material is necessary here, since we have concluded that there was a discharge of fill material. C. Statutory Exemptions. Finally, the private defendants argue that their activities are normal farming activities exempt under section 404(f) of the Act. 33 U.S.C. § 1344(f) (Supp. V 1981). Section 404(f)(1) exempts from the permit requirements: (f)(1) Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill material— (A) from normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices. 33 U.S.C. § 1344(f)(1)(A). The Corps’ regulations further implement this limitation by excluding “plowing, cultivating, feeding and harvesting for the production of food, fiber and forest products” from the definitions of a discharge of dredged or fill material. 33 C.F.R. §§ 323.2(1), (n). While the private defendants’ landclearing activities are not those specified in the Act, the defendants insist that the activities are nonetheless “normal” farming practices that should fall within the exemption. The district court believed that the section 404(f)(1) exemptions were limited to “ongoing” agricultural activities. It reasoned that the word “‘normal’ connote[d] an established and continuing activity,” and that the activities set out as examples in section 404(f)(1)(A) were the kinds of activities that would “only occur on a continuing basis as part of an ongoing farming or forestry operation.” Avoyelles I, 473 F.Supp. at 535. Because “no farming operation was or could have been contemplated [on the Lake Long Tract] until after the acreage had been cleared,” the district court concluded that the activities in this case were not “normal farming activities.” Id. It added that this conclusion was “buttressed” by the fact that “section 404(f)(2) specifically takes away the exemption for activities that involve changing the use of the land.” Id. Since we agree with the district court that section 404(f)(2) precludes applying the “normal farming activities” exemption in this case, we affirm the district court’s decision on that basis. Section 404(f)(2) takes away at least some of the exemptions arguably provided by section 404(f)(1): (2) Any discharge of dredged or fill material into the navigable waters 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, shall be required to have a permit under this section. 33 U.S.C. § 1344(f)(2). Read together, the two parts of section 404(f) provide a narrow exemption for agricultural and silvicultural activities that have little or no adverse effect on the nation’s waters. This is precisely what Congress intended in enacting the amendment. During the Senate debates on the 1977 amendments, Senator Muskie, one of the primary sponsors of the CWA, explained: 3 Legislative History, at 474. As the district court opinion ably demonstrates, the purpose and effect of the landclearing activities on the Lake Long Tract was to bring “an area of the navigable waters into a use to which it was not previously subject.” 33 U.S.C. § 1344(f)(2). All of the vegetation was cut down, the land leveled, and at least one ditch dug to increase drainage so that the property could be changed from a forest to a soybean field. These changes can hardly be viewed as having a minimal adverse effect on the wetlands. Accordingly, we hold that the district court was correct in concluding that the land-clearing activities in this case were not exempt farming activities under section 404(f)(1). New subsection 404(f) provides that Federal permits will not be required for those narrowly defined activities that cause little or no adverse effects either individually or cumulatively. While it is understood that some of these activities may necessarily result in incidental filling and minor harm to aquatic resources, the exemptions do not apply to discharges that convert extensive areas of water into dry land or impede circulation or reduce the reach or size of the water body. Since, as we have observed, additional litigation could ensue from the Corps’ section 404 permit determinations, however, a word of caution seems appropriate. Our partial affirmance of the district court’s decisions on permanent injunction is based upon the same total activities approach used by the district court. That court did not make a tract-by-tract determination of what precise activities were observed in each area of the lands involved, nor does the district court’s opinion disclose the precise location of the lands previously cleared, on which permits are required only for construction of dikes, levees or major drainage projects. If a section 404 permit application is filed on any part of the lands covered by the district court’s injunction, the Corps should be free to apply its expertise to that permit determination without any constraint from the district court’s injunctive determinations except those we have expressly affirmed, i.e., (1) that the bulldozers and backhoes are “point sources” within the meaning of the CWA; (2) that the filling in of the sloughs and leveling of the land resulted in the redepositing of fill material into the waters of the United States and was therefore a “discharge of a pollutant;” and (3) that the landclearing activities observed on the land thus far were not exempt from the Corps’ section 404 permit requirements because those activities constituted a change in use of the wetlands. IV. OTHER CLAIMS. A. Taking Without Just Compensation. The private defendants claim that a determination that the Lake Long Tract is a wetland subject to the Corps’ regulation constitutes a “taking” for which just compensation must be paid under the fifth amendment. The district court rejected this claim because it had not been shown that enforcement of the CWA was not “reasonable, legitimate and in the public interest.” Avoyelles II, 511 F.Supp. at 287. See, e.g., Andrus v. Allard, 444 U.S. 51, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 123, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978); Deltona Corp. v. United States, 657 F.2d 1184 (Ct.Cl.1981), cert, denied, 455 U.S. 1017, 102 S.Ct. 1712, 72 L.Ed.2d 135 (1982). While we agree with the district court that there has as yet been no taking, we hold that the claim should have been dismissed because it was premature. Like the landowners here, the defendant landowner in United States v. Byrd, 609 F.2d 1204 (7th Cir.1979), argued that the requirement that he obtain a permit was tantamount to a taking of his property without compensation and therefore an illegal expropriation in violation of the fifth amendment. Rejecting this argument, the Seventh Circuit noted that Byrd assume[d] a taking that may never take place. If Byrd applies for a permit and the Corps then issues it, Byrd will have no further complaint. If the Corps denies the permit application, the reasons therefore must be disclosed, and Byrd may seek judicial relief, if warranted. 609 F.2d at 1211. The Byrd court then held that the landowner should save his complaint until he had complied with the Corps’ permit procedure. See also Allain-Lebreton Co. v. Department of the Army, 670 F.2d 43 (5th Cir.1982) (since Corps’ rejection of plaintiff’s land as a site for flood control levee because land enclosed a tract of wetlands was not a taking, and in fact was a refusal to take, there was no ease or controversy and complaint was properly dismissed). Since there has as yet been no determination whether the landowners may put their property to the uses that they desire, we hold that the consideration of their taking claim should have been delayed until after they had complied with the Corps’ permit procedure. B. Intervention of Louisiana Department of Agriculture. Louisiana was represented as an intervenor in the proceedings below by its Department of Natural Resources. After final judgment was entered, the Department of Natural Resources sought and obtained an extension of the time for it to take an appeal. In the meantime, the State decided that it wanted to be represented on appeal by the Department of Agriculture, not the Department of Natural Resources. Therefore, on IMay 10,1982, the Department of Agriculture moved to intervene as a substitute for the Department of Natural Resources in order to appeal the judgment. The Department of Natural Resources’ appeal time had been extended until May 20, 1982, so the Department of Agriculture’s motion was within the extended time for appeal (although not within the original time, which had expired on April 20, 1982). On the day the motion was made, the district court denied it on the ground that the Department of Natural Resources could adequately represent the interests of the State. The Department of Natural Resources never filed an appeal from the judgment below; the Department of Agriculture appealed both that judgment and the denial of its motion to intervene. In reviewing the denial of the motion to intervene, we confront the initial question of the district court’s jurisdiction to hear the motion. The first notice of appeal in this case was filed on April 5, 1982, more than a month before the Department of Agriculture’s motion. This circuit follows the general rule that the filing of a valid notice of appeal from a final order of the district court divests that court of jurisdiction to act on the matters involved in the appeal, except to aid the appeal, correct clerical errors, or enforce its judgment so long as the judgment has not been stayed or superseded. Farmhand, Inc. v. Anel Engineering Industries, Inc., 693 F.2d 1140, 1145-46 (5th Cir.1982) (exception for enforcement of judgment); Taylor v. Sterrett, 640 F.2d 663, 667-68 (5th Cir.1981) (exception for matters not involved in appeal from interlocutory order); Zimmer v. McKeithen, 467 F.2d 1381, 1382 (5th Cir.1972) (general rule), aff’d sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976); Silverthorne v. Laird, 460 F.2d 1175, 1178-79 (5th Cir.1972) (district court opinion explaining judgment, filed after taking of appeal from that judgment, within exception for matters in aid of appeal). See also 9 J. Moore & B. Ward, Moore’s Federal Practice ¶ 203.-11 (1983). Several courts have held that the filing of a valid notice of appeal deprives the district court of jurisdiction to consider motions for intervention. Armstrong v. Board of School Directors, 616 F.2d 305, 327 (7th Cir.1979); SEC v. Investors Security Corp., 560 F.2d 561, 568 (3d Cir.1977); Rolle v. New York City Housing Authority, 294 F.Supp. 574, 576-77 (S.D.N.Y.1969); Hobson v. Hansen, 44 F.R.D. 18, 19 (D.D.C.1968) (Wright, J., sitting by designation as dis trict judge) (stating that district court had jurisdiction only because court of appeals had remanded case to district court to hear motions). The Third Circuit, however, has reconsidered the position it took in Investors Security Corp., supra. In Halderman v. Pennhurst State School & Hospital, 612 F.2d 131, 134 (3d Cir.1979) (en banc), the court reasoned that the Supreme Court decision in United Airlines v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), had tacitly rejected the Investors Security Corp. rule by “approving the opinion in” American Brake Shoe & Foundry Co. v. Interborough Rapid Transit Co., 3 F.R.D. 162 (S.D.N.Y.1942). Halderman, 612 F.2d at 134. We are not persuaded by the Third Circuit’s reading of McDonald. The reference to American Brake states simply that it is “[a] case closely in point.” McDonald, 432 U.S. at 395 n. 16, 97 S.Ct. at 2470 n. 16. In McDonald itself, the motion to intervene was made before any appeal was filed. Nevertheless, assuming that the Supreme Court intended to endorse American Brake, we do not believe that American Brake is contrary to the general rule. In that case, the party who had appealed settled his claim “at or about the same time” as he filed the notice of appeal, and before the motion for intervention. American Brake, 3 F.R.D. at 164. That settlement removed the circuit court’s jurisdiction over the appeal, since it ended the case or controversy between the appellant and the appellees. See Bullard v. Estelle, 708 F.2d 1020 (5th Cir.1983). American Brake thus appears to be simply an example of the exception to the transfer-of-jurisdiction rule for invalid appeals. See United States v. Hitchmon, 602 F.2d 689, 690-91 (5th Cir.1979) (en banc) (appeal from unappealable order does not divest district court of jurisdiction during period that appeal is pending in circuit court); 9 J. Moore & B. Ward, Moore’s Federal Practice ¶ 203.11 (1983). We have found only one case that follows Halderman. In Lane v. Bethlehem Steel Corp., 93 F.R.D. 611, 612 n. 2 (D.Md.1982), the motion for intervention was filed at the same time as the would-be intervenors’ appeal. The court held that, under Haiderman, it had jurisdiction to hear the motion. In a very similar case, the Ninth Circuit held that the district court had jurisdiction to hear a rule 60(b) motion filed on the same day as an appeal. Long v. Bureau of Economic Analysis, 646 F.2d 1310, 1318-19 (9th Cir.) vacated on other grounds, 454 U.S. 934, 102 S.Ct. 468, 70 L.Ed.2d 242 (1981). The Ninth Circuit did not rely on any exception to the transfer-of-jurisdiction rule, but simply refused to apply the rule where the events occurred on the same day. Long may be distinguishable from Lane, though, because in Long the district court decided the rule 60(b) motion on the day that it and the appeal were filed; Lane does not indicate when the intervention motion was ruled on. To the extent that Lane is inconsistent with Long, we disagree with it for the same reasons that we disagree with Halderman. Because we find Halderman’s analysis of McDonald and American Brake unpersuasive, we adhere to the earlier rule that the filing of a valid appeal deprives the district court of jurisdiction to hear a motion to intervene. The district court was thus without jurisdiction to entertain the motion of the Department of Agriculture; we therefore affirm, although on different grounds, the district court’s refusal to grant the motion. C. The Elder Realty Company. The Elder Realty Company, one of the private defendants below, has raised three points that pertain to it but not to the other private defendants. The arguments are: (1) that the injunction should not have issued against Elder Realty, because Elder Realty had not participated in the clearing but had merely sold the land to Bayou Lafourche (which cleared the land during the period of its purchase option); (2) that the injunction should not run against Elder Realty’s heirs and assigns, because they have never indicated any intention to clear the land; and (3) that there is no evidence in the record to support a finding that a 4400-acre portion of the tract, which Elder Realty sold to Bayou Lafourche and which Bayou Lafourche immediately resold to Joseph Elder, was wetlands. We decline to address any of these issues, because they do not appear to have been raised below. Elder Realty describes these contentions as appeals from the district court’s denial, on June 23, 1979, of Elder Realty’s motion for summary judgment. That motion, its supporting affidavit, and the accompanying memorandum of law seek relief only for Elder Realty and on only one ground: that, having sold all of its interest in the Lake Long Tract, Elder Realty was no longer a proper subject of the injunction. We decline to consider questions raised for the first time on appeal. Wiley v. Offshore Painting Contractors, Inc., 711 F.2d 602 at 608, 609 (5th Cir.1983). V. CONCLUSION. With respect to the wetlands determination, we hold: (1) that the district court erred in substituting its own wetlands determination for the EPA’s final wetlands determination; (2) that the district court should have reviewed the EPA’s wetlands determination under the arbitrary and capricious standard and that the administrative record should have served as the focal point for that review; (3) that notice and comment rulemaking procedures were not required before the EPA could apply its three-part methodology in determining the extent of wetlands on the property because the methodology was an interpretation of the administrative regulations; (4) that the federal defendants’ interpretation of the 1977 wetlands definition is not inconsistent with the regulation, the Clean Water Act, or the United States Constitution; (5) that the EPA’s final wetlands determination was not arbitrary and capricious. Accordingly, the district court’s wetlands determination is reversed to the extent that it is inconsistent with the agency’s, and the EPA’s determination is reinstated. With respect to the activities issue, we hold: (1) that the bulldozers and backhoes were “point sources” within the meaning of the Clean Water Act; (2) that in filling in the sloughs and leveling the land, the landowners were redepositing fill material into waters of the United States, and that therefore, these activities constituted a “discharge of a pollutant;” (3) that the landclearing activities were not exempt from the Corps’ permit requirements under section 404(f)(1) of the CWA because those activities constituted a change in use of wetlands under section 404(f)(2). Accordingly, we affirm the district court’s judgment that these landclearing activities may not be carried out without a section 404 dredge-and-fill permit; however, we note that should a section 404 permit application be filed, the Corps will be free to apply its expertise to that permit determination without any constraint from the district court’s injunctive determinations except those we have expressly affirmed. Finally, we hold that the district court should have dismissed the taking claim because it was premature, and that the district court’s denial of the Louisiana Department of Agriculture’s motion to intervene was proper because the filing of a notice of appeal nearly a month before the Department of Agriculture filed its motion deprived the district court of jurisdiction to entertain the department’s motion. The private defendants shall bear the costs of this appeal. AFFIRMED in part and REVERSED in part. APPENDIX CIVIL ACTION No. 78428-A IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA AVOYELLES SPORTSMAN’S LEAGUE, et al., Plaintiffs, v. CLIFFORD L. ALEXANDER, et al., Defendants. FINAL WETLAND DETERMINATION Federal Defendants submit herewith for filing pursuant to the Court’s order of January 17,1979, a final determination of those areas on the Lake Long tract considered by the United States to be waters of the United States subject to the Clean Water Act, and with regard to which enforcement action may be appropriate if discharges of pollutants are made or threatened to be made therein without necessary permits. Respectfully submitted, J. RANSDELL KEENE United States Attorney Western District of Louisiana Post Office Box 33 Shreveport, Louisiana 71161 FRANCES O. ALLEN Assistant U.S. Attorney FRED R. DISHEROON STEPHEN D. RAMSEY Attorneys, Department of Justice Washington, D.C. 20530 (202) 633-2307 Determination of the Portions of the Lake Long Tract Which Are Within the Jurisdiction of the Clean Water Act Pursuant to the Court’s order of January 17, 1979, a determination has been made of the portions of the Lake Long tract falling within the jurisdiction of the Clean Water Act. This document, together with the attached map (Exhibit 1) and the materials identified in the attached index, constitutes this determination. The Clean Water Act regulates discharges of pollutants into areas defined as waters of the United States by Section 502(7) of the Act. Regulations promulgated to implement Section 404 of the Act include within the definition of waters of the United States areas known as “wetlands.” Wetlands are defined in 33 CFR Part 323.2(c) to be: those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Based on the evaluation of the tract documented by the reports and data listed in the index and application of the definition and regulation under the Clean Water Act, the areas of the subject tract determined to be waters of the United States are shown in green on the attached map entitled “Government Determination of Wetlands in the Lake Long Tract.” The area determined herein to be waters of the United States approximates the area of annual flooding on this tract. Methodology The following is a discussion of the methodology used in applying the regulatory definition of “wetlands” to the facts of this case. In applying the definition of wetlands, vegetation, inundation by water, and saturated soils are all relevant factors. While vegetation is perhaps the most important factor in applying the definition, it cannot be viewed in isolation. The preamble to the regulations (Fed.Register, Vol. 42, No. 138 — Tuesday, July 19, 1977) explains that the reference to “vegetation typically adapted for life in saturated soil conditions” replaces an earlier version which had created a technical loophole by describing the vegetation as that which requires saturated soil conditions for growth and reproduction, thereby excluding many forms of plants that are prevalent in an inundated or saturated area but that do not require saturated soil from a biological standpoint for their growth and reproduction. Thus, the 1977 definition highlights the fact that wetland vegetation is not limited to species which require saturated soil (obligate hydrophytes) but also includes species which have adapted to life in saturated soil but may grow elsewhere (facultative hydrophytes). Because some of these latter species may sometimes grow in soils that are only rarely saturated, the significance of their presence should be established. This can be done by determining, from inundation or soil data, whether the moisture regime in which they are found is sufficient to require adaption. Sometimes obligate hydrophytes are found in association with facultative hydrophytes; sometimes the majority of plants present are facultative hydrophytes. Therefore, our methodology to determine wetlands under the regulation considers all of the elements identified in the regulatory definition to ensure, first, that all appropriate areas are included, and second, that no inappropriate areas are included. We disagreed with the methodologies suggested by the Vicksburg District of the Corps of Engineers, the National Forest Products Association, and the non-Federal defendants because they resulted in excluding areas containing species which meet the test established by the regulation. They concentrated on unambiguous species (obligate hydrophytes) and did not properly use soil and hydrology and other scientific data to verify the significance of the other species on the tract. The Environmental Defense Fund (“EDF”) and Fish and Wildlife Service (“FWS”) included some areas not meeting the definition. They recommended the inclusion of the high alluvial ridges on the basis of vegetation alone, because of the close functional relationship of the ridges to the adjacent wetland. These and other points of disagreement are detailed below. Application of Methodology In order to apply this methodology to the Lake Long tract, additional scientists supplemented the data originally collected by the Vicksburg District of the Corps of Engineers (Vicksburg). The Vicksburg data included identification of species along a number of transects, and an extrapolation of inundation extent and duration based on a single reference point at the lower end of the tract. EPA also consulted an ecologist, a botanist, a plant taxonomist, two soils scientists and a geomorphology/hydrology expert. These scientists conducted site visits, made aerial observations, took soil samples, and reviewed existing records of the Soil Conservation Service and the Corps. Their conclusions were analysed with the assistance of John Clark, the executive secretary of the National Wetlands Technical Council. Drs. Radford, Correll, Wharton, Frederickson, Krai, Palermo, Huffman, and Reed all agree that the entire tract is characterized by a prevalence of wetland vegetation (or was prior to the recent clearing operations.) They disagreed with Vicksburg’s consultants (Drs. Holloway and Rhodes) who stated that only one-third is so characterized, because the latter did not give sufficient weight to other species typically adapted to saturated soil conditions, including green ash and Nuttall’s oak. The reports of Drs. Holloway and Rhodes suggested that they were in fact still applying the obsolete standard of vegetation requiring saturated soil conditions. Vicksburg’s selection of species to rely on is also inconsistent with the Preliminary Guide to Wetlands of the Gulf Coastal Plain, prepared by the U.S. Army Corps of Engineers Waterways Experimental station in consultation with EPA and with the practice of several other Corps of Engineers Districts. The list of species in Dr. Radford’s report is more appropriate than that used by Vicksburg’s consultants. In order to verify the significance of non-obligate species appearing on the tract, the additional factors of saturation and inundation were considered. Since geomorphology, soil type, and sources, extent and duration of inundation influence the drainage pattern and duration of inundation, and therefore influence the moisture content of the soil, these factors were examined. The work of Dr. van Beek shows that the topography and alluvial characteristics of the site were such as to promote inundation of areas outside the areas delineated by Dr. Rhodes and Holloway at frequencies and durations sufficient to support typically adapted wetland plants. Further confirmation that these areas were sufficiently inundated to support wetland vegetation was provided by Dr. Whelan’s evidence of soil impermeability and mottling indicating prolonged annual saturation of these soils. Dr. van Beek found a similar but slightly larger extent of expected annual flooding than did Vicksburg’s expert for several reasons. For example, Dr. van Beek concluded that because of poor natural drainage some areas retained water longer than others, and since Lake Long effectively marked the line between two distinct drainage systems, separate river gauges should be used in calculating the flooding and drainage for these two areas. Dr. Van Beek concluded that the Vicksburg estimates of extent, frequency and duration of flooding did not adequately consider the effects of watershed delivery or the intricate alluvial meander topography of the area, and therefore somewhat understated the role of inundation. Those portions of the tract which the above evidence indicated were sufficiently saturated to support wetland vegetation and which the botantists [sic] reported did in fact support such vegetation are included as wetland areas in this determination, in accordance with the methodology described above. In addition to hydrology, we considered the identity and distribution of soil types on the tract. Much of the tract consists of soil types generally recognized as wetland soils because of their tendency to hold moisture and drain poorly. Moreover, these soil types generally occur in the areas which flood most frequently. The high alluvial ridges, on the other hand, consist of soils, which are welldrained and not considered wetland soils. In other areas wetland and probable non-wetland soils were so interspersed that it would be unrealistically difficult from a soils standpoint to separate them. Since those interspersed, non-wetland soils areas were characterized by wetland vegetation and met the inundation criteria, they were classified wetlands on that basis alone. Moreover, Dr. Patrick noted that while the various soil types on the Lake Long tract were similar to those in other flood plain areas in Louisiana, there was evidence of more flooding and wetter conditions on the instant tract than in those other areas. A majority of the tract consisted of soil types which are considered to support and confirm wetland vegetation. While Vicksburg concluded that soil types did not always correlate with wetland vegetation, this conclusion was based on Vicksburg’s more restricted list of wetland indicator species. In accordance with the methodology outlined above, the areas which both our soils and vegetation data indicated were wetlands were included in the portion of the tract determined to be wetlands under section 404. Thus, the area shown as wetlands on Exhibit I consists of those areas where the evidence showed that the presence of wetland species was confirmed by either inundation or saturated soils, or (most commonly) by both. The areas where inundation confirms the presence of typically adapted vegetation correspond very closely to the areas where soil type confirms the vegetation. This similarity reflects the interplay among these factors. Because of the contour of the land and the different soils deposited at different times, the edge of the wetland determined in this way is not a straight line but instead resembles a series of fingers, which would be very difficult to trace on the land itself. Therefore, the line has been straightened out somewhat. This will greatly increase the ease of application and enforcement, while excluding only small “fingertips” of wetlands and including only small “fingertips” of ridges at the edge of the larger bodies of wetlands. Other major points considered Consideration was given to the propriety of the use by Vicksburg of land elevation above MSL to identify wetlands outside the specific areas where vegetation was analyzed. The consensus of the scientists consulted by EPA was that it was inappropriate to assume that the demarcation between wetlands and uplands would necessarily occur at a given elevation throughout the tract. Given the intricate alluvial-meander topography and the multiple sources of inundation, a projection of wetlands based strictly on elevation may overlook numerous higher areas meeting the vegetation, soil and inundation test of the regulation and may include other areas failing the test. Inundation of this area occurs not only as a result of Red River overflow but also from heavy rainfall and associated run-off from adjacent areas. The National Forest Products Association and non-Federal defendant submissions generally agreed with the Vicksburg methodology and conclusions. Therefore, we generally accepted or rejected their material for the reasons given above. The Association and non-Federal defendants objected to EDF’s approach on the grounds that, by calling all bottomland hardwoods wetlands, EDF was giving too much weight to inundation and/or was in actuality applying an inappropriate FWS definition. Since the instant determination does not use the FWS’s National Wetlands Inventory definition and is not taking the position that all bottomland hardwoods are automatically section 404 wetlands (whether or not EDF and FWS do), these objections are not pertinent to this determination. As shown above, this determination is clearly based on the section 404 definition and reflects consideration of vegetation and soils as well as inundation. Inundation alone has not been used to determine the existence of wetlands. We considered the submissions of EDF and the Fish and Wildlife Service, which generally pointed out the shortcomings in the Vicksburg approach discussed above, (e.g. undue reliance on obligate hydrophytes, insufficient use of inundation and soils data to confirm adaption of other species, and simplistic use of elevation). The area of major disagreement with EDF concerns the Lake Long ridge. While it may be true that this ridge “is not a system which would exist in isolation away from other wetlands,” it does not meet either the inundation or soil elements of the regulatory definition and should not be included as part of a section 404 wetland determination. Similarly, while we agreed with Fish and Wildlife that the regulation required consideration of more than just vegetation, and that the whole tract could be considered a system in some senses, we concluded that consideration of the relevant regulatory factors indicated that only the large majority, not the entirety, of the tract was section 404 wetlands. In sum, after considering the data collected in this case, pre-existing records of the Fish & Wildlife Service and Soil Conservation Service, the submissions of numerous scientists from many disciplines concerning both the facts in this case and the application of the regulatory definition to those facts, and the arguments of interested parties, we have concluded that the area delineated in green on Exhibit 1 constitutes the wetlands on the Lake Long tract for the purposes of the Clean Water Act. Activities During the hearing on January 17, 1979, counsel for the government informed the Court that the government would submit a statement concerning activities requiring a section 404 permit in this case. A section 404 permit is not required for the shearing of trees where no earth (other than de minimis) is moved in the process and the trees are promptly removed through burning or other means. However, under the facts of this case as they are known to the government, a section 404 permit will be required for construction of drainage ditches in the wetland area delineated by the government in Exhibit I. While it is the government’s understanding that the non-Federal defendants do not plan to build any dikes or levees in the waters of the United States, permits will be required if their plans change. Plowing, discing, and raking of the sort observed on the tract so far will not require a permit. . The private defendants are the owners of the land that is the subject of this litigation. For a complete list of the individuals, see Avoyelles Sportsmen’s League, Inc. v. Alexander (Avoyelles II), 511 F.Supp. 278, 280 n. 2 (W.D.La. 1981). As discussed infra, Elder Realty Co., one of the original defendants in this lawsuit, sold its land during the proceedings below. The Louisiana Landowners Association and the Louisiana Department of Natural Resources were also permitted to intervene as defendants in this action. . The federal defendants are United States Army Corps of Engineers and Environmental Protection Agency officials. For a complete list of the original individuals, see Avoyelles II, 511 F.Supp. at 280 n. 3. The individuals have changed with the change in presidential administrations. . This Act was originally called the Federal Water Pollution Control Act. See S.Rep. No. 1236, 92d Cong., 2d Sess. 99 (1972), U.S.Code Cong. & Admin.News 1972, p. 3668, reprinted in Environmental Policy Division of the Congressional Reference Service, 1 A Legislative History of the Water Pollution Control Act Amendments of 1972 (hereinafter cited only to “Legislative History”), at 282 (Senate Public Works Comm. Print 1973). In 1977, Congress approved the shortened “Clean Water Act” title. H.Rep. No. 830, 95th Cong. 1st Sess. 1 (1977), U.S.Code Cong. & Admin.News 1977, p. 4326, reprinted in 3 Legislative History, at 185. . Sometime before the defendants began their landclearing activities, loggers had harvested much of the commercially valuable hardwoods in the area. . The plaintiffs are a number of environmental groups and one interested individual. For a complete listing, see Avoyelles II, 511 F.Supp. at 280 n. 1. . Section 505(a) of the CWA provides for “citizen suits” challenging violations of the Act and administrative failure to perform a nondiscretionary duty: (a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf— (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) against the Administrator where there is alleged a failure of the Administrator to perform any action or duty under this chapter which is not discretionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title. 33 U.S.C. § 1365(a) (1976). . The plaintiffs also claimed violations of section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 (1976), and La.Civ.Code arts. 667, 857 (West 1980) (Article 857 was repealed by Act of 1977, No. 169 § 1). The district court did not reach these claims because it concluded that a permit was required under the CWA, and the claims have apparently been abandoned on appeal. . Section 301(a) provides: Except as in compliance with this section and sections 1312, 1316, 1317, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful. 33 U.S.C. § 1311(a) (1976). Section 404(a) provides: The Secretary may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites. Not later than the fifteenth day after the date an applicant submits all the information required to complete an application for a permit under this subsection, the Secretary shall publish the notice required by this subsection. 33 U.S.C. § 1344(a) (Supp. V 1981). . Section 402 provides in relevant part: (a)(1) Except as provided in sections 1328 and 1344 of this title, the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a) of this title, upon condition that such discharge will meet either all applicable requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343 of this title, or prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this chapter. (2) The Administrator shall prescribe conditions for such permits to assure compliance with the requirements of paragraph (1) of this subsection, including conditions on data and information collection, reporting, and such other requirements as he deems appropriate. 33 U.S.C. § 1342 (1976 & Supp. V 1981). . Now that we have set out the alleged violations, perhaps a brief explanation is in order of why landclearing activities on wetlands might violate the Clean Water Act. The CWA provides for regulation of the discharge of pollutants into “navigable waters.” The term “navigable waters” is defined by the statute as “waters of the United States, including territorial seas.” 33 U.S.C. § 1362(7) (1976). Pursuant to its authority under 33 U.S.C. § 403 (1976) (Rivers and Harbors Act) and 33 U.S.C. § 1344, the Corps, in cooperation with the EPA, has further defined the term “waters of the United States” to include wetlands “adjacent” to “navigable waters,” and “wetlands ... the degradation of which could affect interstate commerce.” 33 C.F.R. § 323.2(a)(1)-(5) (1982). See also 40 C.F.R. § 230.3(s) (1982); United States v. Holland, 373 F.Supp. 665 (M.D.Fla.1974). . We have held that enforcement of the Clean Water Act is not a “mandatory duty.” Sierra Club v. Train, 557 F.2d 485 (5th Cir.1977). . During the course of this litigation, the EPA and the Corps reached an interagency agreement that the EPA should have the responsibility for making the final wetlands determination. The Attorney General of the United States subsequently issued an opinion in which he agreed that the “ultimate administrative authority to determine the reach of the ‘navigable waters’ for the purposes of § 404” belonged to the EPA. 43 Op. Att’y Gen. No. 15 (September 5, 1979). While the private defendants have challenged the scope of the EPA’s determination and the agency’s methodology, they do not question the EPA’s ultimate authority to make a final wetlands determination. . See Avoyelles II, 511 F.Supp. at 293, for a map showing both the EPA’s and the district court’s wetlands determinations. . For example, as discussed infra, the plaintiffs are now the parties who contend that the district court’s de novo review of the wetlands determination was appropriate because the wetlands issue was jurisdictional. They did not even challenge the EPA’s final wetlands determination below, although they believed that it was overly conservative. 2 Record at 462. The jurisdictional argument for de novo review was originally raised by the private defendants. 6 Record at 1647. The private defendants now concede that “the Court below was without power to substitute its own wetlands determination for that made by the agency. The role of the Court ended upon a finding that the jurisdictional determination made by the agency was not proved. Remand was the only appropriate judicial action.” Louisiana Landowners Association Reply Brief at 23 n. 21. Perhaps the parties’ about-face may be explained by the fact that, in the end, de novo review appears to have benefited the plaintiffs while harming the private defendants. . As discussed infra, the private parties have suggested instead that de novo review was available because the determinations in the case concerned the agency’s jurisdiction. . The plaintiffs suggest that the federal defendants waived their standard-of-review claim by agreeing to participate in the trial on the wetlands issue. Avoyelles Sportsmen’s League Brief at 53. In Di Vosta, supra, the plaintiff argued that the government had agreed to de novo review by submitting the case to the district court on stipulated evidence. We found no merit in this argument since the parties cannot agree to expand the jurisdiction of the federal courts. 488 F.2d at 679 (citing American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951)). . The landowners suggest that we need not defer to the agency’s scientific expertise in this case because the agency relied on outside consultants. As long as the agency conducts its own independent and thorough review of the consultants’ report, the agency’s reliance on outside reports is within its discretion and does not change the standard of review. See Save Our Wetlands v. Sands, 711 F.2d 634 at 635-642 (5th Cir.1983) (Corps may rely on outside consultants in preparation of environmental impact statements); Buttrey, supra, 690 F.2d at 1185 (Corps’ wetlands determination reviewed under arbitrary and capricious standard where Corps relied on information supplied by other individuals and agencies). . The controversy in this case concerns whether the vegetation indicative of wetlands is limited to “obligate hydrophytes” — in particular, Bald Cypress, Black Willow, Button Bush, Swamp Privet, Water Elm, and Water Tupelo— or whether “facultative hydrophytes” — including Green Ash and Nuttal’s Oak — are also wetlands indicators. The obligate hydrophytes exist in deep swamp areas or cypress swamp areas, which are inundated and water dominated most of each year. The facultative hydrophytes cannot withstand such extended periods of inundation, but can survive substantially shorter periods of intermittent inundation and saturation. . The Vicksburg consultant, Dr. Rhodes, believed that only the obligate hydrophytes were wetlands indicators, Admin. Record, Tab 3.17, and he determined that approximately 35% of the Lake Long Tract was a wetland. Id. The EPA’s expanded analysis of vegetation, soil and hydrology, resulted in a determination that approximately 80% of the tract was a wetland. See Final Wetlands Determination, 2 Record at 372. . Interestingly enough, the State of Florida, which also has extensive wetlands within its borders, has participated in this litigation as an amicus curiae in support of the plaintiffs’ position, i.e., the position that expands the federal agencies’ jurisdiction over state lands. . Section 553 provides: (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include— (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsection does not apply— (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection. (d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except— (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. 5 U.S.C. § 553 (1976). . We have cited the most recent edition of the administrative regulations except where recent changes in the regulations might render such citations inappropriate. . Section 551(4) provides: (4) “rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing — 5 U.S.C. § 551(4) (1976). . See also CBS, Inc. v. United States, 316 U.S. 407, 418-20, 62 S.Ct. 1194, 1200-02, 86 L.Ed. 1563 (1942); Pickus v. United States Board of Parole, 507 F.2d 1107, 1111-13 (D.C.Cir.1974); Lewis-Mota v. Secretary of Labor, 469 F.2d 478, 481-82 (2d Cir.1972); Texaco, Inc. v. Federal Power Commission, 412 F.2d 740, 743-45 (3d Cir.1969). . The 1977 amendments were promulgated in compliance with the APA’s rulemaking procedures. See 42 Fed.Reg. 37122 (July 19, 1977). . We note that less than a year elapsed between the promulgation of the 1977 definition and the commencement of this litigation. Thus, the agencies were in the midst of “filling in the interstices” of the definition when they were asked to make their final wetlands determination. The Supreme Court stated in Chenery, supra, that an agency cannot be forced to apply the old regulations while it is formulating the new ones. 332 U.S. at 202, 67 S.Ct. at 1580 (“To hold that the Commission had no alternative in this proceeding but to approve the proposed transaction, while formulating any general rules it might desire for use in future cases of this nature, would be to stultify the administrative process. That we refuse to do.”). . Heightened deference is due an agency’s interpretation of “its own” regulations. Although here it was the EPA that applied the Corps’ definition in making the final wetlands determination, we see no reason to lessen our deference in this case. The methodology was developed through consultations between the Corps and the EPA. Further, the EPA subsequently added the same definition to its own regulations. 40 C.F.R. §§ 230.3(t), 230.41(a)(1) (1982). On appeal, both agencies have offered the same interpretation of “their own” regulations. The private landowners contend that they should have been permitted to present testimony at trial from certain agency officials about how and why the Corps and the EPA arrived at their agreement. We find no merit in this contention. The EPA explained the reason for its choice of methodology in its final wetlands determination. An inquiry into the mental processes of administrative decisionmakers is generally to be avoided. Where administrative findings are made contemporaneously with the decision, there must be a strong showing of bad faith or improper behavior before a court may go behind those findings. Overton Park, supra, 401 U.S. at 420, 91 S.Ct. at 825; accord Camp, supra, 411 U.S. at 143, 93 S.Ct. at 1244. No such showing has been made here. . The landowners read the word “technical” as a synonym for “minor.” The word may also be understood to suggest a scientific change in the sense of “technical expertise.” . We note that the Corps recently decided not to revise its wetlands definition even though it had received many comments on the definition. 47 Fed.Reg. 31795 (July 22, 1982). . See also 1 Legislative History, at 250 (statement of Rep. Dingell, member of the Conference Committee). . The Senate also defeated Senator Bentsen’s attempt to amend section 404 to restrict application of the permit program to waters navigable in fact and their adjacent saline or freshwater wetlands. 4 Legislative History, at 901-50. . See, e.g., Weiszmarm v. District Engineer, 526 F.2d 1302 (5th Cir.1976) (Corps’ jurisdiction extends to artificially created canals); P.F.Z. Properties, Inc. v. Train, 393 F.Supp. 1370 (D.D.C.1975) (mangrove wetlands fall within Corps’ jurisdiction under section 404); Natural Resources Defense Council, Inc. v. Callaway, 392 F.Supp. 685 (D.D.C.1975) (striking down Corps’ narrow view of its jurisdiction under section 404); United States v. Phelps Dodge Co., 391 F.Supp. 1181, 1187 (D.Ariz. 1975) (normally dry arroyos through which water may flow within Corps’ jurisdiction where water will ultimately end up in public waters); United States v. Holland, 373 F.Supp. 665, 674 (N.D.Fla.1974) (mangrove wetlands within Corps’ jurisdiction). . The landowners appear to have abandoned the claim, persuasively addressed by the district court below, that the CWA as applied would be beyond the scope of Congress’ power under the commerce clause of the United States Constitution, U.S. Const, art. 1, § 8. See Avoyelles II, 511 F.Supp. at 286-87. They now contend that Congress simply did not intend to exercise its power to regulate all discharges affecting interstate commerce. See United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941) (Congress’ power under commerce clause extends to intrastate activities affecting interstate commerce). As should be apparent from our previous discussion, we find no merit in this argument. See Buttrey v. United States, 690 F.2d 1186, 1189 (5th Cir. 1982) (Congress’ delegation of dredge- and-flll permitting authority to Corps within commerce clause power); United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir. 1979) (extension of CWA jurisdiction to cover filling activities adjacent to inland lakes visited by interstate travelers within commerce clause power); Leslie Salt Co. v. Froehlke, 578 F.2d 742, 755 (9th Cir.1978) (“navigable waters” within meaning of CWA to be given “broadest possible interpretation under Commerce Clause”); United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1327-28 (6th Cir.1974) (control over non-navigable tributary within commerce clause power); Holland, supra, 373 F.Supp. at 672-73 (M.D.Fla.1974) (extension of CWA to mangrove wetlands within commerce clause power). . One expert believed that 60% of the tract was a wetland, while the estimates of the other members of the EPA task force ranged from 90-98%. . The landowners also suggest that the EPA improperly examined the three factors — soil, hydrology, and vegetation — in isolation. Contrary to this suggestion, the EPA’s decision was based on the complex interrelationships among the three factors. . The landowners have pointed out a discrepancy between Dr. van Beek’s and Dr. Combs’ testimony at trial about hydrology. This minor discrepancy does not significantly undermine the agency’s conclusions. The landowners also attack Dr. van Beek’s credentials; they emphasize his lack of a degree in hydrology from an American institution. Dr. Van Beek had studied hydrology in the Netherlands; the fact that he studied outside of the United States certainly does not render him incompetent. . For example, the federal defendants suggested in their final wetlands determination that “de minimis” discharges of pollutants might not require a § 404 permit. But see Minnehaha Creek Watershed District v. Hoffman, 597 F.2d 617, 626-27 (8th Cir.1979) (rejecting district court’s conclusion that “significant alteration in water quality must be demonstrated before the addition of a particular substance to navigable waters can be classified as the discharge of a pollutant”). Had the Corps been permitted to make the initial determination, it might have concluded that the permit should issue because of the de minimis impact of the activities, a factor that it was free to consider in making its determination, rather than suggesting that no application need be made in the first place. . Landclearer Herbert Costello testified that he used only v-type cutting blades on his bulldozers, and that these blades could not dig up chunks of dirt. 33 Record at 162, 169, 174, 184, 194. He also denied filling in the sloughs, id at 171-72, 222, although he admitted digging one drainage ditch and a number of holes. Id. at 187-88, 223. Soybean farmer Bill Easterling stated that he had not leveled the ground, id. at 243, or used dirt blades that would have moved significant portions of earth. Id. at 251. He claimed that he did not intend to dig any drainage ditches or use any fertilizer. Id. at 246, 241. He also assured the court that he uses only “EPA-approved” pesticides. Id. at 241. . Stephen Forsythe, a United States Fish and Wildlife Service biologist, had observed the landclearing activities in September, 1978. He testified that the trees and vegetation were cut down at or slightly below the ground, pushed into massive windrows and burned. He claimed that large chunks of dirt had been tom up and that a number of sloughs, which had collected rainwater in the past, had been filled in. 9 Record at 7-34. His testimony was corroborated by a number of expert and lay observers: Ray Palermo, an employee of the Louisiana Department of Wildlife and Fisheries, 16 Record at 7-22; John Maillet, 31 Record at 107-22; and Lyle Gremillion, id. at 129-38. Other experts testified that additional drainage ditches would be required if the tract was to be used for soybean farming. 11 Record at 9-15, 43-44 (testimony of Michael Matterne, agronomy expert); 15 Record at 6-18 (testimony of Harold LaHaye, Department of Natural Resources forester). . After persistent questioning at oral argument, the federal defendants explained further that, in their view, if the vegetation was cut down without significant disturbance of the soil and then removed to dry land, no permit would be required. They further explained that, in their view, if the vegetation were cut down and put back into the wetlands soil, however, then there would have been a redeposit in the wetland, and hence a discharge. . It is equally clear from the record that the activities in this case did not involve a “de minimis” disturbance; hence we have no reason to determine whether de minimis disturbances are exempted from the Act. See Minnehaha, supra, at Note 37. . See Avoyelles I, 473 F.Supp. at 533-35 (quoting extensively from the Corps’ regulations, 33 C.F.R. §§ 320.4(b)(1), (2), (3), & (4)). . In National Wildlife, supra, the EPA argued that an activity was a discharge requiring a § 402 permit only if materials were introduced into the water “from the outside world.” 693 F.2d at 165. No one has urged here that the materials must come from an external source in order to constitute a discharge necessitating a § 404 permit, nor would we expect them to, since § 404 refers to “dredged” or “fill” material. As discussed infra, “dredged” 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. We note further that the National Wildlife court chose the EPA’s interpretation over the district court’s in part out of deference to a long and consistently held agency interpretation. Here, the agencies’ views about whether the landclearing activities would require a permit have not been completely consistent. In its final wetlands determination, the EPA concluded that the shearing, plowing and discing activities would not require'a permit, although it admitted that this view had not been given any thorough consideration. See National Wildlife, 693 F.2d at 168 (“ ‘thoroughness of an agency’s reasoning’ bears on the proper degree of deference”). Now, the Corps and the EPA agree with the district court that most of the activities do require a permit. This “change,” however, appears to have resulted from the agencies’ changing view of the facts, rather than any alteration in their view of the law. Since the agencies do not have any relevant disagreement with the district court, we need not choose between the agencies’ and the district court’s interpretations. We hold only that the agencies’ interpretation that redepositing materials may be a discharge requiring a § 404 permit is “ ‘correct’ to the extent that it can be said with complete assurance that any particular interpretation of [this] complex statute ... is the ‘correct’ one.” Natural Resources, supra, 421 U.S. at 87, 95 S.Ct. at 1485; accord, DuPont de Nemours, supra, 430 U.S. at 134, 97 S.Ct. at 978. . The district court correctly noted that § 404(f)(1) was designed to be a narrow exemption. Avoyelles I, 473 F.Supp. at 535 n. 12 (quoting the statements of Rep. Hersha during the House debates, 3 Legislative History, at 420). . The private defendants point out that if the district court is correct that § 404(f)(1) applies only to ongoing activities, § 404(f)(2) would not appear to be necessary. . We recently had occasion to distinguish between the activities that significantly change the character of the wetlands and those that do not. See Save Our Wetlands, Inc. v. Sands, 711 F.2d 634 (5th Cir.1983). In Save Our Wetlands, we specifically noted how the activities in this case had virtually destroyed the wetlands, while the construction activity in that case had not: The work in Avoyelles was intended to permanently change the area from wetlands into a non-wetland agricultural tract for row crop cultivation. All timber and vegetation were to be cut and cleared. The area was to be drained and leveled. Trees and other vegetation were to be burned and the ashes disced into the land. Nonbumable materials were buried on the plot. It was within this factual setting that the Avoyelles court found that a permit was required. One of the key elements behind Judge Scott’s decision was the fact that the work would destroy the wetlands. Here, the work involved the felling of trees with chain saws. The trees and cleared vegetation were to be windrowed and allowed to naturally deteriorate. The wooded swampland to be cleared here will be changed to swampland vegetation with shrubs, grasses and other low growth. The wetlands involved here will not be converted as in Avoyelles. The trees and vegetation to be wind-rowed will not be used to “replac[e] an aquatic area with dry land or ... changfe] the bottom elevation of a waterbody.” Save Our Wetlands, supra, at 647 (quoting Avoyelles I, 473 F.Supp. at 535). . The just compensation clause of the fifth amendment provides: “[N]or shall private property be taken for public use.” U.S. Const, amend. 5. Drs. Wharton, Radford, Correll, Whelan, Patrick and van Beek, respectively. It would be even more inappropriate to project such elevations outside the Prevot tract. Only those areas that meet the definition of the waters of the United States fall under section 404 jurisdiction, regardless of their elevation. This is not to say, however, that the portions of. the tract determined not to be wetlands are of no ecological value. It means only that they are not waters of the United States subject to regulatory control under section 404 of the Clean Water Act.

United States v. Context-Marks Corp.

ALLGOOD, District Judge: The government appeals from the district court’s refusal to grant a permanent injunction against appellees, Marks Development, Inc., et al. The government had sought to require the appellees to remove approximately 20,000 cubic yards of fill material which the government contended had been placed below the mean high water line (hereinafter MHWL) in violation of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1311(a) (the Clean Water Act). The appellees counterclaimed against the United States and the plaintiff-intervenor, the State of Florida Department of Environmental Regulation, seeking injunctive relief from prospective permitting of the subject property above the MHWL and proposing an alternative restoration plan in the event that the court found some restoration necessary. The property in question, Parcel 38, is a roughly rectangular piece of land, enclosed by Roosevelt Boulevard and comprising 52 acres in Key West, Florida. This property was purchased in June, 1972, and was to be developed in a multi-unit apartment complex and marina in accordance with the Master Plan of the City of Key West. In November of 1972, the appellees applied for and obtained a dredge and fill permit from the City of Key West. A fill operation on approximately 10 percent of Parcel 38 was commenced in November and December of 1972. During the time that this fill operation was taking place, the Randall Act, F.S. 253.135(3), which exempted property in Key West from state dredge and fill permit requirements, was in full force and effect. Also at this time, the Corps of Engineers was not exerting jurisdiction above the MHWL and did not require permits to fill above the MHWL. Historically, the Corps had not exercised its full jurisdiction in the area of the fill in question (within Roosevelt Boulevard) and had not required permits to fill below the MHWL in that area. In January, 1973, the Corps sent a cease and desist order to the appellees concerning the fill which the Corps alleged was below the MHWL. In June, 1973, the government filed a criminal information against Island in the Sun Condominiums, Inc., charging unauthorized filling. The Corporation pleaded nolo contendere and was fined $500. An application to dredge a marina in the area bounded by the fill was submitted in July, 1973. This application was considered by all the parties concerned to be an after-the-fact permit application. Appellees were denied the permit because they had been denied a water quality certification (a prerequisite for the granting of a permit) by the State of Florida. Appellees were ordered to remove the fill at this time and were so ordered again in November, 1977, after the Florida Supreme Court denied certiorari to review the state court’s decision to uphold the denial of certification. When the appellees failed to comply, this suit was brought. On January 15, 1982, the district court ordered partial restoration, additionally, the appellants were ordered to abide by the regulations in effect in December 1972 and January 1973 provided that the appellees accomplished the partial restoration at their own expense. The district court also held that the appellees were not individually liable. The government raises three issues on appeal: 1. Whether, under the facts of this case, the United States may be estopped from requiring the appellees to comply with the provisions of the Clean Water Act prior to filling wetlands situated above the MHWL. 2. Whether the appellees should be required to remove illegally placed fill material and restore the wetlands to their original condition. 3. Whether the district court improperly failed to hold the individual appellees liable for the costs of remedying a violation of the River and Harbor Act. With respect to the first issue raised by the government, the district court held that “requiring a § 404 permit for the property above the mean high water line would be a retroactive application of Corps regulations and this requirement would be unreasonable and result in a ‘manifest unjustice.’ ” (citations omitted) (emphasis in original). The court found that had the Corps not intervened in January 1973 without determining the location of the MHWL, the land above the MHWL could have been developed prior to the implementation of the Corps revised wetlands policy (33 C.F.R. § 209.120(e)(2)(iii)) which required permits for work above the MHWL, and thus would have been “grandfathered” in. In a factually similar case decided by this same panel, Buccaneer Point Estates, Inc., et al. v. United States, et al., 729 F.2d 1297 (11th Cir.1984), we held that retroactive application of the permitting requirement would not be appropriate. We affirm the similar holding of the lower court here. The trial court’s determination to order partial restoration of the filled portion of Parcel 38 rather than the total restoration sought by the government rests upon two separate grounds: (1) equitable estoppel; and (2) equitable standards for fashioning relief for the government in cases of violation of federal dredge and fill regulations. The government argues that the trial court erred in estopping the government from obtaining total restoration below the MHWL and that it abused its discretion in ordering only partial restoration. As this court finds the action of the trial court to be fully sustainable on the second ground alone, we decline to address the estoppel issue. The cases utilized by the district court in fashioning its restoration order indicate that the court should base such orders on “a complete examination of both the environmental factors involved and the practicalities of the situation.” Weiszmann v. District Engineer, U.S. Corps of Engineers, 526 F.2d 1302, 1304 (5th Cir.1976); United States v. Moretti, 526 F.2d 1306, 1310 (5th Cir.1976); see, also, United States v. Sexton Cove Estates, 526 F.2d 1293 (5th Cir.1976). The memorandum opinion of the district court reveals a careful consideration of all relevant factors. We find the government’s allegations of error with regard to the findings of fact on this issue without merit and find no abuse of discretion in the court’s order for partial restoration. As a condition for further development, the district court below ordered the individual defendants as well as the corporate developer to restore the property below the MHWL. Therefore, this court need not reach the third issue raised by the government. Accordingly, for the reasons discussed above, the decision of the district court is AFFIRMED. . Also called mean high water mark and mean high tide line. . Island in the Sun Condominiums, Inc., was formed to develop the property. . The trial court, in its memorandum opinion, referred to a trilogy of cases as setting forth the "standard for fashioning restoration” in this circuit: United States v. Sexton Cove Estates, 526 F.2d 1293 (5th Cir.1976); Weiszmann v. District Engineer, U.S. Corps of Engineers, 526 F.2d 1302 (5th Cir.1976); United States v. Moretti, 526 F.2d 1306 (5th Cir.1976) (Moretti II). . This court has held that equitable estoppel will not lie against the government when it acts in its sovereign capacity. Deltona Corp. v. Alexander, 682 F.2d 888 (11th Cir.1982); Hicks v. Harris, 606 F.2d 65 (5th Cir.1979). The district court found that the Corps’ activities amounted to "affirmative misconduct” and applied estoppel, however the "affirmative misconduct” exception to the general rule that the United States is not subject to an estoppel when it acts in its sovereign capacity has not been accepted by this circuit. See, Deltona, supra.

California v. Norton

OPINION D.W. NELSON, Senior Circuit Judge. Appellants (“United States”) granted “suspensions” of thirty-six oil leases offshore of central California pursuant to 43 U.S.C. § 1334(a)(1). The purpose of the lease suspensions was to extend the lives of the leases and to allow the lessees to “facilitate proper development of the lease[s].” 43 U.S.C. § 1334(a)(1). Without the suspensions, the leases would have expired and the lessees would have lost all production rights because the lessees had not begun production in paying quantities and the term of the leases had elapsed. Id. Appellee (“California”) asserted authority to review the lease suspensions for consistency with California’s Coastal Management Program pursuant to the Coastal Zone Management Act, 16 U.S.C. §§ 1451-1465. California also objected to the lease suspensions on grounds that the United States failed to perform an environmental review of the lease suspensions pursuant to the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370f. The United States refused to submit the lease suspensions to California for review, claiming that lease suspensions are not subject to review by California under the terms of the Coastal Zone Management Act. The United States also asserted that the lease suspensions were categorically excluded from environmental review pursuant to NEPA. California filed suit in federal district court seeking to enjoin the lease suspensions until it was afforded the opportunity to review them. California also sought to force the United States to prepare an Environmental Impact Statement (“EIS”) before approving the lease suspensions. Ten environmental groups intervened as plaintiffs with California: Natural Resources Defense Council; League For Coastal Protection; Get Oil Out!; Citizens Planning Association of Santa Barbara; California Public Interest Research Group; Sierra Club; Friends of the Sea Otter; California CoastKeeper; Santa Barbara Channel-keeper; and Santa Monica Bay Keeper, Inc. (“Environmental Groups”). The counties of Santa Barbara and San Luis Obispo (“Counties”) also intervened as plaintiffs with California. The lessees intervened as defendants with the United States: Aera Energy, LLC; Conoco, Inc.; Nuevo Energy Company; Poseidon Petroleum, LLC; and Samedan Oil Corp. (“Oil Companies”). The district court held that the approval of the lease suspensions by the United States was subject to consistency review by California pursuant to 16 U.S.C. § 1456(c)(1)(A). California ex rel. Cal. Coastal Comm’n v. Norton, 150 F.Supp.2d 1046, 1057 (N.D.Cal.2001). The district court also held that the United States did not adequately document its reliance on the claimed categorical exclusion pursuant to NEPA and ordered the United States to provide an explanation for the applicability of the categorical exclusion to these lease suspensions. Id. The United States and the Oñ Companies timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. I. Background A. The 1969 Santa Barbara Oil Spill This case implicates California’s ability to review and influence decisions of the federal government regarding oil drilling in federal waters off of California’s coast. Our decision today necessarily involves a rather long and complex textual journey through an interwoven scheme of federal and State statutes and regulations. Before we embark, we briefly recollect the failures that these environmental protections are designed to prevent by providing for substantial State involvement in federal decisions concerning offshore oil drilling. Five miles off the shore of the small beach town of Summerland, California, at 10:45 a.m. on Tuesday, January 28, 1969, crews on Union Oil Company offshore Platform Alpha were pulling the drilling tube out of well A-21 in order to assess their progress. Mud began to ooze up from the depths’ through the well shaft, signaling that something had gone wrong below. Within minutes, • tons of .mud spewed out of the top of the well propelled by a blast of natural gas. Frantic platform workers quickly capped the well, but it was too late to stop the rushing rent of oil rising from 3,000 feet below the ocean floor. The unlined walls of the well shaft gave way and oil poured into the surrounding geological formation under the sea floor. As the pressure continued to build, the oil burst upward through the roof of the Venture Anticline, ripped five long gashes in the ocean floor, and rose 188 feet through the blue-green waters of the Santa Barbara channel. The flow continued at thousands of gallons per hour for more than a week, spreading a tar-black patch seaward over eight hundred square miles of ocean. A.E. Keir Nash et al., Oil Pollution and the Public Interest: A Study of the Santa Barbara Oil Spill 1-3 (1972); Keith C. Clark & Jeffrey J. Hemphill, The Santa Barbara Oil Spill: A Retrospective (paper given at the Association of Pacific Coast Geographers 64th Annual Meeting, Sept. 14, 2001) at http:// www.geog.ucsb.edu/-jeff/sb_69oilspill; Battle Off Coast Slick Is Spreading — Planes Called In, S.F. Chron., Feb. 1, 1969 at 1; Oil Leak Presents Particularly Sticky Problem, S.F. Chron., Feb. 2, 1969 at 5. Futile Fight Against The Oil Slick, S.F. Chron., Feb. 7, 1969 at 1; Nick Welsh, The Big Spill, The Santa Barbara Independent, Jan. 26, 1989. Then on the evening of Tuesday, February' 4, the wind shifted and blew hard onshore, driving the oil into Santa Barbara harbor and fouling thirty miles of beaches up and down the coast. Futile Fight Against the Oil Slick. For weeks on end “[a] dense acrid stench clung to the shoreline as a force of 1000 men — many of them prisoners — pitchforked tons of straw onto the stained sand and murky tide to soak up the mess.” Great Oil Slick Cleanup—The ‘Impossible’ Task, S.F. Chron., Feb. 10, 1969 at 2. The cleanup efforts proved largely ineffective against the mass of oil, and thousands of sea birds were killed along with seals and other marine mammals. See Oil Slick Killing Off Wild Life, S.F. Chron., Feb. 2, 1969 at 1; Oil Thickens on Beach—‘Months of Work Ahead’, S.F. Chron., Feb. 6, 1969 at 1. By February 24, another well on Platform Alpha had blown out, and the oil-gushing fractures had spread over acres of ocean floor. County of Santa Barbara Planning and Development Energy Division, Blowout at Union Oil’s Platform A at http://www.countyofsb.org/energy/information/1969blowout.asp. The nation was confronted with an environmental disaster of unprecedented proportions 'that might have been avoided but for a failure of federal oversight. A federal regulator had approved Union Oil’s request to waive safety requirements that called for well shafts to be lined with hardened casing to prevent just the type of accident that occurred. Oil Pollution and the Public Interest at 4. Secretary of the Interior Walter J. Hickel immediately accepted some measure of responsibility, The Santa Barbara Oil Spill: A Retrospective at 3, and the White House Council on Environmental Quality later acknowledged that “[t]he federal government had largely ignored the need to protect commercial, recreational, aesthetic, and ecological values of the area.” Id. In the aftermath of the spill, California Congressman John V. Tunney took to the well of the House to declare that “ill-planned offshore oil drilling” was a manifestation of “centuries of careless neglect of the environment [that] have brought mankind to a final crossroads,” and that “the quality of our lives is eroded and our very existence threatened by our abuse of the natural world.” 116 Cong. Rec. 498 (1970). President Richard Nixon personally viewed the damage and agreed that the Santa Barbara spill “frankly touched the conscience of the American people.” The Santa Barbara Oil Spill: A Retrospective at 3. B. Statutory Background As President Nixon aptly observed, the Santa Barbara spill changed the nation’s attitudes towards the environment. Some would trace the current framework of environmental protections in substantial measure directly to the Santa Barbara spill. See, e.g., Miles Corwin, The Oil Spill Heard ‘Round The Country’, L.A. Times, Jan. 28, 1989. Of particular relevance here, the federal Coastal Zone Management Act and California’s Coastal Act followed in the wake of the spill and both provided California substantial oversight authority for offshore oil drilling in. federally controlled areas. 1. The Federal Coastal Zone Management Act California’s coastal zone includes coastal waters and adjacent shorelands, and extends three miles seaward from the State’s coast line. 16 U.S.C. § 1453; 43 U.S.C. § 1312. In the Coastal Zone Management Act, Congress granted the coastal States the right to review “Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone,” 16 U.S.C. § 1456(c)(1)(A), for consistency with the States’ Coastal Management Programs. See 15 C.F.R. §§ 930.34-930.44 (1999). If a State determines that a proposed federal activity is not consistent with that State’s Coastal Management Program and the United States disagrees, the State may seek mediation of the dispute, 15 C.F.R. § 930.44 (1999), or may seek relief in federal court, see, e.g., Akiak Native Comty. v. United States Postal Serv., 213 F.3d 1140 (9th Cir.2000). Alternatively, coastal States have the right to review any “Federal license or permit” required for activities that affect the coastal zone. 16 U.S.C. § 1456(c)(3)(A). The differences between State review under these two sections are discussed in more detail at section IV(A)(1) infra. 2. The California Coastal Act In 1972 the voters of California approved the California Coastal Zone Conservation Act by popular initiative. CEEED v. Cal. Coastal Zone Conservation Comm’n, 43 Cal.App.3d 306, 118 Cal.Rptr. 315, 319 (1974). Subsequently, the California legislature codified the protections of the initiative in the California Coastal Act of 1976. Cal. Pub. Res.Code § 30000 30900 (West 1996 & Supp.2002). The California Legislature declared that the California Coastal Act was “to provide maximum state involvement in federal activities allowable under federal law.” Cal. Pub. Res.Code § 30004. Acting under its authority pursuant to the California Coastal Act, the California Coastal Commission developed California’s Coastal Management Program, as contemplated in the federal Coastal Zone Management Act. The federal government approved California’s Coastal Management Program. Am. Petroleum Inst. v. Knecht, 456 F.Supp. 889, 893-94 (C.D.Cal.1978). Thus, California is authorized by federal law to review specified federal activities for consistency with its Coastal Management Program. 3. The Outer Continental Shelf Lands Act The Outer Continental Shelf begins at the outer boundary of the State’s coastal zone (three miles out) and extends seaward. 43 U.S.C. § 1331(a). The Outer Continental Shelf Lands Act prescribes how off shore leases for the exploration and production of oil and gas in the Outer Continental Shelf will be administered. 43 U.S.C. § 1331-1356a. The term for off shore leases is set by statute at five to ten years. 43 U.S.C. § 1337(b)(2)(A) & (B). After the initial term of the lease elapses, the lease continues in effect so long as oil and gas are being produced in paying quantities or drilling operations are underway. Id. If production or approved drilling are not underway at the end of the term, the lease expires and the leaseholder loses rights to exploit resources in the lease area. If the lessee is not able to begin production within the term of the lease, a procedure exists to avoid expiration of the lease and extend the lease term. These extensions are referred to as “suspensions.” 43 U.S.C. § 1334(a)(1). The effect of a lease suspension is to extend the life of the lease and to allow the lessee to “facilitate proper development of a lease.” Id. Lease suspensions may also be used to deal with environmental emergencies and other matters not at issue in this litigation. A The National Environmental Policy Act Signed by President Nixon just months after the Santa Barbara spill, NEPA requires that federal agencies take a “hard look” at the environmental consequences of their actions. Metcalf v. Daley, 214 F.3d 1135, 1141 (9th Cir.2000). An agency must prepare NEPA documents before any irreversible and irretrievable commitment of resources is made. Id. at. Generally, the agency is required to prepare an IS or an Environmental Assessment (“EA”) before committing resources to an action. A federal agency may adopt a “categorical exclusion” for a “category of actions which do not individually or cumulatively have a significant effect on the human environment.” 40 C.F.R. 1508.4 (2001). Generally, if an action falls within an adopted categorical exclusion the agency is not required to prepare an EIS or an EA. Id. However, an agency adopting a categorical exclusion must “provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.” Id. In such extraordinary circumstances, a categorically excluded action would nevertheless trigger preparation of an EIS or an EA. C. The 36 Leases at Issue The thirty-six leases that are the subject of this litigation were issued between 1968 and 1984. They have not yet begun producing paying quantities of oil or gas and would have expired but for previous suspensions. The latest round of suspensions, which are challenged in this lawsuit, were issued to prevent the leases from expiring in 1999. Within the boundaries of the leaseholds at issue, there have been thirty-eight exploratory wells drilled resulting in seventeen discoveries. The most recent well was drilled in 1989. The oil companies paid the United States approximately $1.25 billion for the leases. The leaseholds are located between the Channel Islands National Marine Sanctuary and the Monte-rey Bay National Marine Sanctuary, which contain many species that are particularly sensitive to the impacts of spilled oh. Most of the leaseholds are adjacent to Santa Barbara and San Luis Obispo Counties. In May of 1999, the lessees submitted requests for suspensions of all thirty-six leases. Shortly thereafter,- California informed the United States that it had determined to assert its authority under the Coastal Zone Management Act to review the lease suspensions for consistency with California’s Coastal Management Plan. The United States responded that California had no authority to review the lease suspensions because the lease suspensions in and of themselves did not have the potential to affect the land or water use or natural resources of California’s coastal zone. Despite California’s objections, the United States granted the suspension requests for the thirty-six leases without providing California an opportunity for consistency review. California also objected to the lack of NEPA review of the lease suspensions. California filed suit in federal district court alleging that the United States had failed to provide California with the opportunity to review the lease suspensions as required by the Coastal Zone Management Act and had failed to conduct required environmental review under NEPA. II. District Court Proceedings A. Federal Coastal Zone Management Act Claim In the district court, California sought to enjoin the lease suspensions until it was afforded the opportunity to review the proposed suspensions for consistency. California advanced two alternative theories. First, California argued that the Oil Companies, in applying for the lease suspensions, were applicants “for a required Federal license or permit” to conduct an activity affecting the coastal zone within the meaning of 16 U.S.C. § 1456(c)(3)(A). California ex rel. Cal. Coastal Comm’n v. Norton, 150 F.Supp.2d 1046, 1054-55(N.D.Cal.2001). Under this theory, the Oil Companies would be required to submit the proposed suspensions to California for review under the review regime prescribed by 16 U.S.C. § 1456(c)(3)(A). Alternatively, California argued that the United States’ approval of the lease suspensions was a “Federal agency activity” affecting the coastal zone within the meaning of 16 U.S.C. § 1456(c)(1)(A). Id. at 1051. Under this theory, the United States would be required to submit the proposed suspensions to California for review under the somewhat different review regime triggered by 16 U.S.C. § 1456(c)(1)(A). The district court held that the approval of the lease suspensions by the United States was a federal agency activity subject to consistency review by California pursuant to 16 U.S.C. § 1456(c)(1)(A). Cal. Coastal Comm’n v. Norton, 150 F.Supp.2d at 1053. The district court did not reach California’s alternative claim that the requests for lease suspensions by the oil companies were applications for a required federal license or permit. The district court set aside the United States’ approval of the lease suspensions requested by the oil companies, and ordered that the United States “direct” suspension of the leases for a time sufficient to provide California with a consistency determination. Id. at 1057-58. B. NEPA Claim In the district court, California sought to force the United States to prepare an EIS or an EA before approving any lease suspensions. Id. at 1056. California argued that environmental documentation was required because circumstances had changed since the original leases had been granted and since earlier environmental documentation had been prepared assessing the expected impacts of exploration and drilling activity on the leaseholds. Id. Among the changed circumstances cited by California was the expansion of the territory of the threatened sea otter towards the lease area. Id. California also argued that the United States improperly relied upon the categorical exclusion for lease suspensions. Id. The parties do not dispute that the United States properly adopted a categorical exclusion from the requirement for environmental documentation for lease suspensions pursuant to 40 C.F.R. § 1508.4. However, 40 C.F.R. § 1508.4 requires that an agency adopting a categorical exclusion “provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.” When extraordinary circumstances are present, the agency must prepare environmental documentation despite the fact that the activity in question falls within a categorical exclusion. The district court held that the United States failed to provide a reasoned explanation for its reliance on the categorical exclusion and failed to explain the inapplicability of the extraordinary circumstances exceptions to the lease suspensions. Id. at 1057. The district court held that the United States could not rely on the categorical exclusion without providing these explanations and ordered the United States to provide both of these explanations. It held that the United 18 States was not required to prepare an EIS or an EA “at this time.” Id. III. Standard of Review We review a grant of summary judgment de novo. Akiak Native Comty., 213 F.3d at 1144. Judicial review of actions under the Coastal Zone Management Act and NEPA ordinarily is governed by the Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706. Akiak Native Comty., 213 F.3d at 1144. Pursuant to the Administrative Procedure Act, agency decisions shall be set aside if “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). TV. Discussion A. Coastal Zone Management Act Claims 1. The Difference Between Consistency Review Pursuant To 16 U.S.C. § U56(c)(3) and 16 U.S.C. § If56(c)(1) Section (c)(1) provides for consistency review for federal agency activities. Section (c)(3) provides for consistency review for federal licenses or permits. Sections (c)(1) and (c)(3) are mutually exclusive because section 1456(c)(1)(A) provides that an “activity shall be subject to this paragraph unless it is subject to paragraph (2) or (3).” Under (c)(1) review, the federal agency makes a “consistency determination” and submits it to the State. Under (c)(3) review, the applicant for the license or permit prepares a “consistency certification,” which is submitted to the State. In its California Undeveloped Leases Briefing Book, dated Nov. 2, 1999, the Minerals Management Service describes the respective requirements of (c)(1) and (c)(3) review. Section (c)(1) review is described as follows, using a lease sale as an example of a federal agency activity: States review OCS lease sales for Federal consistency. The MMS [Minerals Management Service] describes how the sale is consistent “to the maximum extent practicable” with the Program’s enforceable policies in a “consistency determination.” Each affected State must agree with or disagree with the consistency determination within a designated time period. If the State agrees, MMS can hold the lease sale. If the State disagrees, it must describe the inconsistency and any alternative measures that would allow the sale to be consistent to the maximum extent practicable with the Program’s enforceable policies. The CZMA [Coastal Act] allows MMS to proceed with the lease sale notwithstanding any unresolved disagreements or MMS can ask NOAA [National Oceanic and Atmospheric Administration] for mediation to work out differences. If the State is dissatisfied with the agency’s resolution of the issues, it may seek judicial review in federal district court. Notwithstanding any determination by a court that a federal agency activity is not in compliance with a State’s Coastal Management Program, the President may exempt from compliance those elements of the federal agency activity that are found by the federal court to be inconsistent. 16 U.S.C. § 1456(c)(1)(B). The briefing book goes on to detail the review procedure under section (c)(3) for exploration and development and production plans. It explains that review of permits[and licenses] is similar: States review OCS exploration and development and production plan (Plans) for Federal consistency. The OCS lessee prepares a “consistency certification” that is submitted to us when filing the proposed Plan. We send a copy of the Plan and certification to the affected States for Federal consistency review and decision. Each State decides whether the Plan is consistent with enforceable policies of its Program. The State must concur with or object to the lessee’s consistency certification within a designated time period. If the State does not meet the deadline, CZMA provisions render the Plan consistent (“conclusively presumed”). If the State concurs, we approve the plan and the lessee can begin activities. If the State objects, we are prohibited from approving the plan and - 1. the lessee can appeal the State’s decision to the Department of Commerce or 2. the lessee can amend the plan and resubmit it to MMS for approval and to- the State for Federal consistency review. Before deciding issues on administrative appeal, the Secretary of Commerce must provide for “reasonable opportunity for detailed comments from the Federal agency involved and from the state.” 16 U.S.C. § 1456(c)(3)(A). 2. Approval Of The 36 Lease Suspensions Is A Federal Agency Activity Requiring Submission of A Consistency Determination To California For Review Pursuant To 16 U.S.C. § 1156(c)(1)(A) 16 U.S.C. § 1456(c)(1)(A) requires that the United States must allow California to review the consistency of “[e]ach Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone.” 16 U.S.C. § 1456(c)(1)(A). The United States does not dispute that activities that will ultimately take place under the extended leases will affect the natural resources of the coastal zone. The United States also does not dispute that approval of lease suspensions is a federal agency activity within the meaning of the statute. However, the United States argues that reviewing the lease suspensions for consistency would be duplica-tive, because any activities that take place under the extended terms of the leases will themselves be reviewed for consistency when exploration plans or development and production plans are approved. The United States points out that any exploration activities must be preceded by submission of an exploration plan. 43 U.S.C. § 1340(e)(2). These plans are formal documents that must be submitted to California for consistency review. 16 U.S.C. § 1456(c)(3)(B); 43 U.S.C. § 1340(c)(2). Once oil or gas is discovered, a development and production plan must also be submitted before production commences and the development nd production plan must also be submitted to California for consistency review. 16 U.S.C. § 1456(c)(3)(B); 43 U.S.C. § 1351(d). The United States argues that California seeks repeated and 'duplicative reviews: once when the lease is suspended and then again when each activity affecting the coastal zone is approved in exploration plans or development and production plans. The United States asserts that this duplicative review is contrary to congressional intent. On the United States’ view, Congress expressly barred repeated or du-plicative review of activities described in exploration plans or development and production plans. Congress did mandate that once an exploration plan or development and production plan is submitted to California and found to be consistent with California’s Coastal Management Plan, the subsidiary licenses and permits needed to carry out the activities specifically described in the plan are not themselves subject to another .round of consistency review. 16 U.S.C. § 1456(c)(3)(B). From this, the United States goes on to extrapolate that federal agency activities antecedent and prerequisite to exploration and development and production plans (i.e., the lease suspensions) could not logically be subject to consistency review because consistency review occurs once, and once only — -at the exploration and development and production plan stage. However, it does not follow that lease suspensions, which are not subsidiary to exploration and development and production plans, are not subject to consistency review. In fact, the same extrapolation used here by the United States — that because activities following exploration and development and production plans are not subject to consistency review, those activities preceding the plans aren’t either — has been specifically rejected by Congress. In 1984, the Supreme Court held that a lease sale (the original sale of the lease as opposed to the lease extensions at issue here) was not subject to consistency review by California. Sec’y of the Interior v. California, 464 U.S. 312, 343, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984). In reaching this decision, the Supreme Court held that specific activities affecting the coastal zone would be reviewed at the exploration plan or development and production plan stage and that Congress intended to limit State consistency review to these later two phases of offshore oil and gas development. Id. at 337, 104 S.Ct. 656. In 1990, Congress amended the statute specifically “to overturn the decision of the Supreme Court in Secretary of the Interior v. California, 464 U.S. 312, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984), and to make clear that Outer Continental Shelf oil and gas lease sales are subject to the requirements of section 307(c)(1) [16 U.S.C. § 1456(c)(1)].” H.R. Conf. Rep. No. 01-508 at 970 (1990). In subjecting lease sales to consistency review, Congress has made it clear that the statute does not prohibit consistency review of federal agency activities that are not subsidiary to exploration and development and production plans. The exploration plan and development and production plan stages are not the only opportunities for review afforded to States under the statutory scheme. In determining that these lease suspensions are subject to review, we note that the leases at issue have never been reviewed by California. Because these leases were issued prior to 1990, when Congress amended the statute to make clear that lease sales are subject to consistency review, California was not afforded an opportunity to review the leases. These lease suspensions represent a significant decision to extend the life of oil exploration and production off of California’s coast, with all of the far reaching effects and perils that go along with offshore oil production. As the Counties point out, all but one .of the lease sales for these leaseholds predate the approval of California’s Coastal Management, Plan. One of the leases dates back all the way to 1968. Subsequent to the sale of the leases, the Counties have enacted policies regarding oil transportation that have in turn been certified by the California Coastal Commission. The leases have never been reviewed for consistency with these policies. The Environmental Groups point out that numerous other factors have changed since the leases were sold, including the expansion in the range of the threatened sea otter toward the lease area and the creation of the Monterey Bay Marine Sanctuary. Based on the foregoing, we affirm the district court’s decision that the suspensions of these thirty-six leases are subject to consistency review pursuant to 16 U.S.C. § 1456(c)(1)(A). Although California provides arguments in the alternative for review pursuant to 16 U.S.C. § 1456(c)(3)(A), California acknowledges in its brief that the district court properly found that review should be under 16 U.S.C. § 1456(c)(1)(A). The Environmental Groups also provide stop-gap alternative arguments for review under 16 U.S.C. § 1456(e)(3)(A); however, they acknowledge that the lease suspensions should be reviewed under section (c)(1) rather than (c)(3). At oral argument, California and the Environmental Groups confirmed that it is their position that section (c)(1) is the applicable provision. For their part, the Oil Companies devote their entire brief to the proposition that section (c)(3) is not applicable. Although they mention in a footnote that they do not concede the applicability*of section (c)(1), they provide no argument to refute the applicability of section (c)(1). We note that Congress specifically subjected lease sales to section (c)(1). Although a lease suspension is not identical to a lease sale, the very broad and long term effects of these suspensions more closely resemble the effects of a sale than they do the highly specific activities reviewed under section (c)(3). We also note that for some of the leases being extended new exploration plans will be issued and these plans will be subject to section (c)(3) review. For other leases, existing exploration plans will be revised, which may also trigger section (c)(3) review. Thus, section (c)(3) review will be available to California at the appropriate time for specific individual new and revised plans as they arise, and section (c)(1) review is available now for the broader effects implicated in suspending the leases. This phasing of review fits closely the expressed intent of Congress in subjecting the analogously broad implications of lease sales to (c)(1) review and specific plans to (c)(3) review. We are therefore convinced that section (c)(1) applies to these lease suspensions. Because sections (c)(1) and (c)(3) are mutually exclusive, (c)(3) does not apply. We have before us today only leases that were issued prior tó the 1990 Coastal Zone Management Act amendments, which have never been subject to consistency review. Accordingly, we need only decide the lease suspension question with respect to such leases. We reserve determination of California’s right to review a lease suspension affecting a lease that was itself subject to consistency review for decision on the particular facts of such a case if it should ever come before us. B. National Environmental Policy Act Claims NEPA requires that federal agencies take a “hard look” at the environmental consequences of their actions. Metcalf, 214 F.3d at 1141. An agency must prepare NEPA documents before any irreversible and irretrievable commitment of resources is made. Id. at 1143. Generally, the agency is required to prepare an EIS or an EA before committing resources to an action. A federal agency may adopt a “categorical exclusion” for a “category of actions which do not individually or cumulatively have a significant effect on the human environment.” 40 C.F.R. 1508.4 (2001). Generally, if an action falls within an adopted categorical exclusion the agency is not required to prepare an EIS or an EA. Id. However, an agency adopting a categorical exclusion must “provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.” Id. The United States has adopted a categorical exclusion for lease suspensions. National Environmental Policy Act;. Implementing Procedures for Minerals Management Service, 51 Fed.Reg. 1855, 1857 (Jan. 15, 1986). The United States has also adopted a list of ten exceptions to the categorical exclusion for lease suspensions. National Environmental Policy Act; Revised Implementing Procedures, 49 Fed. Reg. 21437, 21439 (May 21, 1984). The United States did not prepare environmental documentation regarding its decision to approve the lease suspensions. The United States argues that no environmental documentation was required because lease suspensions are categorically excluded and none of the exceptions to the exclusion apply in this case. The Environmental Groups argue that the United States cannot rely on the categorical exclusion because the United States did not make a catégorieal exclusion determination at the time it granted the lease suspensions. The implication is that the United States is using the catégorieal exclusion as a post hoc' rationalization when in fact it simply failed entirely to consider the potential environmental consequences of its decision at the time the decision was made. This would frustrate the fundamental purpose of NEPA, which is to ensure that federal agencies take a “hard look” at the environmental consequences of their actions, Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 800, 814 (9th Cir.1999), early enough so that it can serve as an important contribution to the decision making process. Metcalf, 214 F.3d at 1142-43. The United States does not point to any documentation in the record that would suggest that it made a categorical exclusion determination at the time the lease suspensions were approved. Instead it argues that the lease suspensions are indeed categorically exempt and that none of the exceptions applies. The United States argues that this Court can rely on the existing record to determine that the lease suspensions are categorically exempt because it is evident from the record that the duly-promulgated categorical exclusion for lease suspensions applies here. The United States cites, as precedent for such a review procedure the decision of this Court in Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445(9th Cir.1996). Bicycle Trails, however, severely undermines the United States’ argument. In Bicycle Trails the National Park Service relied on a categorical exclusion to exclude promulgation of rules governing bicycle use from NEPA review. This Court upheld the action of the Park Service as a proper invocation of the categorical exclusion. However, the Park Service made specific findings of fact and systematically applied its regulations for categorical exclusions to those facts in a Record of Decision contemporaneously published in the Federal Register. Bicycle Trails, 82 F.3d at 1456-57. Here, the United States points to no record of decision invoking a categorical exclusion, even in a cursory fashion. Bicycle Trails summarizes the requirement for an agency to apply a categorical exclusion: “An agency satisfies NEPA if it applies its categorical exclusions and determines that neither an EA nor an EIS is required, so long as the application of the exclusions to the facts of the particular action is not arbitrary and capricious.” Bicycle Trails, 82 F.3d at 1456 n. 5. It is difficult for a reviewing court to determine if the application of an exclusion is arbitrary and capricious where there is no contemporaneous documentation to show that the agency considered the environmental consequences of its action and decided to apply a categorical exclusion to the facts of a particular decision. Post hoc invocation of a categorical exclusion does not provide assurance that the agency actually considered the environmental effects of its action before the decision was made. District courts in our circuit have set aside agency decisions in similar circumstances on this reasoning. See, e.g., Comm. For Idaho’s High Desert v. Collinge, 148 F.Supp.2d 1097, 1108 (D.Idaho 2001). In many instances, a brief statement that a categorical exclusion is being invoked will suffice. Here, concern for adequate justification of the categorical exclusion is heightened because there is substantial evidence in the record that exceptions to the categorical exclusion are applicable. Exception 2.8 disallows use of the categorical exclusion where the agency action may “[h]ave adverse effects on species listed or proposed to be listed on the list of Endangered or Threatened Species, or have effects on designated Critical Habitat for these species.” 49 Fed.Reg. at 21439. The Chair of the California Coastal Commission wrote to the United States expressing concern over the effects of the lease suspensions on the threatened southern sea otter. Exception 2.2 disallows use of the categorical exclusion where the agency action may have adverse effects on “ecologically significant or critical areas.” Id. The Chair of the California Coastal Commission also expressed concern that the approval of the lease suspensions could impact the Mon-terey Bay National Marine Sanctuary and the Channel Islands National Marine Sanctuary. Both of California’s United States Senators also wrote expressing concern about impacts on the marine sanctuaries. Exception 2.3 disallows use of categorical exclusions for actions which may “[h]ave highly controversial environmental effects.” Id. The environmental effects of the leases are the subject not only of scientific, but also of public controversy. California Governor Gray Davis and United States Senator Dianne Feinstein both wrote on behalf of the people of California to express strong opposition to suspension of the leases because of concern over environmental effects. Senator Feinstein summed up the highly controversial environmental effects of offshore oil exploitation and the attitudes of Californians shaped by the 1969 spill in a letter dated June 16, 1999, to Secretary of the Interior Bruce Babbitt: In 1969 an oil spill in federal waters off the coast of Santa Barbara killed thousands of birds, as well as dolphins, seals and other animals. Estimates of the amount of oil released range up to 200,000 barrels. Within days, oil spread from California’s Channel Islands to the Mexican border, an area of approximately 800 square miles. The people of California were so concerned that shortly thereafter they voted to create the California Coastal Commission. There was also a nationwide impact — a new movement towards stronger environmental protections, including the National Marine Sanctuaries Act. Since the 1969 spill, there have been more than thirty additional significant oil spills off the California coast. Each spill has imperiled the environment, the economy, and the beautiful landscape of California. California’s offshore currents are such that our coast should not be explored or developed any more. In this case, additional exploration and development of offshore oil sources is not only risky, but is not necessary. The oil that will be produced under these leases is low quality, and limited in use. It is not worth gambling with one or our most precious national resources. There is widespread agreement that oil drilling presents environmental dangers, and I urge you to terminate these leases without any further extensions. Governor Davis has repeatedly and publicly stated that since the oil spills of 1969 Californians have vehemently opposed offshore drilling and that he would fight on behalf of California against new drilling on undeveloped federal leases. That there has been continuous and significant public controversy over the environmental effects of offshore oil activities in California for the past thirty years, and that there is significant public controversy over these lease extensions in particular is beyond debate. At the very least there is substantial evidence in the record that exceptions to the categorical exclusion may apply, and the fact that the exceptions may apply is all that is required to prohibit use of the categorical exclusion. 49 Fed.Reg. at 21439. Where there is substantial evidence in the record that exceptions to the categorical exclusion may apply, the agency must at the very least explain why the action does not fall within one of the exceptions. In Jones v. Gordon, 792 F.2d 821 (9th Cir.1986), this Court held that a federal agency improperly relied on a categorical exclusion where the record revealed “the arguable existence of public controversy based on potential environmental consequences.” Id. at 828(internal quotations omitted). In Jones, there were public comments in the record opposing the issuance of a permit to capture killer whales, including comments relating to the environmental effects of capturing whales. Jones held that the agency’s invocation of a categorical exclusion was improper because the agency did not explain why an exception for actions involving public controversy based on potential environmental effects had no application. Id. at 826-29. There are subtle differences in wording between the exception in Jones and Exception 2.3 here. However, the existence of public controversy in this case is beyond doubt and the principle applied in Jones is fully applicable here. Although California, the Counties, and the Environmental Groups argue that the categorical exclusion cannot be applied to these lease suspensions and an EIS is required, they do not ask us to modify the decision of the district court, but rather urge that we affirm in all respects. The district court held that the United States must provide a reasoned explanation for its reliance on the categorical exclusion, including an explanation of why the exceptions do not apply. The district court left open the possibility of requiring an Environmental Impact Statement if the United States fails to provide an adequate explanation. We affirm the decision of the district court with respect to the NEPA claim, and leave it to the district court to determine in due course what, if any, further NEPA documentation is required. CONCLUSION For the above stated reasons, we AFFIRM the decision of the district court with respect to both the NEPA and Coastal Zone Management Act claims and REMAND for further proceedings consistent with this opinion. AFFIRMED AND REMANDED. . Numerous officers and agencies have acted on behalf of both the United States and California in these matters. Unless significance attaches to the fact that a particular officer or agency took a particular action, we refer to all those acting on behalf of the United States as "the United States,” and all those acting on behalf of California as "California.” . We refer to the regulations in effect at the time the lease suspensions were granted by indicating the year (1999) where the district court relied on those regulations in its decision. . The record shows suspension requests for forty leases. Subsequently four of the leases were determined not to be eligible for further suspension and expired on August 16, 1999, reducing the number of leases at issue to thirty-six. The holders of the four leases administratively challenged the expiration of their leases. As of the filing of briefs in this appeal, the challenges were pending. . The suspension of a lease may be either "granted” at the request of the lessee or "directed” on the initiative of the United States. 30 C.F.R. 250.110 (1999). . The United States does argue that the lease suspensions prohibit operations on the leases during the term of the suspension, so the suspensions do not immediately affect the coastal zone because no operations will take place during the term of the suspension. We disagree. The lease suspensions require the lessees to achieve a list of "milestones'' during the suspension period. The milestones include completing a 3D seismic survey using underwater explosives that may permanently injure marine mammals. The survey will also affect fishing in the area and may require compensation to fishers for loss of income. The milestones further require drilling of wells during the suspension period, albeit on the last day of the suspension. The suspensions require the lessees to perform these milestone activities and therefore the suspensions do immediately affect the coastal zone within the suspension period. . We reject the United States' argument that these lease suspensions do not grant new rights or authority and are merely ministerial. Federal regulations provide that "[t]he Regional Supervisor may, on the Regional Supervisor’s initiative or at the request of the lessee, suspend or temporarily prohibit production or any other operation or activity on all or any part of a lease (suspension) when the Regional Supervisor determines that such suspension is in the national interest.” 30 C.F.R. § 250.110(a) (1999) (emphasis added). The use of the permissive "may” indicates that the determination is discretionary. Moreover, determining what is in the "national interest” must of necessity involve the exercise of judgment and implicates policy choices. Because the decision to extend these leases through the suspension process is discretionary, it does grant new rights to the lessees to produce oil and derive revenues therefrom for many years when absent the suspensions all rights would have terminated. We note that the regulations have recently •been revised. However, we agree with the United States that the 1999 regulation quoted above is applicable to the suspensions in this case. . We are not persuaded by the United States' alternative argument that it has already complied with consistency review requirements by providing a "negative determination” to California. The record indicates that the documents cited by the United States do not meet the requirements of a negative determination and do not serve this function. We agree with the reasoning of the district court with regard to the letter of August 13, 1999. See Cal. Coastal Comm'n v. Norton, 150 F.Supp.2d at 1054. Moreover, the United States acknowledges that the letter of August 13 was directed at a different batch of lease suspensions not at issue in this litigation. As to the letter of June 25, 1999, we conclude that this letter fails to analyze the facts pertinent to these suspensions and effectively states that a lease suspension can never trigger State review. However, we agree with the reasoning of the National Oceanic and Atmospheric Administration that a lease suspension or set of lease suspensions might "affect the uses or resources of the State's coastal zone, and thus CZMA bars ... categorically exempting suspensions from consistency [review].” Coastal Zone Management Act Federal Consistency Regulations, 65 Fed. Reg. 77124, 77144 (Dec. 8, 2000). "Whether a particular federal action affects the coastal zone is a factual determination” to be made on a "case-by-case” basis. 65 Fed.Reg. 77124, 77125. The United States' approach in the letter of June 25, therefore fails to provide the required fact-specific inquiry necessary for a negative determination. . Revised exploration plans are subject to section (c)(3) review if activities approved in the plan cause coastal zone effects "substantially different” from those reviewed in the original plan. 15 C.F.R. § 930.51(b)(3) (2002). In determining whether a revised plan causes "substantially different” coastal effects triggering (c)(3) review, "[t]he opinion of the State agency shall be accorded deference and the term[ ] ... 'substantially different’ shall be construed broadly to ensure that the State agency has the opportunity to review activities and coastal effects not previously reviewed.” 15 C.F.R. § 930.51(e). . Here, too, the United States argues that the lease suspensions cause no effects so the exceptions cannot apply, public controversy non-withstanding. We disagree. See supra note 5 and accompanying text.

Resource Investments, Inc. v. U.S. Army Corps of Engineers

DAVID R. THOMPSON, Circuit Judge: OVERVIEW This case presents the question whether section 404 of the Clean Water Act (CWA), 33 U.S.C. § 1344, authorizes the United States Army Corps of Engineers (Corps) to require a landowner to obtain a dredge and fill permit from the Corps before constructing a municipal solid waste landfill on a wetlands site. We hold that the construction of a municipal solid waste landfill on a wetlands site is regulated by the Environmental Protection Agency (EPA) or states with solid waste permit programs approved by the EPA under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6941-6949a, not by the Corps under section 404 of the CWA. Accordingly, we revérse the district court’s order upholding the Corps’ decision to deny a permit, and remand with instructions to vacate that decision. FACTS Resource Investments, Inc. (RII), a private company, seeks to construct and operate a municipal solid waste landfill on a 320-acre site in Pierce County, Washington. The landfill would accept mixed municipal solid waste (residential, commercial, construction and demolition refuse and tires) generated in Pierce County, and have a net capacity of 19.7 million tons. The landfill would occupy 168 acres of the 320-aere site and require clearing, excavating, filling, and grading approximately 21.6 acres of the site’s 70 acres of wetlands. The affected wetlands include 13.7 acres of forested wetlands, 6.1 acres of scrub-shrub wetlands, and 1.8 acres of emergent meadow wetlands. RII plans to mitigate the wetlands loss by creating, preserving, restoring and enhancing wetlands on a dedicated 85-acre wetlands mitigation area on the site. RII’s landfill would consist of eight 21-acre cells. The base of each cell would be excavated to form proper grades for the construction of a leak detection and collection system that would underlie each cell. The leak detection and collection system woiild include a gravel collection layer, followed by a two-foot layer of low-permeability soil and a synthetic liner to catch any leachate created by rainwater or other liquids passing through the municipal solid waste. Municipal solid waste would be placed on top of this liner system, followed by a cover system. . The proposed landfill is in compliance with the Tacoma-Pierce County Solid Waste Management Plan (County Waste Plan), which was prepared pursuant to Wash. Rev.Code § 70.95.080 (requiring each county in Washington to prepare a comprehensive solid waste management plan that identifies and considers ways to dispose of solid waste generated within Its jurisdiction). The State of Washington’s solid waste management plan was developed pursuant to the RCRA, 42 U.S.C. § 6943, which requires each state to develop a plan for the safe and environmentally-sound disposal of solid waste within its jurisdiction. The Gounty Waste Plan recognizes that Pierce County’s only open landfill, Hidden Valley Landfill (operated by Land Recovery, Inc., an affiliated company of RII), is near capacity and was scheduled for closure in 1996. In order to extend the closure date, Pierce County has since 1993 long-hauled 40 percent of its solid waste via truck and rail to an out-of-county landfill in Eastern Washington. The County Waste Plan recommends an in-county solid waste landfill as the primary means for the disposal of waste that cannot be recycled', and encourages private sector efforts to deal' with the county’s landfill needs. The County Waste Plan also recommends the use of long-hauling solid waste by rail to out-of-county landfills in Eastern Washington or Eastern Oregon if an in-county landfill cannot be completed. The County Waste Plan provides that a landfill site will be required in any solid waste disposal strategy that Pierce County chooses. After buying the majority of the 320-acre site in 1988, RII applied for permits to construct the landfill. It received a conditional use permit from Pierce County and a solid waste handling permit from the Tacoma-Pierce County Health Department. In order to obtain the solid waste handling permit, RII was required to successfully demonstrate to the Tacoma-Pierce County Health Department that: (1) a practicable alternative to the proposed landfill that did not involve wetlands was not available; (2) the construction and operation of the landfill would not cause or contribute to violations of any applicable state water quality standard, violate any applicable toxic effluent standard or prohibition, jeopardize the continued existence of endangered or threatened species or critical habitats, or violate any requirement for the protection of a marine sanctuary; (3) the landfill would not cause or contribute to significant degradation of wetlands; and (4) steps had been taken to achieve no net loss of wetlands by first avoiding impacts to wetlands to the maximum extent practicable, then minimizing unavoidable impacts to the maximum extent practicable, and finally offsetting remaining unavoidable wetlands impacts through all appropriate and practicable compensatory mitigation actions. See Wash. Admin. Code § 173-351-130(4)(a). RII also filed an application on August 8, 1990, with the Corps for a permit under section 404 of the CWA to discharge “dredged or fill material” into the navigable waters of the United States. Section 404 prohibits the discharge of “dredged or fill material” into the navigable waters of the United States, including wetlands, without a permit from the Secretary of the Army, acting through the Corps. See 33 U.S.C. § 1344. After an extensive review, the Corps denied RII’s application, on the grounds that RII had failed to demonstrate the unavailability of practicable alternatives for. waste disposal that were less environmentally damaging, such as long-hauling Pierce County’s solid waste by rail to out-of-eounty landfills, and that the proposed landfill was not in the public interest because it would cause significant degradation of wetlands and posed an unacceptable risk of groundwater contamination. The district court affirmed the Corps’ denial of RII’s application for a permit on the ground that the Corps’ decision was not arbitrary, capricious, contrary to law, or an abuse of discretion. This appeal followed. DISCUSSION RII contends that the Corps lacked au7 thority under section 404 of the CWA to require a dredge and fill permit because, under RCRA, 42 U.S.C. §§ 6941-6949a, the regulation of municipal solid waste disposal, including the disposal of municipal solid waste in landfills constructed on, wetlands areas, lies solely with the EPA or states with solid waste permit programs approved by the EPA. The resolution of this issue requires an interpretation of the CWA, 33 U.S.C. §§ 1341-1345, and the RCRA, 42 U.S.C. §§ 6941-6949a. We review issues of statutory interpretation de novo. See United States v. Trident Seafoods Corp., 92 F.3d 855, 862 (9th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 944, 136 L.Ed.2d 833 (1997). “We must read the statutes to give effect to each if we can do so while preserving their sense and purpose.” Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981). “[W]hen two statutes are capable of co-existence, it is the duty of the courts ... to regard each as effective.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 155, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976) (quoting Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)). Although an agency’s construction of a statute it is charged with enforcing is normally entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress, see United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), this deference does not extend to “agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice.” Ashoff v. City of Ukiah, 130 F.3d 409, 411 (9th Cir.1997) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988)). A. Section 404 of the Clean Water Act The Clean Water Act establishes a comprehensive regime to regulate “the discharge of pollutants into the navigable waters” of the United States. See 33 U.S.C. § 1251(a). Section 402 of the CWA prohibits the discharge of pollutants into navigable waters without a permit issued by the EPA under the National Pollution Discharge Elimination System (NPDES). See 33 U.S.C. § 1342. Section 404 of the CWA prohibits the discharge of “dredged or fill material” into navigable waters without a permit issued by the Corps. See 33 U.S.C. § 1344. Congress gave the Corps the responsibility of regulating the discharge of dredged or fill material into navigable waters in recognition of the Corps’ historical role under section 10 of the Rivers and Harbors Act of 1899 as the permitting agency for dredge and fill activities in the nation’s navigable waters, see 33 U.S.C. § 403; 42 Fed.Reg. 37,122 (1977), and because the CWA includes the term “dredged spoil” in the CWA’s definition of “pollutant,” see 33 U.S.C. § 1362(6). The Conference Committee Report explained: A major difference between the Senate bill and the House amendment related to the issue of dredging. The Senate Committee had reported a bill which treated the disposal of dredged spoil like any other pollutant. Pursuant to an amendment accepted on the Senate floor, dredged, spoil disposal was made subject to a different set of criteria to determine any environmental effects. The House bill not only established a different set of criteria to determine the environmental effects of dredged spoil disposal but also designated the Secretary of the Army rather than, the Administrator of the Environmental Protection Agency as the permit issuing authority. The Conference agreement follows those aspects of the House bill which related to the .Secretary of the Army’s regulatory authority.... The Conferees were uniquely aware of the process by which dredge and fill permits are presently handled and did not wish to create a burdensome bureaucracy in light of the fact that a system to issue permits already existed. Conf. Rep. No. 92-500 (1972), reprinted in 1 A Legislative History of the Water Pollution Control Act Amendments of 1972, at' 177 (1973). The term “dredged material” is defined under the Corps’ regulations as “material that is excavated or dredged from the waters of the United States.” 33 C.F.R. § 323.2(c). The phrase “discharge of dredged material” is defined as “any addition of dredged material into, including any redeposit of dredged material within, the waters of the United States.” 33 C:F.R. § 323.2(d)(1). The term “fill material” is defined under the Corps’ regulations as “any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a waterbody. The term does not include any pollutant discharged into the water primarily to dispose of waste, as that activity is regulated under section 402 of the Clean Water Act.” 33 C.F.R. § 323.2(e). The phrase “discharge of fill material” is defined as follows: The term discharge of fill material means the addition of fill material into waters of the United States. The term generally includes, without limitation, the following activities: Placement of fill that is necessary for the construction of any structure in a water of the United States; the building of any Structure or impoundment requiring rock, sand, dirt, or other material for its construction; site-development fills for recreational, industrial, commercial, residential, and other uses;. causeways or road fills; dams ,and dikes;- artificial islands; property protection and/or reclamation devices such as riprap, groins, seawalls, breakwaters, and revetments; beach nourishment; levees; fill for structures such as sewage treatment facilities, intake and outfall pipes associated with power plants and subaqueous utility lines; and artificial reefs. 33 C.F.R. § 323.2(f) (emphasis in original). Although primary responsibility for regulating the discharge of dredged and fill material into navigable waters lies with the Corps, Congress directed the EPA to promulgate guidelines for the Corps’ consideration of dredge or fill permit applications. See 33 U.S.C. § 1344(b). The guidelines provide that “no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a). The guidelines create a presumption that practicable alternatives are available where the proposed discharge would occur on a special aquatic site (including wetlands) and is not water dependent, unless “clearly demonstrated otherwise.” 40 C.F.R. § 230.10(a)(3). The regulations also provide that an alternative is practicable “if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” 40 C.F.R. § 230.10(a)(2). The regulations further provide that a dredge and fill permit will not be issued if the proposed discharge will cause or contribute to violations of any applicable state water quality standard, violate any applicable toxic effluent standard or prohibition, jeopardize the continued existence of endangered or threatened species or critical habitats, violate any requirement for the protection of a marine sanctuary, or cause or contribute to significant degradation of wetlands. See 40 C.F.R. § 230.10(b), (c). If the Corps finds that the application complies with these guidelines, the permit “will be granted unless the district engineer determines that it would be contrary to the public interest.” 33 C.F.R. § 320.4(a)(1). The public interest review evaluates “the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest,” id., and includes consideration of the impact of the proposed activity on wetlands, see 33 C.F.R. § 320.4(a)(3). B. Resource Conservation and Recovery Act The Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6941-6949a, establishes a comprehensive regime for the regulation of solid and hazardous waste disposal on land. See Ashoff v. City of Ukiah, 130 F.3d 409, 410 (9th Cir.1997). RCRA gives the EPA authority to issue permits for the disposal of solid waste, but allows the states to substitute their own permit -programs for the federal program if the state program is approved by the EPA. See United States Dep’t of Energy v. Ohio, 503 U.S. 607, 611, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992). Congress directed the EPA to promulgate regulations for the safe and environmentally-sound disposal of' solid waste, including requirements for the siting, design, construction, operation and closure of solid waste landfills. ' See 42 U.S.C. § 6942. In response, the EPA promulgated regulations (“Subtitle D regulations”) providing minimum federal criteria with which all solid waste landfills must comply. See 40 C.F.R. §§ 258.1-258.75. The RCRA requires each state to adopt and implement a permit program which ensures compliance with these minimum federal criteria, see 42 U.S.C. § 6943; 40 C.F.R. § 258.1(a), and directs the EPA to determine whether each state has developed an adequate program, see 42 U.S.C.'§ 6947. Under the EPA’s Subtitle D regulations, wetlands are given strong protection against degradation by solid waste landfills. A new municipal solid waste landfill cannot be constructed on a wetlands area unless the owner can make several demonstrations to the director of an approved state. First, the owner must clearly rebut the presumption that a practicable alternative to the proposed landfill is available that-does not involve wetlands. See 40 C.F.R. § 258.12(a)(1). Second, the owner must show that the construction or operation of the landfill will not cause or contribute to violations of any applicable state water quality standard, violate any applicable toxic effluent standard or prohibition, jeopardize the continued existence of endangered or threatened species or critical habitats, or violate any requirement for the protection of a marine sanctuary. See 40 C.F.R. § 258.12(a)(2). Third, the owner must demonstrate that the landfill will not cause or- contribute to significant degradation of wetlands. See 40 C.F.R. § 258.12(a)(3). Fourth, the owner must demonstrate that steps have been taken to achieve no net loss of wetlands by first avoiding impacts to wetlands to the maximum extent practicable, then minimizing unavoidable impacts , to the maximum extent practicable, and finally offsetting remaining unavoidable wetlands impacts through all appropriate and practicable compensatory mitigation actions. See, 40 C.F.R. § 258.12(a)(4). These RCRA wetlands provisions mirror the EPA’s section 404 guidelines concerning wetlands under the CWA. See 40 C.F.R. § 230.10. The EPA approved the State of Washington’s municipal solid waste landfill permit program in 1994. See 59 Fed.Reg. 15,203 (1994). Under the State of Washington’s permit program, an owner of a proposed municipal solid waste landfill must make the exact demonstrations required by the EPA in the Subtitle D regulations. See Wash. Admin. Code § 173-351-130(4)(a). The State of Washington has delegated its permit authority in Pierce County to the Tacoma-Pierce County Health Department. See Wash. Admin. Code § 173-351-720(l)(f). In granting RIFs application for a solid waste handling permit, the Tacoma-Pierce County Health Department certified that RII successfully made the appropriate demonstrations- concerning wetlands under Wash. Admin. Code § 173-351-130(4)(a). C. Analysis We conclude as a matter of law that the Corps lacked authority under section 404 of the CWA to require RII to obtain a permit from the Corps before constructing the solid waste landfill. First, the municipal solid waste that would be disposed of in the proposed landfill does not fall within' the definition of either “dredged material” or “fill material.” The solid waste is not dredged material because it is not “material that is excavated or dredged from waters of the United States.” See 33 C.F.R. § 323.2(c). The solid waste is not fill material because it is not “material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a waterbody.” See 33 C.F.R. § 323.2(e). In fact, solid waste falls directly within one of the exceptions listed in the definition of fill material: “The term does not include any pollutant discharged into the water primarily to dispose of waste, as that activity is regulated under section 402 of the Clean Water Act.” Id. In explaining this exception, the Corps stated: During the two years of experience with the Section 404 program, several industrial and municipal discharges of solid waste materials have been brought to our attention which technically fit within our definition of “fill material” but which were intended to be regulated under the NPDES program. These include the disposal of waste materials such as sludge, garbage, trash, and debris in water. In some cases involving the disposal of these types of material in water, the final result may be a landfill even though the primary purpose of the discharge is waste disposal. ■ - The Corps and the Environmental Protection Agency feel that the initial decision relating to this type of discharge should be through the NPDES program. We have, therefore, modified our definition of fill material to exclude those pollutants that are discharged into water primarily to dispose of waste. 42 Fed.Reg. 37,122 (1977). Moreover, the layers of gravel and low-permeability soil, as well as the synthetic liner that would underlie the solid waste in RII’s proposed landfill, do not constitute fill material because their primary purpose is not to replace an aquatic area with dry land or to change the bottom elevation of a water-body, see 33 C.F.R. § 323.2(e), but rather to serve as a leak detection and collection system. Second, the siting, design and' construction of a solid waste landfill on a wetlands area is specifically regulated under the RCRA by the EPA and states with solid waste permit programs approved by the EPA. The Corps’ interpretation of its jurisdiction under section 404 of the CWA is unreasonable because it creates a situation in which the Corps on the one hand, and an RCRA-approved state regulatory program on the other, would make the same wetlands-impact determinations, using the same criteria, with potentially inconsistent results. This regulatory overlap is inconsistent with the Corps’ own regulations, which provide that “[t]he Corps believes that state .and federal regulatory programs should complement rather than duplicate one another.” 33 C.F.R. § 320.1(a)(5). The Corps expressed its concern with such overlapping regulations in a March 19, 1984 letter from William R. Gianelli, the Assistant Secretary of the Army for Civil Works, to William Ruckelshaus, the Administrator of the EPA: This follows up on discussions our- agencies have had over the years about the proper way to regulate garbage disposal and other waste disposal in waters of the United States. EPA has many solid waste responsibilities under its RCRA programs and has developed expertise in that area. Army has very limited expertise. Hence, we would have to establish duplicative expertise which may well result in policies and technical decisions which differ from those of EPA. It would not be in the best interests of Government for EPA to work with the States under RCRA under one policy and Army to operate a 404 permit program for garbage disposal on a different basis. It is logical to identify regulations of garbage disposal with EPA’s current and historic mission. It strains reason to have the Army Corps of Engineers, with its primary military and navigation missions, to lead this garbage disposal regulation. This letter was ultimately followed by a 1986 Memorandum of Agreement between the EPA and the Corps regarding which agency would have interim jurisdiction over the disposal of solid waste until the EPA promulgated final rules to implement the RCRA. The Memorandum of Agreement provides that when- the- EPA promulgates its final rules, which it did on October 9, 1991, the responsibility for the program becomes the sole purview of the EPA and the affected states. See 51 Fed.Reg. 8871 (1986). As one might surmise from the foregoing discussion, section 404 of the CWA and the applicable provisions of the RCRA can be harmonized to give effect to each “while preserving their sense and purpose.” Watt, 451 U.S. at 267, 101 S.Ct. 1673. Accordingly, we hold that when a proposed project affecting a wetlands area is a solid waste landfill, the EPA (or the approved state program), rather than the Corps, will have permit authority under the RCRA. If the project that will affect a wetlands area is not a solid waste landfill and the project involves the discharge of dredged or fill material, the Corps will have permit authority under section 404 of the CWA. See Trident Seafoods Corp., 92 F.3d at 862 (stating that statutes should be harmonized if possible). This harmonization is consistent with the sense of the CWA that discharges of solid waste materials are beyond the scope of section 404, see 42 Fed. Reg. 37, 122 (1977), and avoids unnecessary duplication of federal and state efforts in the area of wetlands protection. CONCLUSION The Corps lacks authority under section 404 of the CWA to require a landowner to obtain a dredge and fill permit from the Corps before constructing a municipal solid waste landfill on a wetlands site. The construction of a municipal solid waste landfill on a wetlands site is regulated by' the EPA and states with solid waste permit programs approved by the EPA under RCRA. Accordingly, we reverse the district court’s order upholding the Corps’ decision denying RII’s application for a section 404 permit and remand with instructions to vacate the decision of the Corps. REVERSED AND REMANDED with instructions to vacate the decision of the United States Army Corps of Engineers. . Although under Washington law, counties are responsible for the collection and disposal of municipal solid waste, see Wash. Rev.Code § 70.95.020, counties may contract with private éntities for solid waste handling, see Wash. Rev. Code § 36.58.040. . Under section 13 of the Rivers and Harbors Act of 1899, the Corps also had authority to regulate the discharge of pollutants and other refuse matter into the navigable waters of the United States. See 33 U.S.C. § 407. However, this permit authority was superseded by section 402 of the CWA in the 1972. See id.; 42 Fed.Reg. 37,122 (1977). . A project is not "water dependent" if it "does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose.” 40 C.F.R. § 230.10(a)(3). . ' "Director of an approved State” means "the chief administrative officer of a State agency responsible for implementing the State municipal solid waste permit program.” 40 C.F.R. § 258.2.

Friends of the Crystal River v. United States Environmental Protection Agency

NATHANIEL R. JONES, Circuit Judge. Defendants-Appellants United States Environmental Protection Agency (“EPA”) and Roland Harmes, appeal the district court’s grant of a permanent injunction and declaratory relief to Plaintiffs-Appellees, Friends of the Crystal River, et al. For the reasons stated herein, we AFFIRM the district court’s decision. I. A. The Federal Water Pollution Control Act (“FWPCA”), 33 U.S.C. §§ 1251-1376, enacted in 1972, constituted a reconstruction, of America’s water pollution laws. Pursuant to the FWPCA, the discharge of pollutants into our nation’s waterways is prohibited unless authorized by a permit or exempted by the specific statutory language. The Act establishes two discrete permitting systems by which individuals might obtain permits from the appropriate federal agency allowing dumping in waterways. The first, which is known as the National Pollutant Discharge Elimination System (“NPDES”), governs the discharge of pollutants from specific sites, known as point sources, see § 402 of the FWPCA, 38 U.S.C. § 1342, and most typically affects industry sources. The second permitting scheme, which operates under the Secretary of the Army via the Army Corps of Engineers, regulates the release of dredged and fill matter into waterways, including wetlands. See § 404 of the FWPCA, 33 U.S.C. § 1344. The two permitting systems are commonly referred to as “the § 402 system” and “the § 404 system,”, respectively. The instant case concerns a permit granted pursuant to § 404. States are authorized to supplant the first federal permitting scheme, the NPDES scheme, pursuant to various provisions of the FWPCA. Additionally, the Clean Water Act of 1977, (“CWA”), passed in 1977, which strengthened the FWPCA by adding additional protections, provides a similar authority to the states with respect to § 404 permits. As is relevant to the instant suit, Michigan has adopted its own § 404 system, while leaving the authority over NPDES permits to the federal government. Under § 404 a. state may establish its own permitting system by complying with the process enumerated therein. Limited federal oversight authority is retained even after the state’s acquisition of permitting control. Pursuant to this retained oversight authority, a state is required to present to the EPA copies of all permit applications which are submitted to the state for approval. In addition, the state must notify the EPA of any action that it takes with respect to such applications. § 1344(j). The EPA Administrator must, within 10 days, provide copies of the application to the Army Corps, the Department of the Interior, and the Fish and Wildlife Service. The state must be notified within thirty days if the Administrator intends to comment on the state’s handling of the application. Id. The administrator’s comments must be submitted within ninety days. Id. Once a state is notified that the EPA intends to comment, it may not issue the permit until after it has received the comment, or until ninety days have passed. If the EPA objects, to the application, the state “shall not issue such proposed permit” even after the ninety days have elapsed. Id. The aggrieved state may request a hearing to air its complaints. However, if the state does not request a hearing, or if it fails to modify its plan so as to conform to the EPA’s objections, authority to issue the permit is transferred to the Army Corps. B. The Homestead Resort is a recreational facility in Glen Arbor Township, Michigan, that occupies roughly 492 acres of land. The resort is in close proximity to the Sleeping Bear Dunes National Lakeshore, which is administered by the National Park Service. In January 1988, Kuras Properties, the owner of the Resort, filed a combined state and federal application for a § 404 permit with the Michigan Department of Natural Resources (“MDNR”). Kuras had plans to build an eighteen-hole golf course on its resort. However, this planned expansion required the filling of some 3.7 acres of the wetlands adjacent to the Crystal River. The EPA notified the MDNR that it intended to review the Kuras application pursuant to its retained oversight authority. See J.A. at 94. The three relevant entities— the Army Corps, the Fish and Wildlife Service, and the Department of the Interior— were all notified of the Kuras’ proposal and sent letters to the EPA voicing their opposition to the application. On July 7, 1988, the EPA informed the MDNR that it objected to the proposed permit due to the potentially significant and adverse impact that the proposal might have on the surrounding environment. In addition, the EPA indicated that it did not believe Kuras has adequately investigated the availability of alternative locations. The MDNR then denied Kuras’ permit application. In October 1988, Kuras filed an amended application, wherein it indicated that alternative locations for the proposed project were not feasible. Kuras then, in state court, challenged the denial of its first application. On February 17, 1989, the MDNR denied Kuras’ second permit application. Kuras ultimately reached an agreement with the State to make the necessary changes in its proposal. However, before a consent judgment could be entered, the Michigan United Conservation Clubs filed suit in state court to prevent the issuance of the permit. See Michigan United Conservation Clubs v. Kuras Properties, et al., No. 89-63221 (Mich. Cir. Ct. for Ingham Cty. 1989). The court found that the state was required to hold an administrative hearing before a permit could be issued. This was done in September 1989, and on August 27, 1990, the ALJ issued a report recommending approval of the application, provided that certain conditions were first met. The Michigan Natural Resources Council (“MNRC”) adopted the ALJ’s recommendation in November 1990. Despite the MNRC’s indicated approval, the EPA notified the state that it remained opposed to the issuance of the permit. The EPA stated that the MDNR had “neither satisfied USEPA’s objections nor denied the permit. Therefore, pursuant to Federal Regulations concerning State Program assumption (40 C.F.R. Part 233.50(j)), we have transferred the processing of this permit to the U.S. Army Corps of Engineers, Detroit District.” J.A. at 116. In early 1991, Michigan Governor John Engler asked the EPA Administrator William Reilly to review the EPA’s consideration of the case. Reilly then asked the governing region, Region V, to attempt to facilitate an accord with the state. However, despite attempts at compromise, the Region concluded that the proposed permit did not satisfy federal standards. The Administrator then, on April 16,1992, withdrew the region’s authority to oversee the issuance of the permit, and endowed the EPA’s Assistant Administrator of Water, LaJuana S. Wileher, with management discretion. Wileher, on May 8, 1992, withdrew the EPA’s earlier objections to the Kuras plan in an eighteen-page document entitled “Decision Document: Conditional Withdrawal of EPA Objection to Michigan Issuance of a State Wetlands Permit for Homestead Resort.” J.A. at 202-36 (including appendices). In this document, the Assistant Administrator allegedly returned permitting authority to Michigan, stating: [I]t is clear that EPA may be able to withdraw an objection if it later concludes the objection is no longer necessary. In addition, where, as here, the only pending application is before the State (the corps is not processing a permit because Kuras has not submitted an application to it), it is appropriate for the State to complete its permitting process once the objection is withdrawn. J.A. at 206. This alleged revesting of authority in the State occurred roughly a year and a half after the MDNR had first been notified that authority had been transferred to the Army Corps. In the instant case, five environmental groups brought suit challenging the EPA’s restoration of state control. The three grounds for the suit were: (1) the EPA lacked the statutory authority to withdraw its objections and restore state control; (2) the EPA acted arbitrarily and capriciously; and (3) the issuance of the permit by the state director would constitute a violation of the CWA. The district court issued a temporary injunction pending its resolution of the case. On June 9, 1992, the district court entered judgment for the plaintiffs on counts one and three. See Friends of the Crystal River v. United States Environmental Protection Agency, 794 F.Supp. 674 (W.D.Mich.1992). In so holding, the district court determined that the statute did not prevent judicial review of the EPA’s action. Moreover, the district court concluded that, after the ninety-day deadline had elapsed, the EPA lacked the authority to withdraw its objections, to revoke the Army Corps’ management authority, or to restore permitting authority in the state. A permanent injunction was therefore issued by the district court precluding the issuance of the permit by the MDNR. This appeal followed. II. A. The first issue before us is whether the Clean Water Act precludes judicial review of the EPA’s withdrawal of its objections. Judicial review is provided for by various provisions of the Federal Water Pollution Control Act, as amended by the CWA. However, Plaintiffs have not asserted jurisdiction under any of these sections. Rather, Plaintiffs claim general federal question jurisdiction under both the general federal question statute and 28 U.S.C. §§ 1361, 2201-02. We apply a de novo standard of review to questions of subje'et matter jurisdiction. Greater Detroit Resource Recovery Auth. v. United States Environmental Protection Agency, 916 F.2d 317, 319 (6th Cir.1990). In applying this standard, we note that the Administrative Procedure Act (“APA”) imposes a presumption in favor of judicial review. Block v. Community Nutrition Inst., 467 U.S. 340, 348-49, 104 S.Ct. 2450, 2455-56, 81 L.Ed.2d 270 (1984). However, this presumption will be overcome by clear and convincing evidence that Congress intended to preclude such review. Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). To the extent that a party wishes to preclude judicial review, the Supreme Court has instructed that that party will bear a “heavy burden.” Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 671-72, 106 S.Ct. 2133, 2136, 90 L.Ed.2d 623 (1986). Thus, “where substantial doubt about the congressional intent [to preclude review] exists, the general presumption favoring judicial review of administrative action is controlling.” Block, 467 U.S. at 351, 104 S.Ct. at 2456-57. The APA instructs that any person detrimentally affected by an agency decision is entitled to judicial review of that decision. See 5 U.S.C. § 702. However, such review is not afforded in cases where (1) the statute precludes review; or (2) the action complained of has been committed to agency discretion. See 5 U.S.C. § 701(a). In the instant case, the EPA argues that the CWA “precludes judicial review of interlocutory determinations made prior to ultimate issuance of the permit.” Federal Appellants’ Br. at 20. In reviewing the EPA’s assertion, we first look to the language of the statute. Block, 467 U.S. at 351, 104 S.Ct. at 2456-57 (instructing that the statute’s language, structure, objectives, and legislative history should be considered in determining whether judicial review is precluded). However, where the language of neither the FWPCA nor the CWA specifically grants nor precludes judicial review of the EPA’s decision to withdraw its objections, we must further consider the structure, objective, and legislative history of the statutes. Id. Congress has indicated that one purpose of the FWPCA is “to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution_” 33 U.S.C. § 1251(b). However, when enacting the 1977 amendments to the FWPCA, legislators noted that the “EPA has been much too hesitant to take any actions where States have approved permit programs. The result might well be the creation of ‘pollution havens’ in some of those States which have approved permit programs.” S.Rep. No. 95-370, 95th Cong., 1st Sess. 73 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4398. Thus, while the purpose of both the 1972 and 1977 Acts may have been to encourage states to assume a portion of the burden of pollution management, the 1977 amendments make equally clear that Congress also intended to expand federal oversight. The EPA urges this court to consider pertinent case law before reaching a final decision on the issue. Specifically, the EPA points to the following cases in support of its proposition that the instant EPA action is not reviewable: District of Columbia v. Schramm, 631 F.2d 854 (D.C.Cir.1980) (finding that Administrator’s decision not to object to NPDES permit was unreviewable agency action); American Paper Inst. v. United States Environmental Protection Agency, 890 F.2d 869 (7th Cir.1989) (finding that EPA’s decision to object was non-reviewable agency action as it was not included among reviewable categories listed in 33 U.S.C. § 1369(b)); and Champion Int’l Corp. v. United States Environmental Protection Agency, 850 F.2d 182 (4th Cir.1988) (finding that EPA’s unsatisfied objections are not final agency actions, and thus are not reviewable). The plaintiffs respond, first, by stressing the substantial evidentiary hurdle Defendants must overcome before they will rebut the presumption of reviewability. In addition, Plaintiffs note that three circuits have found that some federal review of state-issued NPDES permits is legitimate. For example, in Save the Bay, Inc. v. Administrator of EPA 556 F.2d 1282, 1295-96 (5th Cir.1977), the court suggested that the EPA’s failure to object to a state permit would be reviewable in federal court if there were some allegation that the EPA had not acted in conformity with its own guidelines. Similarly, in Central Hudson Gas & Elec. Corp. v. United States Environmental Protection Agency, 587 F.2d 549 (2d Cir.1978), the court allowed for immediate review of an EPA action where the EPA was allegedly acting outside of -its statutory authority when it continued to issue permits even after New York’s permitting program had been approved. We find that the cases cited by the parties do not conflict with each other. Rather, the basic principles espoused are readily harmonized. The eases cited by the defendants stand for the broad proposition that an EPA decision to object does not constitute final agency action, while a decision not to object is within the sole discretion of the agency. Accordingly, neither action may be subjected to judicial review. Also bearing upon the present case is the implication noted in Central Hudson that, unlike the situations discussed above, there may be situations in which judicial review will be appropriate. Such a situation is presented here. We find that the transfer of permitting authority back to the state was a non-discretionary act. Moreover, the EPA’s withdrawal of its objections is a final decision that, if unreviewed, will terminate the federal government’s role in this case. Thus, where, as here, the court is faced with a final, non-discretionary agency act, we conclude that review is appropriate. The EPA farther argues that state courts are competent to hear the federal issues, and thus should not be precluded from considering the same. However, we find that the mere existence of an alternative forum does not, without more, demonstrate a congressional intent to preclude federal judicial review. Logic dictates that though the federal and state courts share concurrent jurisdiction over a broad host of claims under federal statutory law, the mere existence of such concurrent jurisdiction does not per se rescind all federal authority over such cases. Moreover, though Congress may have intended to vest significant authority in the states via the FWPCA, the 1977 amendments to that same statute indicate Congress’ desire to insure that the EPA properly discharges its oversight duties. Consequently, where the EPA has allegedly abandoned its supervisory role, and has, at the same time, revoked the authority of another federal agency to exercise the same, we cannot find that Congress intended to foreclose review by the federal courts. B. The next issue we must address is whether the EPA exceeded its authority by attempting to return permitting authority to Michigan after such authority had been transferred to the Army Corps. Section 1344(j) provides that where a state fails to amend its proposed permit to conform to EPA objections, “the Secretary [of the Army, acting through the Army Corps,] may issue the permit.” 33 U.S.C. § 1344(j). The EPA’s own regulations present a more absolute interpretation of the transfer of authority, stating that “the Secretary shall process the permit application” after ninety days have passed. 40 C.F.R. § 233.50(j). The EPA argues that because § 1344© does not specifically preclude the EPA’s withdrawal of its objections after the ninety-day period that the EPA should be allowed to transfer permitting authority back to the state once an objection has been withdrawn. Agencies are creatures of statutory authority. Thus, they have “no power to act ... unless and until Congress confers power upon [them].” Louisiana Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 374, 106 S.Ct. 1890, 1901, 90 L.Ed.2d 369 (1986). The Supreme Court has held that courts are not to assume that an agency has lost jurisdiction merely because it has not acted within a statutorily specified time limit. General Motors Corp. v. United States, 496 U.S. 530, 542, 110 S.Ct. 2528, 2534, 110 L.Ed.2d 480 (1990); Brock v. Pierce County, 476 U.S. 253, 258-62, 106 S.Ct. 1834, 1838-40, 90 L.Ed.2d 248 (1986). However, where a statute both requires the agency to act within a certain time period and specifies a consequence if that requirement is not met, the agency will lose jurisdiction to act. Cf. Fort Worth Nat’l Corp. v. Federal Sav. & Loan Ins. Corp., 469 F.2d 47, 58 (5th Cir.1972) (noting that a statutory time period is mandatory if the statute “both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provision”). In the instant case, the CWA specifically provides a time limit in which a state must comply with EPA objections. A failure on the part of the state to so conform within the statutory time limit results in the transfer of authority to the Army Corps. Consequently, we conclude Congress intends to completely divest the original agency of jurisdiction, and vest authority in the Army Corps following expiration of the deadline. C. The final issue we must address is whether the district court had subject matter jurisdiction over the claims asserted against Defendant Roland Harmes, director of the MDNR. Harmes maintains that the court lacked jurisdiction because he was not acting as a federal agent, nor acting pursuant to federal authority in his administration of the Michigan permitting program. However, the plaintiffs have alleged a federal question. Consequently, because the case against Harmes “arises under” federal law, the district court correctly determined that it had jurisdiction to consider the claims asserted against him. III. For the foregoing reasons, we affirm the district court’s decision. .Sections 1344(g)-(i) instruct that the governor must first submit a description of the proposed state program to the Administrator of the EPA. The EPA then, within ten days, must provide copies of the proposal to the Army Corps, the Secretary of the Interior, and the Fish and Wildlife Service. Each of these organizations has ninety days in which to submit any commentary on the state's proposal. § 1344(g). The Administrator, within 120 days, must then decide if the state's proposed plan conforms to federal guidelines. A failure on the part of the Administrator to act within 120 days will result in a presumptive endorsement of the state's plan. § 1344(h). If, after a hearing, the Administrator decides that the plan does not comply with federal standards, the state must be notified. Following notification, the state's failure to act within ninety days compels the withdrawal of approval for the plan. . Though the EPA may waive all or part of its oversight authority, such was not done with respect to Michigan’s § 404 permitting system. See § 1344(k). . Specifically, the statutory language states: If the State does not resubmit such permit revised to meet such objection, the Secretary [of the Army, acting through the Army Corps,] may issue the permit pursuant to subsection (a) or (e) of this section, as the case may be, for such source in accordance with the guidelines and requirements of this chapter. § 1344. If a state fails to comply with the EPA's objections under a NPDES program, the authority to issue the permit is simply returned to the EPA. See 33 U.S.C. § 1342(d)(4). . The EPA’s objections to the Kuras permit were filed roughly two months beyond the applicable ninety-day deadline. This delay is not at issue in the instant appeal, however, due to Kuras' subsequent filing of an amended application. . Two additional letters evidencing the transfer of authority are referenced by the district court, but are not a part of the record on appeal. In one of these letters, the Army Corps confirmed its authority over the matter. In the second, the EPA confirmed that authority had been transferred, and noted that "MDNR may not issue a wetlands permit to an applicant where EPA has objected to its issuance within 90 days. Where EPA’s objections have not been satisfied within certain time frames and conditions, permit issuing authority reverts to the Secretary of the Army.” Friends of the Crystal River v. United States Environmental Protection Agency, 794 F.Supp. 674, 679 (W.D.Mich.1992). . Throughout this period, Kuras refused to submit its application to the Army Corps for consideration. Consequently, the Army Corps has never acted on the permit at issue here. . The plaintiffs in this case are Friends of Crystal River, the National Wildlife Federation, Michigan United Conservation Clubs, Michigan Council of Trout Unlimited, and the Lake Michigan Federation. . The named defendants in this action are the EPA, Reilly, Wileher, and Roland Harmes, the Director of the MDNR. Kuras Properties intervened as a defendant. . For example, the United States Courts of Appeals are granted original jurisdiction over challenges to specific acts of the EPA Administrator with respect to NPDES permitting schemes, pursuant to 33 U.S.C. § 1369(b)(1). In addition, 33 U.S.C. § 1365 provides for “citizen suits” challenging the Administrator’s "failure ... to perform any act or duty under this chapter which is not discretionaiy with the Administrator.” .Although the Supreme Court has found that the Administrative Procedure Act does not itself create jurisdiction, see Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), the Court has stated that the federal courts have jurisdiction under the federal question statute to review agency action “regardless of whether the APA of its own force may serve as a jurisdictional predicate." Id. at 105, 97 S.Ct. at 984. . We note that a close reading of American Paper indicates that the court found that the decision to object is not reviewable because it is discretionary. However, we conclude that a more defensible basis for determining EPA objections to be non-reviewable lies in the fact that such decisions are non-final. For example, the EPA may, after issuing an objection, decide to (1) accept the modified state permit; (2) issue a permit on its own; or (3) deny the permit. . The Supreme Court has held that for an agency decision to be precluded from review on the grounds that it is discretionary, the statute must be "drawn in such broad terms that in a given case there is no law to apply.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971). The APA’s prohibition on review of a discretionary administrative action is thus a "very narrow exception.” Id. In the instant case, the transfer of authority to the Army Corps is not so discretionary that there is no law to apply. See 5 U.S.C. § 701. .In Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), the Supreme Court found that a statutory bar to judicial review would not apply where an agency acted outside of its authority to deprive a plaintiff of his or her statutory rights. This circuit has narrowly interpreted Leedom to apply only in "extreme situations.” Shawnee Coal Co. v. Andrus, 661 F.2d 1083, 1093 (6th Cir.1981). However, in light of our conclusion that judicial review is not precluded, we need not further address the district court's conclusion that this case, in the event that judicial review was precluded, would fit within the exception noted by the court in Leedom. . The EPA argues that this conclusion fails to accord due deference to the agency’s own interpretation of the statute. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984), the Supreme Court directed that where Congress has failed to address the precise question in issue, deference must be given to the agency's interpretation of the statutory language, provided such interpretation is based on a legitimate construction of the statute. We find the EPA's assertion to be unpersuasive for two reasons. As noted above, we conclude that the language of § 1344(j), along with the legislative history indicates that Congress created a detailed procedure by which impasse between the state and the EPA might be resolved. Consequently, it is unnecessaiy to reach the Chevron question, in the first instance, where Congress has addressed the issue in question. Moreover, to the extent that Chevron is on point, an agency interpretation that conflicts with the agency's own prior construction is “ ‘entitled to considerably less deference’ than a consistently held agency view.” I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30, 107 S.Ct. 1207, 1221 n. 30, 94 L.Ed.2d 434 (1987) (quoting Watt v. Alaska, 451 U.S. 259, 273, 101 S.Ct. 1673, 1681, 68 L.Ed.2d 80 (1981)). Thus, in the instant case, where the EPA's present position is at odds with its earlier-held view that the Army Corps was vested with authority to oversee the permit issue, J.A. at 116, the current agency construction is not entitled to deference.

Pud No. 1 of Jefferson County v. Washington Department of Ecology

Justice O’Connor delivered the opinion of the Court. Petitioners, a city and a local utility district, want to build a hydroelectric project on the Dosewallips River in Washington State. We must decide whether respondent state environmental agency (hereinafter respondent) properly conditioned a permit for the project on the maintenance of specific minimum stream flows to protect salmon and steelhead runs. I This case involves the complex statutory and regulatory scheme that governs our Nation’s waters, a scheme that implicates both federal and state administrative responsibilities. The Federal Water Pollution Control Act, commonly known as the Clean Water Act, 86 Stat. 816, as amended, 33 U. S. C. § 1251 et seq., is a comprehensive water quality statute designed to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” § 1251(a). The Act also seeks to attain “water quality which provides for the protection and propagation of fish, shellfish, and wildlife.” § 1251(a)(2). To achieve these ambitious goals, the Clean Water Act establishes distinct roles for the Federal and State Governments. Under the Act, the Administrator of the Environmental Protection Agency (EPA) is required, among other things, to establish and enforce technology-based limitations on individual discharges into the country’s navigable waters from point sources. See §§1311, 1314. Section 303 of the Act also requires each State, subject to federal approval, to institute comprehensive water quality standards establishing water quality goals for all intrastate waters. §§ 1311(b) (1)(C), 1313. These state water quality standards provide “a supplementary basis ... so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels.” EPA v. California ex rel. State Water Resources Control Bd., 426 U. S. 200, 205, n. 12 (1976). A state water quality standard “shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.” 33 U. S. C. § 1313(c)(2)(A). In setting standards, the State must comply with the following broad requirements: “Such standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational [and other purposes.]” Ibid. See also § 1251(a)(2). A 1987 amendment to the Clean Water Act makes clear that § 303 also contains an “antidegradation policy” — that is, a policy requiring that state standards be sufficient to maintain existing beneficial uses of navigable waters, preventing their further degradation. Specifically, the Act permits the revision of certain effluent limitations or water quality standards “only if such revision is subject to and consistent with the antidegradation policy established under this section.” § 1313(d)(4)(B). Accordingly, EPA’s regulations implementing the Act require that state water quality standards include “a statewide antidegradation policy” to ensure that “[e]xisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.” 40 CFR § 131.12 (1993). At a minimum, state water quality standards must satisfy these conditions. The Act also allows States to impose more stringent water quality controls. See 33 U. S. C. §§ 1311(b)(1)(C), 1370. See also 40 CFR § 131.4(a) (1993) (“As recognized by section 510 of the Clean Water Act[, 33 U. S. C. § 1370], States may develop water quality standards more stringent than required by this regulation”). The State of Washington has adopted comprehensive water quality standards intended to regulate all of the State’s navigable waters. See Washington Administrative Code (WAC) 173-201-010 to 173-201-120 (1986). The State created an inventory of all the State’s waters, and divided the waters into five classes. 173-201-045. Each individual fresh surface water of the State is placed into one of these classes. 173-201-080. The Dosewallips River is classified AA, extraordinary. 173-201-080(32). The water quality standard for Class AA waters is set forth at 173-201-045(1). The standard identifies the designated uses of Class AA waters as well as the criteria applicable to such waters. In addition to these specific standards applicable to Class AA waters, the State has adopted a statewide antidegradation policy. That policy provides: “(a) Existing beneficial uses shall be maintained and protected and no further degradation which would interfere with or become injurious to existing beneficial uses will be allowed. “(b) No degradation will be allowed of waters lying in national parks, national recreation areas, national wildlife refuges, national scenic rivers, and other areas of national ecological importance. “(f) In no case, will any degradation of water quality be allowed if this degradation interferes with or becomes injurious to existing water uses and causes long-term and irreparable harm to the environment.” 173-201-035(8). As required by the Act, EPA reviewed and approved the State’s water quality standards. See 33 U. S. C. § 1313(c)(3); 42 Fed. Reg. 56792 (1977). Upon approval by EPA, the state standard became “the water quality standard for the applicable waters of that State.” 33 U. S. C. § 1313(c)(3). States are responsible for enforcing water quality standards on intrastate waters. § 1319(a). In addition to these primary enforcement responsibilities, §401 of the Act requires States to provide a water quality certification before a federal license or permit can be issued for activities that may result in any discharge into intrastate navigable waters. 33 U. S. C. §1341. Specifically, §401 requires an applicant for a federal license or permit to conduct any activity “which may result in any discharge into the navigable waters” to obtain from the State a certification “that any such discharge will comply with the applicable provisions of sections [1311, 1312, 1313, 1316, and 1317 of this title].” 33 U. S. C. § 1341(a). Section 401(d) further provides that “[a]ny certification . . . shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant . . . will comply with any applicable effluent limitations and other limitations, under section [1311 or 1312 of this title] . . . and with any other appropriate requirement of State law set forth in such certification.” 33 U. S. C. § 1341(d). The limitations included in the certification become a condition on any federal license. Ibid. II Petitioners propose to build the Elkhorn Hydroelectric Project on the Dosewallips River. If constructed as presently planned, the facility would be located just outside the Olympic National Park on federally owned land within the Olympic National Forest.' The project would divert water from a 1.2-mile reach of the river (the bypass reach), run the water through turbines to generate electricity and then return the water to the river below the bypass reach. Under the Federal Power Act (FPA), 41 Stat. 1063, as amended, 16 U. S. C. § 791a et seq., the Federal Energy Regulatory Commission (FERC) has authority to license new hydroelectric facilities. As a result, petitioners must get a FERC license to build or operate the Elkhorn Project. Because a federal license is required, and because the project may result in discharges into the Dosewallips River, petitioners are also required to obtain state certification of the project pursuant to § 401 of the Clean Water Act, 33 U. S. C. § 1341. The water flow in the bypass reach, which is currently undiminished by appropriation, ranges seasonally between 149 and 738 cubic feet per second (cfs). The Dosewallips supports two species of salmon, coho and chinook, as well as steelhead trout. As originally proposed, the project was to include a diversion dam which would completely block the river and channel approximately 75% of the river’s water into a tunnel alongside the streambed. About 25% of the water would remain in the bypass reach, but would be returned to the original riverbed through sluice gates or a fish ladder. Depending on the season, this would leave a residual minimum flow of between 65 and 155 cfs in the river. Respondent undertook a study to determine the minimum stream flows necessary to protect the salmon and steelhead fishery in the bypass reach. On June 11, 1986, respondent issued a § 401 water quality certification imposing a variety of conditions on the project, including a minimum stream flow requirement of between 100 and 200 cfs depending on the season. A state administrative appeals board determined that the minimum flow requirement was intended to enhance, not merely maintain, the fishery, and that the certification condition therefore exceeded respondent’s authority under state law. App. to Pet. for Cert. 55a-57a. On appeal, the State Superior Court concluded that respondent could require compliance with the minimum flow conditions. Id., at 29a-45a. The Superior Court also found that respondent had imposed the minimum flow requirement to protect and preserve the fishery, not to improve it, and that this requirement was authorized by state law. Id., at 34a. The Washington Supreme Court held that the antidegradation provisions of the State’s water quality standards require the imposition of minimum stream flows. 121 Wash. 2d 179, 186-187, 849 P. 2d 646, 650 (1993). The court also found that § 401(d), which allows States to impose conditions based upon several enumerated sections of the Clean Water Act and “any other appropriate requirement of State law,” 33 U. S. C. § 1341(d), authorized the stream flow condition. Relying on this language and the broad purposes of the Clean Water Act, the court concluded that § 401(d) confers on States power to “consider all state action related to water quality in imposing conditions on section 401 certificates.” 121 Wash. 2d, at 192, 849 P. 2d, at 652. We granted certiorari, 510 U. S. 810 (1993), to resolve a conflict among the state courts of last resort. See 121 Wash. 2d 179, 849 P. 2d 646 (1993); Georgia Pacific Corp. v. Dept. of Environmental Conservation, 159 Vt. 639, 628 A. 2d 944 (1992) (table); Power Authority of New York v. Williams, 60 N. Y. 2d 315, 457 N. E. 2d 726 (1983). We now affirm. Ill The principal dispute in this case concerns whether the minimum stream flow requirement that the State imposed on the Elkhorn Project is a permissible condition of a § 401 certification under the Clean Water Act. To resolve this dispute we must first determine the scope of the State’s authority under §401. We must then determine whether the limitation at issue here, the requirement that petitioners maintain minimum stream flows, falls within the scope of that authority. A There is no dispute that petitioners were required to obtain a certification from the State pursuant to §401. Petitioners concede that, at a minimum, the project will result in two possible discharges — the release of dredged and fill material during the construction of the project, and the discharge of water at the end of the tailrace after the water has been used to generate electricity. Brief for Petitioners 27-28. Petitioners contend, however, that the minimum stream flow requirement imposed by the State was unrelated to these specific discharges, and that as a consequence, the State lacked the authority under §401 to condition its certification on maintenance of stream flows sufficient to protect the Dosewallips fishery. If § 401 consisted solely of subsection (a), which refers to a state certification that a “discharge” will comply with certain provisions of the Act, petitioners’ assessment of the scope of the State’s certification authority would have considerable force. Section 401, however, also contains subsection (d), which expands the State’s authority to impose conditions on the certification of a project. Section 401(d) provides that any certification shall set forth “any effluent limitations and other limitations ... necessary to assure that any applicant” will comply with various provisions of the Act and appropriate state law requirements. 33 U. S. C. § 1341(d) (emphasis added). The language of this subsection contradicts petitioners’ claim that the State may only impose water quality limitations specifically tied to a “discharge.” The text refers to the compliance of the applicant, not the discharge. Section 401(d) thus allows the State to jmpose “other limitations” on the project in general to assure compliance with various provisions of the Clean Water Act and with “any other appropriate requirement of State law.” Although the dissent asserts that this interpretation of § 401(d) renders § 401(a)(1) superfluous, post, at 726, we see no such anomaly. Section 401(a)(1) identifies the category of activities subject to certification — namely, those with discharges. And § 401(d) is most reasonably read as authorizing additional conditions and limitations on the activity as a whole once the threshold condition, the existence of a discharge, is satisfied. Our view of the statute is consistent with EPA’s regulations implementing §401. The regulations expressly interpret § 401 as requiring the State to find that “there is a reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards.” 40 CFR § 121.2(a)(3) (1993) (emphasis added). See also EPA, Wetlands and 401 Certification 23 (Apr. 1989) (“In 401(d), the Congress has given the States the authority to place any conditions on a water quality certification that are necessary to assure that the applicant will comply with effluent limitations, water quality standards,... and with ‘any other appropriate requirement of State law’ ”). • EPA’s conclusion that activities — not merely discharges — must comply with state water quality standards is a reasonable interpretation of § 401, and is entitled to deference. See, e. g., Arkansas v. Oklahoma, 503 U. S. 91, 110 (1992); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Although § 401(d) authorizes the State to place restrictions on the activity as a whole, that authority is not unbounded. The State can only ensure that the project complies with “any applicable effluent limitations and other limitations, under [33 U. S. C. §§ 1311, 1312]” or certain other provisions of the Act, “and with any other appropriate requirement of State law.” 33 U. S. C. § 1341(d). The State asserts that the minimum stream flow requirement was imposed to ensure compliance with the state water quality standards adopted pursuant to §303 of the Clean Water Act, 33 U.S. C. §1313. We agree with the State that ensuring compliance with § 303 is a proper function of the § 401 certification. Although § 303 is not one of the statutory provisions listed in § 401(d), the statute allows States to impose limitations to ensure compliance with §301 of the Act, 33 U. S. C. § 1311. Section 301 in turn incorporates § 303 by reference. See 33 U. S. C. § 1311(b)(1)(C); see also H. R. Conf. Rep. No. 95-830, p. 96 (1977) (“Section 303 is always included by reference where section 301 is listed”). As a consequence, state water quality standards adopted pursuant to § 303 are among the “other limitations” with which a State may ensure compliance through the § 401 certification process. This interpretation is consistent with EPA’s view of the statute. See 40 CFR § 121.2(a)(3) (1992); EPA, Wetlands and 401 Certification, swpra. Moreover, limitations to assure compliance with state water quality standards are also permitted by §401(d)’s reference to “any other appropriate requirement of State law.” We do not speculate on what additional state laws, if any, might be incorporated by this language. But at a minimum, limitations imposed pursuant to state water quality standards adopted pursuant to §303 are “appropriate” requirements of state law. Indeed, petitioners appear to agree that the State’s authority under § 401 includes limitations designed to ensure compliance with state water quality standards. Brief for Petitioners 9, 21. B Having concluded that, pursuant to §401, States may condition certification upon any limitations necessary to ensure compliance with state water quality standards or any other “appropriate requirement of State law,” we consider whether the minimum flow condition is such a limitation. Under §303, state water quality standards must “consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.” 33 U. S. C. § 1313(c)(2)(A). In imposing the minimum stream flow requirement, the State determined that construction and operation of the project as planned would be inconsistent with one of the designated uses of Class AA water, namely “[sjalmonid [and other fish] migration, rearing, spawning, and harvesting.” App. to Pet. for Cert. 83a-84a. The designated use of the river as a fish habitat directly reflects the Clean Water Act’s goal of maintaining the “chemical, physical, and biological integrity of the Nation’s waters.” 33 U. S. C. § 1251(a). Indeed, the Act defines pollution as “the man-made or man induced alteration of the chemical, physical, biological, and radiological integrity of water.” § 1362(19). Moreover, the Act expressly requires that, in adopting water quality standards, the State must take into consideration the use of waters for “propagation of fish and wildlife.” § 1313(c)(2)(A). Petitioners assert, however, that §303 requires the State to protect designated uses solely through implementation of specific “criteria.” According to petitioners, the State may not require them to operate their dam in a manner consistent with a designated “use”; instead, say petitioners, under § 303 the State may only require that the project comply with specific numerical “criteria.” We disagree with petitioners’ interpretation of the language of § 303(c)(2)(A). Under the statute, a water quality standard must “consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.” 33 U. S. C. § 1313(c)(2)(A) (emphasis added). The text makes it plain that water quality standards contain two components. We think the language of § 303 is most naturally read to require that a project be consistent with both components, namely, the designated use and the water quality criteria. Accordingly, under the literal terms of the statute, a project that does not comply with a designated use of the water does not comply with the applicable water quality standards. Consequently, pursuant to § 401(d) the State may require that a permit applicant comply with both the designated uses and the water quality criteria of the state standards. In granting certification pursuant to § 401(d), the State “shall set forth any ... limitations ... necessary to assure that [the applicant] will comply with any ... limitations under [§ 303] . . . and with any other appropriate requirement of State law.” A certification requirement that an applicant operate the project consistently with state water quality standards— i. e., consistently with the designated uses of the water body and the water quality criteria — is both a “limitation” to assure “compliance] with . . . limitations” imposed under § 303, and an “appropriate” requirement of state law. EPA has not interpreted §303 to require the States to protect designated uses exclusively through enforcement of numerical criteria. In its regulations governing state water quality standards, EPA defines criteria as “elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports a particular use.” 40 CFR § 131.3(b) (1993) (emphasis added). The regulations further provide that “[w]hen criteria are met, water quality will generally protect the designated use.” Ibid, (emphasis added). Thus, the EPA regulations implicitly recognize that in some circumstances, criteria alone are insufficient to protect a designated use. Petitioners also appear to argue that use requirements are too open ended, and that the Act only contemplates enforcement of the more specific and objective “criteria.” But this argument is belied by the open-ended nature of the criteria themselves. As the Solicitor General points out, even “criteria” are often expressed in broad, narrative terms, such as “ ‘there shall be no discharge of toxic pollutants in toxic amounts.’” Brief for United States as Amicus Curiae 18. See American Paper Institute, Inc. v. EPA, 996 F. 2d 346, 349 (CADC 1993). In fact, under the Clean Water Act, only one class of criteria, those governing “toxic pollutants listed pursuant to section 1317(a)(1),” need be rendered in numerical form. See 33 U. S. C. § 1313(c)(2)(B); 40 CFR § 131.11(b)(2) (1993). Washington’s Class A A water quality standards are typical in that they contain several open-ended criteria which, like the use designation of the river as a fishery, must be translated into specific limitations for individual projects. For example, the standards state that “[t]oxic, radioactive, or deleterious material concentrations shall be less than those which may affect public health, the natural aquatic environment, or the desirability of the water for any use.” WAC 173-201-045(l)(c)(vii) (1986). Similarly, the state standards specify that “[ajesthetic values shall not be impaired by the presence of materials or their effects, excluding those of natural origin, which offend the senses of sight, smell, touch, or taste.” 173-201-045(l)(c)(viii). We think petitioners’ attempt to distinguish between uses and criteria loses much of its force in light of the fact that the Act permits enforcement of broad, narrative criteria based on, for example, “aesthetics.” Petitioners further argue that enforcement of water quality standards through use designations renders the water quality criteria component of the standards irrelevant. We see no anomaly, however, in the State’s reliance on both use designations and criteria to protect water quality. The specific numerical limitations embodied in the criteria are a convenient enforcement mechanism for identifying minimum water conditions which will generally achieve the requisite water quality. And, in most circumstances, satisfying the criteria will, as EPA recognizes, be sufficient to maintain the designated use. See 40 CFR § 131.3(b) (1993). Water quality standards, however, apply to an entire class of water, a class which contains numerous individual water bodies. For example, in the State of Washington, the Class AA water quality standard applies to 81 specified fresh surface waters, as well as to all “surface waters lying within the mountainous regions of the state assigned to national parks, national forests, and/or wilderness areas,” all “lakes and their feeder streams within the state,” and all “unclassified surface waters that are tributaries to Class A A waters.” WAC 173-201-070 (1986). While enforcement of criteria will in general protect the uses of these diverse waters, a complementary requirement that activities also comport with designated uses enables the States to ensure that each activity— even if not foreseen by the criteria — will be consistent with the specific uses and attributes of a particular body of water. Under petitioners’ interpretation of the statute, however, if a particular criterion, such as turbidity, were missing from the list contained in an individual state water quality standard, or even if an existing turbidity criterion were insufficient to protect a particular species of fish in a particular river, the State would nonetheless be forced to allow activities inconsistent with the existing or designated uses. We think petitioners’ reading leads to an unreasonable interpretation of the Act. The criteria components of state water quality standards attempt to identify, for all the water bodies in a given class, water quality requirements generally sufficient to protect designated uses. These criteria, however, cannot reasonably be expected to anticipate all the water quality issues arising from every activity that can affect the State’s hundreds of individual water bodies. Requiring the States to enforce only the criteria component of their water quality standards would in essence require the States to study to a level of great specificity each individual surface water to ensure that the criteria applicable to that water are sufficiently detailed and individualized to folly protect the water’s designated uses. Given that there is no textual support for imposing this requirement, we are loath to attribute to Congress an intent to impose this heavy regulatory burden on the States. The State also justified its minimum stream flow as necessary to implement the “antidegradation policy” of §303, 33 U. S. C. § 1313(d)(4)(B). When the Clean Water Act was enacted in 1972, the water quality standards of all 50 States had antidegradation provisions. These provisions were required by federal law. See U. S. Dept, of Interior, Federal Water Pollution Control Administration, Compendium of Department of Interior Statements on Non-degradation of Interstate Waters 1-2 (Aug. 1968); see also Hines, A Decade of Nondegradation Policy in Congress and the Courts: The Erratic Pursuit of Clean Air and Clean Water, 62 Iowa L. Rev. 643, 658-660 (1977). By providing in 1972 that existing state water quality standards would remain in force until revised, the Clean Water Act ensured that the States would continue their antidegradation programs. See 33 U. S. C. § 1313(a). EPA has consistently required that revised state standards incorporate an antidegradation policy. And, in 1987, Congress explicitly recognized the existence of an “antidegradation policy established under [§303].” § 1313(d)(4)(B). EPA has promulgated regulations implementing §303’s antidegradation policy, a phrase that is not defined elsewhere in the Act. These regulations require States to “develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy.” 40 CFR §131.12 (1993). These “implementation methods shall, at a minimum, be consistent with the . . . [e]xisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.” Ibid. EPA has explained that under its antidegradation regulation, “no activity is allowable . . . which could partially or completely eliminate any existing use.” EPA, Questions and Answers on Antidegradation 3 (Aug. 1985). Thus, States must implement their antidegradation policy in a manner “consistent” with existing uses of the stream. The State of Washington’s antidegradation policy in turn provides that “[e]xisting beneficial uses shall be maintained and protected and no further degradation which would interfere with or become injurious to existing beneficial uses will be allowed.” WAC 173-201-035(8)(a) (1986). The State concluded that the reduced stream flows would have just the effect prohibited by this policy. The Solicitor General, representing EPA, asserts, Brief for United States as Amicus Curiae 18-21, and we agree, that the State’s minimum stream flow condition is a proper application of the state and federal anti-degradation regulations, as it ensures that an “[ejxisting instream water us[e]” will be “maintained and protected.” 40 CFR § 131.12(a)(1) (1993). Petitioners also assert more generally that the Clean Water Act is only concerned with water “quality,” and does not allow the regulation of water “quantity.” This is an artificial distinction. In many cases, water quantity is closely related to water quality' a sufficient lowering of the water quantity in a body of water could destroy all of its designated, uses, be it for drinking water,, recreation* navigation or, as here, as a fishery. In any event, there is recognition in the Clean Water Act itself that reduced stream flow, i. e., diminishment of water quantity, can constitute water pollution. First, the Act’s definition of pollution as “the man-made or man induced alteration of the chemical, physical, biological, and radiological integrity of water” encompasses the effects of reduced water quantity. 33 U. S. C. § 1362(19). This broad conception of pollution — one which expressly evinces Congress’ concern with the physical and biological integrity of water — refutes petitioners’ assertion that the Act draws a sharp distinction between the regulation of water “quantity” and water “quality.” Moreover, § 304 of the Act expressly recognizes that water “pollution” may result from “changes in the movement, flow, or circulation of any navigable waters .. ., including changes caused by the construction of dams.” 33 U. S. C. § 1314(f). This concern with the flowage effects of dams and other diversions is also embodied in the EPA regulations, which expressly require existing dams to be operated to attain designated uses. 40 CFR § 131.10(g)(4) (1992). Petitioners assert that two other provisions of the Clean Water Act, §§ 101(g) and 510(2), 33 U. S. C. §§ 1251(g) and 1370(2), exclude the regulation of water quantity from the coverage of the Act. Section 101(g) provides “that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this chapter.” 33 U. S. C. § 1251(g). Similarly, § 510(2) provides that nothing in the Act shall “be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters ... of such States.” 33 U. S. C. § 1370. In petitioners’ view, these provisions exclude “water quantity issues from direct regulation under the federally controlled water quality standards authorized in §303.” Brief for Petitioners 39 (emphasis deleted). This language gives the States authority to allocate water rights; we therefore find it peculiar that petitioners argue that it prevents the State from regulating stream flow. In any event, we read these provisions more narrowly than petitioners. Sections 101(g) and 510(2) preserve the authority of each State to allocate water quantity as between users; they do not limit the scope of water pollution controls that may be imposed on users who have obtained, pursuant to state law, a water allocation. In California v. FERC, 495 U. S. 490, 498 (1990), construing an analogous provision of the Federal Power Act, we explained that “minimum stream flow requirements neither reflect nor establish ‘proprietary rights’ ” to water. Cf. First Iowa Hydro-Electric Cooperative v. FPC, 328 U. S. 152, 176, and n. 20 (1946). Moreover, the certification itself does not purport to determine petitioners’ proprietary right to the water of the Dosewallips. In fact, the certification expressly states that a “State Water Right Permit (Chapters 90.03.250 RCW and 508-12 WAC) must be obtained prior to commencing construction of the project.” App. to Pet. for Cert. 83a. The certification merely determines the nature of the use to which that proprietary right may be put under the Clean Water Act, if and when it is obtained from the State. Our view is reinforced by the legislative history of the 1977 amendment to the Clean Water Act adding § 101(g). See 3 Legislative History of the Clean Water Act of 1977 (Committee Print compiled for the Committee on Environment and Public Works by the Library of Congress), Ser. No. 95-14, p. 532 (1978) (“The requirements [of the Act] may incidentally affect individual water rights. ... It is not the purpose of this amendment to prohibit those incidental effects. It is the purpose of this amendment to insure that State allocation systems are not subverted, and that effects on individual rights, if any, are prompted by legitimate and necessary water quality considerations”). IV Petitioners contend that we should limit the State’s authority to impose minimum flow requirements because FERC has comprehensive authority to license hydroelectric projects pursuant to the FPA, 16 U. S. C. §791a et seq. In petitioners’ view, the minimum flow requirement imposed here interferes with FERC’s authority under the FPA. The FPA empowers FERC to issue licenses for projects “necessary or convenient... for the development, transmission, and utilization of power across, along, from, or in any of the streams . . . over which Congress has jurisdiction.” § 797(e). The FPA also requires FERC to consider a project’s effect on fish and wildlife. §§ 797(e), 803(a)(1). In California v. FERC, supra, we held that the California Water Resources Control Board, acting pursuant to state law, could not impose a minimum stream flow which conflicted with minimum stream flows contained in a FERC license. We concluded that the FPA did not “save” to the States this authority. Id., at 498. No such conflict with any FERC licensing activity is presented here. FERC has not yet acted on petitioners’ license application, and it is possible that FERC will eventually deny petitioners’ application altogether. Alternatively, it is quite possible, given that FERC is required to give equal consideration to the protection of fish habitat when deciding whether to issue a license, that any FERC license would contain the same conditions as the state § 401 certification. Indeed, at oral argument the Deputy Solicitor General stated that both EPA and FERC were represented in this proceeding, and that the Government has no objection to the stream flow condition contained in the §401 certification. Tr. of Oral Arg. 43-44. Finally, the requirement for a state certification applies not only to applications for licenses from FERC, but to all federal licenses and permits for activities which may result in a discharge into the Nation’s navigable waters. For example, a permit from the Army Corps of Engineers is required for the installation of any structure in the navigable waters which may interfere with navigation, including piers, docks, and ramps. Rivers and Harbors Appropriation Act of 1899, 30 Stat. 1151, §10, 33 U. S. C. §403. Similarly, a permit must be obtained from the Army Corps of Engineers for the discharge of dredged or fill material, and from the Secretary of the Interior or Agriculture for the construction of reservoirs, canals, and other water storage systems on federal land. See 33 U. S. C. §§ 1344(a), (e); 43 U. S. C. § 1761 (1988 ed. and Supp. IV). We assume that a §401 certification would also be required for some licenses obtained pursuant to these statutes. Because § 401’s certification requirement applies to other statutes and regulatory schemes, and because any conflict with FERC’s authority under the FPA is hypothetical, we are unwilling to read implied limitations into §401. If FERC issues a license containing a stream flow condition with which petitioners disagree, they may pursue judicial remedies at that time. Cf. Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U. S. 765, 778, n. 20 (1984). In summary, we hold that the State may include minimum stream flow requirements in a certification issued pursuant to §401 of the Clean Water Act insofar as necessary to enforce a designated use contained in a state water quality standard. The judgment of the Supreme Court of Washington, accordingly, is affirmed. So ordered. WAC 173-201-045(1) (1986) provides in pertinent part: “(1) Class AA (extraordinary). “(a) General characteristic. Water quality of this class shall markedly and uniformly exceed the requirements for all or substantially all uses. “(b) Characteristic uses. Characteristic uses shall include, but not be limited to, the following: “(i) Water supply (domestic, industrial, agricultural). “(ii) Stock watering. “(iii) Fish and shellfish: “Salmonid migration, rearing, spawning, and harvesting. “Other fish migration, rearing, spawning, and harvesting. “(iv) Wildlife habitat. “(v) Recreation (primary contact recreation, sport fishing, boating, and aesthetic enjoyment). “(vi) Commerce and navigation. “(c) Water quality criteria “(i) Fecal coliform organisms. “(A) Freshwater — fecal coliform organisms shall not exceed a geometric mean value of 50 organisms/100 mL, with not more than 10 percent of samples exceeding 100 organisms/100 mL. “(B) Marine water — fecal coliform organisms shall not exceed a geometric mean value of 14 organisms/100 mL, with not more than 10 percent of samples exceeding 43 organisms/100 mL. “(ii) Dissolved oxygen [shall exceed specific amounts]. “(iii) Total dissolved gas shall not exceed 110 percent of saturation at any point of sample collection. “(iv) Temperature shall not exceed [certain levels]. “(v) pH shall be within [a specified range]. “(vi) Turbidity shall not exceed [specific levels]. “(vii) Toxic, radioactive, or deleterious material concentrations shall be less than those which may affect public health, the natural aquatic environment, or the desirability of the water for any use. “(viii) Aesthetic values shall not be impaired by the presence of materials or their effects, excluding those of natural origin, which offend the senses of sight, smell, touch, or taste.” Section 401, as set forth in 33 U. S. C. § 1341, provides in relevant part: “(a) Compliance with applicable requirements; application; procedures; license suspension “(1) Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State . . . that any such discharge will comply with the applicable provisions of sections 1311,1312,1313,1316, and 1317 of this title. “(d) Limitations and monitoring requirements of certification “Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, standard of performance under section 1316 of this title, or prohibition, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section.” The dissent asserts that §301 is concerned solely with discharges, not broader water quality standards. Post, at 730, n. 2. Although §301 does make certain discharges unlawful, see 33 U. S. C. § 1311(a), it also contains a broad enabling provision which requires States to take certain actions, to wit: “In order to carry out the objective of this chapter [viz. the chemical, physical, and biological integrity of the Nation’s water] there shall be achieved ... not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards,... established pursuant to any State law or regulations____” 33 U. S. C. § 1311(b)(1)(C). This provision of §301 expressly refers to state water quality standards, and is not limited to discharges. The relevant text of the Federal Power Act provides: “That nothing herein contained shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein.” 41 Stat. 1077,16 U. S. C. §821.

Pud No. 1 of Jefferson County v. Washington Department of Ecology

Justice Stevens, concurring. While I agree fully with the thorough analysis in the Court’s opinion, I add this comment for emphasis. For judges who find it unnecessary to go behind the statutory text to discern the intent of Congress, this is (or should be) an easy case. Not a single sentence, phrase, or word in the Clean Water Act purports to place any constraint on a State’s power to regulate the quality of its own waters more stringently than federal law might require. In fact, the Act explicitly recognizes States’ ability to impose stricter standards. See, e. g., § 301(b)(1)(C), 33 U. S. C. § 1311(b)(1)(C).

Pud No. 1 of Jefferson County v. Washington Department of Ecology

Justice Thomas, with whom Justice Scalia joins, dissenting. The Court today holds that a State, pursuant to §401 of the Clean Water Act, may condition the certification necessary to obtain a federal license for a proposed hydroelectric project upon the maintenance of a minimum flow rate in the river to be utilized by the project. In my view, the Court makes three fundamental errors. First, it adopts an interpretation that fails adequately to harmonize the subsections of §401. Second, it places no meaningful limitation on a State’s authority under § 401 to impose conditions on certification. Third, it gives little or no consideration to the fact that its interpretation of §401 will significantly disrupt the carefully crafted federal-state balance embodied in the Federal Power Act. Accordingly, I dissent. I A Section 401(a)(1) of the Federal Water Pollution Control Act, otherwise known as the Clean Water Act (CWA or Act), 33 U. S. C. § 1251 et seq., provides that “[a]ny applicant for a Federal license or permit to conduct any activity ... , which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates ... that any such discharge will comply with . . . applicable provisions of [the CWA].” 33 U.S.C. § 1341(a)(1). The terms of § 401(a)(1) make clear that the purpose of the certification process is to ensure that discharges from a project will meet the requirements of the CWA. Indeed, a State’s authority under § 401(a)(1) is limited to certifying that “any discharge” that “may result” from “any activity,” such as petitioners’ proposed hydroelectric project, will “comply” with the enumerated provisions of the CWA; if the discharge will fail to comply, the State may “den[y]” the certification. Ibid. In addition, under § 401(d), a State may place conditions on a §401 certification, including “effluent limitations and other limitations, and monitoring requirements,” that may be necessary to ensure compliance with various provisions of the CWA and with “any other appropriate requirement of State law.” § 1341(d). The minimum stream flow condition imposed by respondents in this case has no relation to any possible “discharge” that might “result” from petitioners’ proposed project. The term “discharge” is not defined in the CWA, but its plain and ordinary meaning suggests “a flowing or issuing out,” or “something that is emitted.” Webster’s Ninth New Collegiate Dictionary 360 (1991). Cf. 33 U. S. C. § 1362(16) (“The term ‘discharge’ when used without qualification includes a discharge of a pollutant, and a discharge of pollutants”). A minimum stream flow requirement, by contrast, is a limitation on the amount of water the project can take in or divert from the river. See ante, at 709. That is, a minimum stream flow requirement is a limitation on intake — the opposite of discharge. Imposition of such a requirement would thus appear to be beyond a State’s authority as it is defined by § 401(a)(1). The Court remarks that this reading of § 401(a)(1) would have “considerable force,” ante, at 711, were it not for what the Court understands to be the expansive terms of § 401(d). That subsection, as set forth in 33 U. S. C. § 1341(d), provides: “Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, stándard of performance under section 1316 of this title, or prohibition, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section.” (Emphasis added.) According to the Court, the fact that § 401(d) refers to an “applicant,” rather than a “discharge,” complying with various provisions of the Act “contradicts petitioners’ claim that the State may only impose water quality limitations specifically tied to a ‘discharge.’” Ante, at 711. In the Court’s view, §401(d)’s reference to an applicant’s compliance “expands” a State’s authority beyond the limits set out in § 401(a)(1), ibid., thereby permitting the State in its certification process to scrutinize the applicant’s proposed “activity as a whole,” not just the discharges that may result from the activity, ante, at 712. The Court concludes that this broader authority allows a State to impose conditions on a § 401 certification that are unrelated to discharges. Ante, at 711-712. While the Court’s interpretation seems plausible at first glance, it ultimately must fail. If, as the Court asserts, § 401(d) permits States to impose conditions unrelated to discharges in § 401 certifications, Congress’ careful focus on discharges in § 401(a)(1) — the provision that describes the scope and function of the certification process — was wasted effort. The power to set conditions that are unrelated to discharges is, of course, nothing but a conditional power to deny certification for reasons unrelated to discharges. Permitting States to impose conditions unrelated to discharges, then, effectively eliminates the constraints of § 401(a)(1). Subsections 401(a)(1) and (d) can easily be reconciled to avoid this problem. To ascertain the nature of the conditions permissible under § 401(d), §401 must be read as a whole. See United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988) (statutory interpretation is a “holistic endeavor”). As noted above, § 401(a)(1) limits a State’s authority in the certification process to addressing concerns related to discharges and to ensuring that any discharge resulting from a project will comply with specified provisions of the Act. It is reasonable to infer that the conditions a State is permitted to impose on certification must relate to the very purpose the certification process is designed to serve. Thus, while § 401(d) permits a State to place conditions on a certification to ensure compliance of the “applicant,” those conditions must still be related to discharges. In my view, this interpretation best harmonizes the subsections of §401. Indeed, any broader interpretation of § 401(d) would permit that subsection to swallow § 401(a)(1). The text of § 401(d) similarly suggests that the conditions it authorizes must be related to discharges. The Court attaches critical weight to the fact that § 401(d) speaks of the compliance of an “applicant,” but that reference, in and of itself, says little about the nature of the conditions that may be imposed under § 401(d). Rather, because § 401(d) conditions can be imposed only to ensure compliance with specified provisions of law — that is, with “applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, standard[s] of performance under section 1316 of this title,... prohibition^], effluent standard^], or pretreatment standardes] under section 1317 of this title, [or]... any other appropriate requirement^] of State law” — one should logically turn to those provisions for guidance in determining the nature, scope, and purpose of § 401(d) conditions. Each of the four identified CWA provisions describes discharge-related limitations. See § 1311 (making it unlawful to discharge any pollutant except in compliance with enumerated provisions of the Act); §1312 (establishing effluent limitations on point source discharges); §1316 (setting national standards of performance for the control of discharges); and § 1317 (setting pretreatment effluent standards and prohibiting the discharge of certain effluents except in compliance with standards). The final term on the list — “appropriate requirement^] of State law” — appears to be more general in scope. Because this reference follows a list of more limited provisions that specifically address discharges, however, the principle ejusdem generis would suggest that the general reference to “appropriate” requirements of state law is most reasonably construed to extend only to provisions that, like the other provisions in the list, impose discharge-related restrictions. Cf. Cleveland v. United States, 329 U. S. 14, 18 (1946) (“Under the ejusdem generis rule of construction the general words are confined to the class and may not be used to enlarge it”); Arcadia v. Ohio Power Co., 498 U. S. 73, 84 (1990). In sum, the text and structure of §401 indicate that a State may impose under § 401(d) only those conditions that are related to discharges. B The Court adopts its expansive reading of § 401(d) based at least in part upon deference to the “conclusion” of the Environmental Protection Agency (EPA) that § 401(d) is not limited to requirements relating to discharges. Ante, at 712. The agency regulation to which the Court defers is 40 CFR § 121.2(a)(3) (1993), which provides that the certification shall contain “[a] statement that there is a reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards.” Ante, at 712. According to the Court, “EPA’s conclusion that activities — not merely discharges — must comply with state water quality standards ... is entitled to deference” under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Ante, at 712. As a preliminary matter, the Court appears to resort to deference under Chevron without establishing through an initial examination of the statute that the text of the section is ambiguous. See Chevron, supra, at 842-843. More importantly, the Court invokes Chevron deference to support its interpretation even though the Government does not seek deference for the EPA’s regulation in this case. That the. Government itself has not contended that an agency interpretation exists reconciling the scope of the conditioning authority under § 401(d) with the terms of § 401(a)(1) should suggest to the Court that there is no “agenc[y] construction” directly addressing the question. Chevron, supra, at 842. In fact, the regulation to which the Court defers is hardly a definitive construction of the scope of § 401(d). On the contrary, the EPA’s position on the question whether conditions under § 401(d) must be related to discharges is far from clear. Indeed, the only EPA regulation that specifically addresses the “conditions” that may appear in §401 certifications speaks exclusively in terms of limiting discharges. According to the EPA, a §401 certification shall contain “[a] statement of any conditions which the certifying agency deems necessary or desirable with respect to the discharge of the activity” 40 CFR § 121.2(a)(4) (1993) (emphases added). In my view, § 121.2(a)(4) should, at the very least, give the Court pause before it resorts to Chevron deference in this case. II The Washington Supreme Court held that the State’s water quality standards, promulgated pursuant to §303 of the Act, 33 U. S. C. § 1313, were “appropriate” requirements of state law under § 401(d), and sustained the stream flow condition imposed by respondents as necessary to ensure compliance with a “use” of the river as specified in those standards. As an alternative to their argument that § 401(d) conditions must be discharge related, petitioners assert that the state court erred when it sustained the stream flow condition under the “use” component of the State’s water quality-standards without reference to the corresponding “water quality criteria” contained in those standards. As explained above, petitioners’ argument with regard to the scope of a State’s authority to impose conditions under § 401(d) is correct. I also find petitioners’ alternative argument persuasive. Not only does the Court err in rejecting that §303 argument, in the process of doing so it essentially removes all limitations on a State’s conditioning authority under § 401. The Court states that, “at a minimum, limitations imposed pursuant to state water quality standards adopted pursuant to §303 are ‘appropriate’ requirements of state law” under § 401(d). Ante, at 713. A water quality standard promulgated pursuant to § 303 must “consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.” 33 U. S. C. § 1313(c)(2)(A). The Court asserts that this language “is most naturally read to require that a project be consistent with both components, namely, the designated use and the water quality criteria.” Ante, at 715. In the Court’s view, then, the “use” of a body of water is independently enforceable through § 401(d) without reference to the corresponding criteria. Ibid. The Court’s reading strikes me as contrary to common sense. It is difficult to see how compliance with a “use” of a body of water could be enforced without reference to the corresponding criteria. In this case, for example, the applicable “use” is contained in the following regulation: “Characteristic uses shall include, but not be limited to,. . . [sjalmonid migration, rearing, spawning, and harvesting.” Wash. Admin. Code (WAC) 173-201-045(l)(b)(iii) (1986). The corresponding criteria, by contrast, include measurable factors such as quantities of fecal coliform organisms and dissolved gases in the water. 173-201-045(l)(c)(i) and (ii). Although the Act does not further address (at least not expressly) the link between “uses” and “criteria,” the regulations promulgated under § 303 make clear that a “use” is an aspirational goal to be attained through compliance with corresponding “criteria.” Those regulations suggest that “uses” are to be “achieved and protected,” and that “water quality criteria” are to be adopted to “protect the designated use[s].” 40 CFR §§ 131.10(a), 131.11(a)(1) (1993). The problematic consequences of decoupling “uses” and “criteria” become clear once the Court’s interpretation of §303 is read in the context of §401. In the Court’s view, a State may condition the §401 certification “upon any limitations necessary to ensure compliance” with the “uses of the water body.” Ante, at 713-714, 715 (emphasis added). Under the Court’s interpretation, then, state environmental agencies may pursue, through § 401, their water goals in any way they choose; the conditions imposed on certifications need not relate to discharges, nor to water quality criteria, nor to any objective or quantifiable standard, so long as they tend to make the water more suitable for the uses the State has chosen. In short, once a State is allowed to impose conditions on §401 certifications to protect “uses” in the abstract, § 401(d) is limitless. To illustrate, while respondents in this case focused only on the “use” of the Dosewallips River as a fish habitat, this particular river has a number of other “[characteristic uses,” including “[r]ecreation (primary contact recreation, sport fishing, boating, and aesthetic enjoyment).” WAC 173-201-045(l)(b)(v) (1986). Under the Court’s interpretation, respondents could have imposed any number of conditions related to recreation, including conditions that have little relation to water quality. In Town of Summersville, 60 FERC ¶ 61,291, p. 61,990 (1992), for instance, the state agency required the applicant to “construct. . . access roads and paths, low water stepping stone bridges, ... a boat launching facility ..., and a residence and storage building.” These conditions presumably would be sustained under the approach the Court adopts today. In the end, it is difficult to conceive of a condition that would fall outside a State’s § 401(d) authority under the Court’s approach. Ill The Court’s interpretation of §401 significantly disrupts the careful balance between state and federal interests that Congress struck in the Federal Power Act (FPA), 16 U. S. C. § 791 et seq. Section 4(e) of the FPA authorizes the Federal Energy Regulatory Commission (FERC) to issue licenses for projects “necessary or convenient ... for the development, transmission, and utilization of power across, along, from, or in any of the streams . . . over which Congress has jurisdiction.” 16 U. S. C. § 797(e). In the licensing process, FERC must balance a number of considerations: “[I]n addition to the power and development purposes for which licenses are issued, [FERC] shall give equal consideration to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality.” Ibid. Section 10(a) empowers FERC to impose on a license such conditions, including minimum stream flow requirements, as it deems best suited for power development and other public uses of the waters. See 16 U. S. C. § 803(a); California v. FERC, 495 U. S. 490, 494-495, 506 (1990). In California v. FERC, the Court emphasized FERC’s exclusive authority to set the stream flow levels to be maintained by federally licensed hydroelectric projects. California, in order “to protect [a] stream’s fish,” had imposed flow rates on a federally licensed project that were significantly higher than the flow rates established by FERC. Id., at 493. In concluding that California lacked authority to impose such flow rates, we stated: “As Congress directed in FPA § 10(a), FERC set the conditions of the [project] license, including the minimum stream flow, after considering which requirements would best protect wildlife and ensure that the project would be economically feasible, and thus further power development. Allowing California to impose significantly higher minimum stream flow requirements would disturb and conflict with the balance embodied in that considered federal agency determination. FERC has indicated that the California requirements interfere with its comprehensive planning authority, and we agree that allowing California to impose the challenged requirements would be contrary to congressional intent regarding the Commission’s licensing authority and would constitute a veto of the project that was approved and licensed by FERC.” Id., at 506-507 (citations and internal quotation marks omitted). California v. FERC reaffirmed our decision in First Iowa Hydro-Electric Cooperative v. FPC, 328 U. S. 152,164 (1946), in which we warned against “vesting] in [state authorities] a veto power” over federal hydroelectric projects. Such authority, we concluded, could “destroy the effectiveness” of the FPA and “subordinate to the control of the State the ‘comprehensive’ planning” with which the administering federal agency (at that time the Federal Power Commission) was charged. Ibid. Today, the Court gives the States precisely the veto power over hydroelectric projects that we determined in California v. FERC and First Iowa they did not possess. As the language of § 401(d) expressly states, any condition placed in a §401 certification, including, in the Court’s view, a stream flow requirement, “shall become a condition on any Federal license or permit.” 33 U. S. C. § 1341(d) (emphasis added). Any condition imposed by a State under § 401(d) thus becomes a “ter[m]... of the license as a matter of law,” Department of Interior v. FERC, 952 F. 2d 538, 548 (CADC 1992) (citation and internal quotation marks omitted), regardless of whether FERC favors the limitation. Because of § 401(d)’s mandatory language, federal courts have uniformly held that FERC has no power to alter or review § 401 conditions, and that the proper forum for review of those conditions is state court. Section 401(d) conditions imposed by States are therefore binding on FERC. Under the Court’s interpretation, then, it appears that the mistake of the State in California v. FERC was not that it had trespassed into territory exclusively reserved to FERC; rather, it simply had not hit upon the proper device — that is, the § 401 certification— through which to achieve its objectives. Although the Court notes in passing that “[t]he limitations included in the certification become a condition on any federal license,” ante, at 708, it does not acknowledge or discuss the shift of power from FERC to the States that is accomplished by its decision. Indeed, the Court merely notes that “any conflict with FERC’s authority under the FPA” in this case is “hypothetical” at this stage, ante, at 723, because “FERC has not yet acted on petitioners’ license application,” ante, at 722. We are assured that “it is quite possible . . . that any FERC license would contain the same conditions as the state §401 certification.” Ibid. The Court’s observations simply miss the point. Even if FERC might have no objection to the stream flow condition established by respondents in this case, such a happy coincidence will likely prove to be the exception, rather than the rule. In issuing licenses, FERC must balance the Nation’s power needs together with the need for energy conservation, irrigation, flood control, fish and wildlife protection, and recreation. 16 U. S. C. § 797(e). State environmental agencies, by contrast, need only consider parochial environmental interests. Cf., e. g., Wash. Rev. Code § 90.54.010(2) (1992) (goal of State’s water policy is to “insure that waters of the state are protected and fully utilized for the greatest benefit to the people of the state of Washington”). As a result, it is likely that conflicts will arise between a FERC-established stream flow level and a state-imposed level. Moreover, the Court ignores the fact that its decision nullifies the congressionally mandated process for resolving such state-federal disputes when they develop. Section 10(j)(l) of the FPA, 16 U. S. C. § 803( j)(l), which was added as part of the Electric Consumers Protection Act of 1986 (ECPA), 100 Stat. 1244, provides that every FERC license must include conditions to “protect, mitigate damag[e] to, and enhance” fish and wildlife, including “related spawning grounds and habitat,” and that such conditions “shall be based on recommendations” received from various agencies, including state fish and wildlife agencies. If FERC believes that a recommendation from a state agency is inconsistent with the FPA — that is, inconsistent with what FERC views as the proper balance between the Nation’s power needs and environmental concerns — it must “attempt to resolve any such inconsistency, giving due weight to the recommendations, expertise, and statutory responsibilities” of the state agency. § 803(j)(2). If, after such an attempt, FERC “does not adopt in whole or in part a recommendation of any [state] agency,” it must publish its reasons for rejecting that recommendation. Ibid. After today’s decision, these procedures are a dead letter with regard to stream flow levels, because a State’s “recommendation” concerning stream flow “shall” be included in the license when it is imposed as a condition under § 401(d). More fundamentally, the 1986 amendments to the FPA simply make no sense in the stream flow context if, in fact, the States already possessed the authority to establish minimum stream flow levels under § 401(d) of the CWA, which was enacted years before those amendments. Through the ECPA, Congress strengthened the role of the States in establishing FERC conditions, but it did not make that authority paramount. Indeed, although Congress could have vested in the States the final authority to set stream flow conditions, it instead left that authority with FERC. See California v. FERC, 495 U. S., at 499. As the Ninth Circuit observed in the course of rejecting California’s effort to give California v. FERC a narrow reading, “[t]here would be no point in Congress requiring [FERC] to consider the state agency recommendations on environmental matters and make its own decisions about which to accept, if the state agencies had the power to impose the requirements themselves.” Sayles Hydro Associates v. Maughan, 985 F. 2d 451, 456 (1993). Given the connection between § 401 and federal hydroelectric licensing, it is remarkable that the Court does not at least attempt to fit its interpretation of § 401 into the larger statutory framework governing the licensing process. At the very least, the significant impact the Court’s ruling is likely to have on that process should compel the Court to undertake a closer examination of §401 to ensure that the result it reaches was mandated by Congress. IV Because the Court today fundamentally alters the federal-state balance Congress carefully crafted in the FPA, and because such a result is neither mandated nor supported by the text of § 401, I respectfully dissent. The Government, appearing as amicus curiae “supporting affirmance,” instead approaches the question presented by assuming, arguendo, that petitioners’ construction of § 401 is correct: “Even if a condition imposed under Section 401(d) were valid only if it assured that a ‘discharge’ will comply with the State’s water quality standards, the [minimum flow condition set by respondents] satisfies that test.” Brief for United States as Amicus Curiae 11. In the Court’s view, § 303 water quality standards come into play under § 401(d) either as “appropriate” requirements of state law or through §301 of the Act, which, according to the Court, “incorporates §303 by reference.” Ante, at 713 (citations omitted). The Court notes that through §303, “the statute allows States to impose limitations to ensure compliance with §301 of the Act.” Ibid. Yet §301 makes unlawful only “the [unauthorized] discharge of any pollutant by any person.” 33 U. S. C. § 1311(a) (emphasis added); cf. supra, at 727. Thus, the Court’s reliance on §301 as a source of authority to impose conditions unrelated to discharges is misplaced. Respondents concede that petitioners’ project “will likely not violate any of Washington’s water quality criteria.” Brief for Respondents 24. Indeed, as the §401 certification stated in this case, the flow levels imposed by respondents are “in excess of those required to maintain water quality in the bypass region,” App. to Pet. for Cert. 83a, and therefore conditions not related to water quality must, in the Court’s view, be permitted. See, e.g., Keating v. FERC, 927 F. 2d 616, 622 (CADC 1991) (federal review inappropriate because a decision to grant or deny § 401 certification “presumably turns on questions of substantive state environmental law— an area that Congress expressly intended to reserve to the states and concerning which federal agencies have little competence”); Department of Interior v. FERC, 952 F. 2d, at 548; United States v. Marathon Development Corp., 867 F. 2d 96, 102 (CA1 1989); Proffitt v. Rohm & Haas, 850 F. 2d 1007, 1009 (CA3 1988). FERC has taken a similar position. See Town of Summersville, 60 FERC ¶ 61,291, p. 61,990 (1992) (“[S]ince pursuant to Section 401(d) ... all of the conditions in the water quality certification must become conditions in the license, review of the appropriateness of the conditions is within the purview of state courts and not the Commission. The only alternatives available to the Commission are either to issue a license with the conditions included or to deny” the application altogether); accord, Central Maine Power Co., 52 FERC ¶ 61,033, pp. 61,172-61,173 (1990).

Shanty Town Associates Ltd. Partnership v. Environmental Protection Agency

JAMES DICKSON PHILLIPS, Circuit Judge: This action by a developer challenges the Environmental Protection Agency’s imposition of certain restrictive conditions upon funds it granted to a municipality for the construction of a sewage collection system under the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1251-1376. The district court rejected the challenge. Because we conclude that EPA had statutory authority to impose the grant conditions in question, and that it did not act arbitrarily and capriciously in so doing, we affirm. I Before 1972, the FWPCA consisted primarily of a system of state-developed ambient water quality standards. Under this regime, the focus was on the quality of the receiving waters, rather than the nature of the effluent being discharged into them; individual dischargers could be required to reduce their pollution output only if it caused the quality of the receiving body of water to fall below the applicable standard. But this approach proved ineffective in combatting water pollution, due to difficulty in tracing violations of standards to particular polluters, a cumbersome enforcement process, and the “awkwardly shared” federal and state responsibility for promulgating the standards. See generally EPA v. California Water Resources Control Bd., 426 U.S. 200, 202, 203, 96 S.Ct. 2022, 2023, 2024, 48 L.Ed.2d 578 (1976). In the early 1970s, increasing public concern about the state of the nation’s waters led Congress to undertake a major overhaul of the FWPCA. The Federal Water Pollution Control Act Amendments of 1972, Pub.L. No. 92-500, 86 Stat. 816, sharply increased the federal role in regulating water quality, establishing a comprehensive federal program designed “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The 1972 amendments declared specific “national goals” of making the nation’s waters fishable and swimmable by 1983, and totally eliminating the discharge of pollutants into them by 1985. Id. § 1251(a)(l)-(2). Responsibility for the implementation of these ambitious goals was vested in the Environmental Protection Agency (EPA), which had been created in 1970. To assist EPA in this task, the 1972 amendments gave it two principal powers. First, Title III of the amended Act gave EPA the authority to develop and impose uniform federal restrictions on the discharge of pollutants into navigable interstate waters. See id. § 1311(b). These technology-based “effluent limitations” were to be enforced through the National Pollutant Discharge Elimination System (NPDES), which made it illegal to discharge pollutants from any “point source” without a permit issued by EPA or a state whose permit program has been approved by EPA as meeting federal standards. See id. § 1311(a) (prohibiting discharge of pollutants except in compliance with a NPDES permit); id. § 1342(a) (authorizing EPA to issue NPDES permits for discharges that meet the applicable effluent limitations); id. § 1342(b) (authorizing EPA to transfer the authority to issue NPDES permits to a state whose permit program incorporates federal effluent limitations). Second, and more relevant for our purposes here, Title II of the amended Act gave EPA the authority to administer a massive federal spending program designed to assist state and local governments in their efforts to control water pollution. Id. §§ 1281-1299. Section 201 of the Act gives EPA the general authority to make grants to state and local governments for the development and implementation of waste treatment management plans and practices which will achieve the Act’s water quality goals. Id. § 1281(a). Section 201(g)(1) specifically authorizes it to make grants for the construction of publicly-owned wastewater treatment works. Id. § 1281(g)(1). As defined in the statute, a “treatment work” need not be a building or facility, but can be any device, system, or other method for treating, recycling, reclaiming, preventing, or reducing liquid municipal sewage and industrial waste, including storm water runoff. Id. § 1292(2)(A)-(B). Grant funds are appropriated annually by Congress and then allocated by EPA to the states, which are responsible for determining the priority of proposed treatment works in accordance with certain federal guidelines. Local governments seeking grant funds must make application first to the state agency charged with administering the federal grant program; after that agency approves the project and determines its relative priority, it forwards the application to the EPA itself for final approval. See generally 40 C.F.R. Part 35, Subpart I (1987). EPA’s approval is conditioned on a number of criteria, including requirements that the proposed facility be cost-effective according to federal standards, see 33 U.S.C. § 1284(a)(4); that its size and capacity be directly related to the needs it is designed to serve, see id. § 1284(a)(5); and that the applicant adopt a system of user fees, see id. § 1284(b). EPA’s own regulations implementing the construction grant program authorize it to impose any additional conditions necessary to minimize the water pollution caused by the facility’s construction. See 40 C.F.R. § 35.840(a) (1987). II Plaintiff Shanty Town Associates Limited Partnership (Shanty Town) owns a lot in West Ocean City, Maryland, an unincorporated region of approximately 2300 acres in Worcester County, on the coast of Maryland. The Isle of Wight Bay borders the region on the north and east, Sinepuxent Bay and the Assateague Island National Seashore lie to the southeast, and to the west, across Herring Creek, is the mainland. Much of the region consists of environmentally sensitive lands — floodplains, wetlands, and prime agricultural lands— that are protected by federal, state, and local regulations. Approximately 60% of the developed property in West Ocean City lies within the 100-year floodplain. The controversy in this case centers around further development of the floodplains area. Because of its poor soil and high water table, the West Ocean City area has suffered for many years from water pollution caused by failing septic systems. This problem has significantly inhibited development in the area, and the Worcester County Sanitary Commission has on several occasions considered installing a public sewage system to remedy it. In 1983, the Sanitary Commission decided to construct a system that would collect sewage and other wastewater from the West Ocean City area and carry it to the County’s existing treatment plant in the adjacent community of Ocean City. To finance this project, the Sanitary Commission sought a Title II construction grant from EPA. EPA determined that awarding funds for the project would be a “major federal action significantly affecting the quality of the human environment.” It therefore analyzed the environmental effects of the proposed project in an Environmental Impact Statement (EIS), as it was required to do by the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370. The draft EIS concluded that the proposed system would induce considerable development in the floodplains, which would result in increased runoff of pollutants into the adjoining bays. But the draft EIS also determined that the proposed system was the only practicable way to eliminate the acute pollution problems caused by the failing septic systems; it therefore considered various ways to minimize the environmental harm the development induced by the system would cause. The draft EIS concluded that this could best be done by imposing restrictions on the use of the federally-funded system which would make new development in the area less attractive. After receiving and considering public comments, EPA issued the final EIS. The EIS concluded that EPA could not, consistent with applicable federal environmental laws, award funds for the construction of the proposed system unless West Ocean City agreed to abide by certain restrictions on its use. Specifically, EPA insisted that service from the federally-funded system be made available to property within the floodplain only to the extent necessary to serve developments in existence at the time of the grant, with a single exception: undeveloped lots platted for buildings prior to June 1, 1977 would be allowed one equivalent dwelling unit (EDU)’s worth of service for buildings constructed after the date of the grant. No service from the system would be available for any other new developments in the floodplains area, and no service at all from the system would be available within the wetlands area. Property owners would remain free, however, to use other methods of wastewater disposal, including on-site septic systems, to service new developments, subject to state and local regulations. The Sanitary Commission initially objected to the access restrictions. After considering alternative means of financing the project, however, it reluctantly agreed to accept the federal grant with its conditions. To assure fidelity to the access restrictions, EPA insisted that the Sanitary Commission enter into a consent order with the Maryland Department of Health (the Department of Health), the state agency responsible for administering the FWPCA construction grant program in the State of Maryland. In the consent order, the Sanitary Commission agreed to limit use of the federally-funded system in the manner suggested in the draft EIS. The Sanitary Commission also agreed to establish a permit system for obtaining service from the new facility. Under this permit system, initial application would be to the Worcester County Health Officer, with a right of appeal to the Director of the Water Management Administration of the Department of Health, and with further review pursuant to the Maryland Administrative Procedure Act. Shanty Town’s West Ocean City tract is one of 4.5 acres, located in the 100-year floodplain, within the area to which the grant conditions apply. It currently contains a fair-sized shopping center, which is entitled to service from the federally-funded sewage collection system, since it was in existence at the time the EPA grant was made. At present, this property discharges approximately 5,200 gallons of wastewater per day. Shanty Town wishes to develop its West Ocean City property further by constructing a 100-unit hotel and 20,000 square feet of additional retail space, which it estimates will increase its wastewater output to approximately 30,000 gallons per day. In March 1986, Shanty Town applied to the Worcester County Health Office for a permit allowing it to increase its wastewater discharge to 30,000 gallons per day. The application was denied, and Shanty Town appealed to the Director of the Waste Management Administration, who affirmed the denial. Shanty Town then appealed to the Department of Health, which also sustained the denial of additional service. Further administrative appeal is now pending within the state system. Shanty Town then instituted this action in federal district court against EPA and its Regional Administrator (federal defendants), the State Department of Health and two of its officials (state defendants), and the local Sanitary District and Commission (local defendants), seeking declaratory and injunctive relief against the grant conditions and the consent order implementing them. Shanty Town asked the court to set aside the grant conditions on the grounds that EPA lacked statutory authority to impose them or, alternatively, that even if EPA had such authority, its exercise of that authority in this particular case was arbitrary and capricious. Shanty Town also alleged that the grant conditions restricting the use of the federally-funded sewage collection facility violated its substantive due process rights. The defendants moved to dismiss for lack of subject matter jurisdiction or, in the alternative, failure to state a claim. The district court held first that it had subject matter jurisdiction under the general federal question statute, 28 U.S.C. § 1331, because the action was one “arising under” the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. Treating the 12(b)(6) motion as a motion for summary judgment, the district court first dismissed the state and local defendants, then held that the federal defendants were entitled to summary judgment on two alternative grounds. First, the court held that Shanty Town lacked standing to challenge the grant conditions. Second, the district court held that even if Shanty Town did have standing, its arguments failed on the merits. Shanty Town then took this appeal, which challenges the grant conditions as beyond EPA’s authority or arbitrary and capricious, but abandons the substantive due process claim. Because the district court properly dismissed the state and local defendants, see note 8 supra, we consider only the claims against the federal defendants. Ill Our jurisdiction depends on the threshold question of whether Shanty Town, who was not the actual recipient of the West Ocean City grant, has standing to challenge the federal conditions imposed upon the grant recipients. The district court concluded that it did not. We disagree. Standing to seek judicial review of agency action requires that a plaintiff (1) have suffered an “injury in fact” as a result of the challenged action, and (2) assert an interest that is “arguably within the zone of interests” that Congress intended the relevant statute to protect or regulate. See Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 152-54, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970). The “injury in fact” requirement, which is necessary to insure that there is a “case or controversy” within the meaning of article III, requires a plaintiff to show not only that he has personally suffered a distinct and palpable injury, but also that there is a “fairly traceable” causal connection between that injury and the challenged action. See Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2629-30, 57 L.Ed.2d 595 (1978). In this case, there is little doubt that the interest Shanty Town asserts — the right to hook up to a federally-funded wastewater treatment works — is arguably within the zone of interests that Congress intended EPA to take into account in exercising its grantmaking authority under Title II of the FWPCA. Nor is there any doubt that the injury alleged by Shanty Town — revenues lost as a result of its inability to obtain sewer service for its proposed development — is sufficiently distinct and palpable to satisfy article III. See Association of Data Processing Service Orgs. v. Camp, 397 U.S. at 152, 90 S.Ct. at 829. The district court held, however, that Shanty Town had not shown the requisite causal connection between this alleged injury and EPA’s imposition of the challenged conditions on the West Ocean City grant. The court reasoned that it was the local Sanitary Commission, rather than EPA, which had actually denied Shanty Town the requested sewer service, and that there was no evidence that the Commission would grant Shanty Town that service even if the grant conditions were struck down. In the district court’s view, only the local Sanitary Commission itself, as the actual recipient of the EPA grant, had standing to challenge the conditions imposed upon it. We disagree. It is true that it was the local Sanitary Commission, as the entity responsible for the day-to-day operation of the federally-funded system, that actually imposed the restrictions on service to Shanty Town’s property. But we think it plain, from the record before us, that the Sanitary Commission would not have imposed those restrictions had it not been for EPA’s insistence upon them. It is undisputed that the Sanitary Commission initially opposed the access restrictions, and that it agreed to adopt them only when it became apparent that it could not finance the system without assistance from EPA. Shanty Town presented affidavits from several members of the Sanitary Commission indicating that it would have approved Shanty Town’s request for additional service had it not been for the challenged grant conditions. On this record, we conclude that Shanty Town has established a sufficient causal relationship between its alleged injury and EPA’s imposition of the challenged grant conditions to enable it to maintain this action. See United States v. SCRAP, 412 U.S. 669, 686-90, 93 S.Ct. 2405, 2415-17, 37 L.Ed.2d 254 (1973) (environmental groups had standing to challenge ICC’s approval of freight rate increase because they alleged it would harm their enjoyment of the environment by discouraging the use of recycled goods). IV We therefore turn to the merits of Shanty Town’s appeal. EPA’s actions with.respect to the West Ocean City grant are subject to judicial review in accordance with the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq. Under the APA, a reviewing court may set aside agency action that it finds to be in excess of the agency’s statutory jurisdiction or authority; without observance of procedures required by law; or “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2); see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-17, 91 S.Ct. 814, 822-24, 28 L.Ed.2d 136 (1971). Our review is therefore limited to three possible questions — the first statutory, the second procedural, and the third substantive. See Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1024 (D.C.Cir.1978). In this case, Shanty Town has not argued that EPA failed to follow proper procedures in imposing these grant conditions. The contentions are that EPA lacks authority under the FWPCA to limit access to sewage facilities, and, alternatively, that even if the statute does give EPA such authority, the agency’s exercise of that authority in this particular case was arbitrary and capricious. We take these arguments in turn. A As to whether EPA has statutory authority to impose these grant conditions, EPA concedes that the FWPCA does not give it authority to regulate sewer service directly. But EPA argues that Title II of the FWPCA, which gives it authority to make grants to state and local governments for the construction of publicly-owned waste-water treatment facilities, also gives it the incidental authority to restrict the use of those facilities, where necessary to further the Act’s water quality goals. EPA’s argument that these particular access restrictions are necessary to further the Act’s water quality goals is based upon two related factual findings. First, that the availability of better sewer service in the West Ocean City area will lead to an explosion of development, which will lead in turn to increased “nonpoint source” pollution. Second, that this increase in nonpoint source pollution could have a detrimental effect on the water quality of the adjoining bays, perhaps even to the point of offsetting any benefits that might be achieved by correcting the existing septic tank problem. In EPA’s view, then, the challenged use restrictions, which would minimize the non-point source pollution caused by the new facility by limiting the amount of new development it can support, are necessary to insure that the West Ocean City grant is consistent with the FWPCA’s water quality goals. Shanty Town does not question EPA’s general authority to attach conditions to Title II grant funds. Instead, it challenges these particular grant conditions on the ground that they disturb the delicate balance of federal and state power created by Congress in the FWPCA and two other federal environmental statutes, the Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451 et seq., and the National Flood Insurance Act (NFIA), 42 U.S.C. §§ 4001 et seq. The argument, in essence, is that the grant conditions conflict with Congress’ deliberate decision, in those statutes, to allocate control over nonpoint source pollution and land use in the coastal floodplains area to the states. (1) In considering Shanty Town’s statutory argument, we start with the principle that the construction placed on a statute by the agency charged with administering it is entitled to considerable deference from the courts, and will ordinarily be upheld if it has a “reasonable basis in law.” NLRB v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 860-61, 88 L.Ed. 1170 (1944); Chevron, USA, Inc. v. NRDC, 467 U.S. 837, 844-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984). So long as the agency’s interpretation represents a reasonable accommodation of conflicting policies that were committed to its care by the statute, we are not at liberty to reject it merely because we might have reached a different conclusion if confronted with the issue in the first instance. See Chevron, 467 U.S. at 843-44 & n. 11, 104 S.Ct. at 2782-83 & n. 11; United States Army Eng. Center v. FLRA, 762 F.2d 409, 414 (4th Cir.1985). Congress charged EPA, in the FWPCA, with developing special expertise in the control of water pollution, and with using that expertise to carry out the FWPCA’s goal of improving water quality. As a result, EPA is entitled to special deference when it applies the general provisions of the FWPCA to the complexities of particular water pollution control problems. See Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983). On the other hand, we are not obliged to endorse every interpretation of the FWPCA advanced by EPA. Agency expertise notwithstanding, the courts remain the final authorities on issues of statutory construction, FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1042-43, 13 L.Ed.2d 904 (1965), and must not “stand aside and rubberstamp ... administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute,” NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965); see American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1965) (“The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.”). Our task in review is therefore to determine whether, from the structure of the FWPCA and its legislative history, it is clear that EPA’s interpretation of the statute is not one that Congress would have sanctioned. See Chevron, 467 U.S. at 845, 104 S.Ct. at 2783 (quoting United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560-61, 6 L.Ed.2d 908 (1961)). With these principles in mind, we turn to an analysis of the arguments raised by Shanty Town. (2) Shanty Town contends first that EPA’s imposition of grant conditions designed to protect water quality from non-point source pollution conflicts with the FWPCA’s allocation of control over non-point source pollution to the states. In support of this argument, Shanty Town notes that while the FWPCA provides for direct federal regulation of point source pollution through the National Pollutant Discharge Permit system, it contains no such provision regarding nonpoint source pollution. In addition, the Act specifically states that [i]t is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use ... of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter. 33 U.S.C. § 1251(b). Shanty Town argues that these provisions evince a congressional intent to prevent EPA from taking any action designed to reduce nonpoint source pollution. We disagree. It is true that the FWCPA contains no mechanism for direct federal regulation of nonpoint source pollution. But the Act’s legislative history makes clear that this omission was due not to Congress’ concern for state autonomy, but simply to its recognition that the control of nonpoint source pollution was so dependent on such site-specific factors as topography, soil structure, rainfall, vegetation, and land use that its uniform federal regulation was virtually impossible. See 117 Cong. Rec. 38825 (1971) (Sen. Muskie); S.Rep. No. 414, 92d Cong., 1st Sess. 39-40 (1971), U.S.Code Cong. & Admin.News 1972, p. 3668 reprinted in 2 Senate Comm. on Public Works, 93d Cong., 1st Sess. A Legislative History of the Water Pollution Control Act Amendment of 1972, at 1457-58 (Comm. Print 1973); Environmental Law Instit., Federal Environmental Law 769-70 (E. Dolgin & T. Guilbert eds. 1974); see also United States v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir.1979) (“It is clear from the legislative history [that] Congress would have regulated so-called nonpoint sources if a workable method could have been derived.”). Because of these practical difficulties, Congress was forced to shift primary control for the control of nonpoint source pollution to the states. But it did so by a device which allowed the federal government to retain substantial control over the regulation of nonpoint source pollution — the mandatory planning process set forth in § 208 of the FWCPA. Section 208(a) requires the governor of each state to identify, in accordance with federal guidelines, all areas within his state that have substantial water quality control problems, and to designate a regional planning agency to formulate and operate a comprehensive waste treatment management plan for each such area. 33 U.S.C. § 1288(a)(2). Section 208(b)(2) requires each plan to contain, among other things, procedures for the identification and control of the area’s major sources of nonpoint source pollution — including runoff from agriculture, silviculture, mining, construction, and saltwater intrusion. Id. § 1288(b)(2). To assist the states in carrying out this task, § 304(f) directs EPA to issue guidelines for identifying and evaluating the nature and extent of nonpoint sources of pollutants, and processes, procedures, and methods designed to control pollution resulting therefrom. Id. § 1314(f). Each plan must be submitted to EPA for approval. Id. § 1288(b)(3). The Act provides no direct mechanism by which EPA can force the states to adopt adequate non-point source pollution control programs. Instead, Congress anticipated that EPA would use the threat and promise of federal financial assistance to accomplish this task. Section 208(f) authorizes EPA to make grants to the states to help defray the costs of developing and administering the mandatory § 208 plans, id. § 1288(f), and § 201(g)(1) authorizes EPA to make grants for the construction of specific facilities — like storm sewer systems — that § 208 plans identify as potential methods of controlling nonpoint source pollution, id. § 1281(g). By threatening to withhold these grant funds, EPA is able to influence the states to adopt nonpoint source pollution control programs that will accomplish the Act’s water quality goals. Cf. Natural Resources Defense Council, Inc. v. Costle, 564 F.2d 573 (D.C.Cir.1977) (approving withholding of grant funds as means of assuring compliance with the § 208 process). In our view, the structure and legislative history of the FWPCA thus provide no support for Shanty Town’s contention that Congress intended EPA to play no role in controlling nonpoint source pollution. To the contrary, the FWPCA sets up a program of “cooperative federalism” in which the state and federal governments work closely together to control nonpoint source pollution. The basic goals of this program are set by Congress — to restore and maintain the chemical, physical, and biological integrity of the nation’s waters and make them fishable and swimmable again. The states are, for practical reasons discussed above, charged with much of the burden of developing and carrying out measures which will achieve these goals. But in so doing, they serve merely as agents for the implementation of federal water pollution control policy; it is the federal government, not the individual states, that shapes and directs the regulatory policy. Nor do we find anything in the language or legislative history of the FWPCA that indicates a congressional intent specifically to preclude EPA from imposing conditions on Title II construction grants that are designed to reduce the amount of nonpoint source pollution generated, either directly or indirectly, by the facilities those grants fund. The stated purpose of the grant program is to encourage the construction of wastewater treatment facilities that will carry out the goals of the Act, which are, as indicated, to protect water quality from both point and nonpoint source pollution. To hold that EPA may not impose grant conditions designed to minimize the non-point source pollution these facilities cause, so that their beneficial effect on water quality may be maximized, would be to confine EPA’s discretion in administering the grant program in a way we do not think Congress intended. EPA’s mandate under the grant program is, after all, to provide funding for treatment works that will improve the quality of the nation’s waters. We do not think it unreasonable for EPA to interpret this broad grant of authority as permitting it to impose grant conditions that directly further this goal by minimizing the amount of nonpoint source pollution caused by a federally-funded sewage treatment facility. See Consolidation Coal Co. v. Costle, 604 F.2d 239, 243 (4th Cir.1979) (FWCPA is to be given the broadest possible reading consistent with the commerce clause, and all ambiguities as to EPA’s authority under the Act are to be resolved in its favor), rev’d on other grounds, 449 U.S. 64, 101 S.Ct. 295, 66 L.Ed.2d 163 (1980). We therefore conclude that EPA did not exceed its authority under the FWPCA in attaching conditions to the West Ocean City grant that were designed to reduce nonpoint source pollution. (3) Shanty Town also contends that EPA’s imposition of grant conditions that restrict access to federally-funded sewage facilities located in the coastal floodplains region conflicts with the balance of federal-state power created by Congress in the two federal statutes that deal specifically with the protection of that region, the Coastal Zone Management Act (CZMA) and the National Flood Insurance Act (NFIA). These statutes, Shanty Town contends, allocate to the states exclusive control over the use of land in the coastal floodplains. Before considering this argument, we think it important to note that our first obligation, when presented with a possible conflict between two federal statutes, is always to attempt to harmonize them. See Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974) (“The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.”). The CZMA, 16 U.S.C. §§ 1451 et seq., was designed to encourage states to develop land-use planning programs that will preserve, protect, and restore the environment of their coastal zones. See 16 U.S.C. § 1452. To that end, the Act gives the National Oceanic and Atmospheric Administration (NO A A) authority to make grants to the states for the development of statewide coastal zone management plans which meet certain federal standards. Id. §§ 1454-55. Once a state has an approved management plan in place, the Act requires all federal agencies that conduct or support activities directly affecting the coastal zone to see that those activities are carried out in a way which is, to the maximum extent practicable, consistent with that state plan. Id. § 1456(c)(1). The CZMA’s legislative history makes clear that Congress intended ultimate responsibility for the regulation of land use in the coastal zones to remain with the states. Had EPA used its power to attach conditions to Title II grants directly to regulate land use in the West Ocean City area — as, for example by requiring West Ocean City to adopt an ordinance banning all development in the coastal floodplain— there might be an argument that its action was inconsistent with the CZMA. But these grant conditions do not actually forbid development in the West Ocean City area; they simply forbid the use of federal funds to encourage such development. West Ocean City remains free to authorize development of the coastal zone, and to provide such development with service from any sewage facility not constructed with federal funds. For this reason, we conclude that these grant conditions are not inconsistent with the CZMA’s general allocation of control over land use in the coastal zone to the states. Nor can EPA’s imposition of these grant conditions be said to violate the CZMA’s consistency requirement. Indeed, they have been approved by the appropriate state officials as being entirely consistent with the Maryland Coastal Zone Management Plan. See May 5, 1982 Letter from Sarah Taylor (Director, Coastal Resources Div., Tidewater Admin., Md. Dept, of Natural Resources), to John C. Milnor (Chief, EPA Div. of Grant Project Management) (May 5, 1982) (“The [federally] funded grant system is consistent with the Coastal Zone Management Program and preferable from this Program’s standpoint ... [to] [t]he locally funded system [which] ignores restrictions on growth and sewer service within the 100-year floodplain.”). J.A. 206-07. Finally, nothing in the CZMA indicates that Congress intended it to prevent EPA from taking action designed to protect water quality in the coastal zone under authority granted it by the FWPCA. To the contrary, § 307(e) of the CZMA expressly provides that [n]othing in this title shall be construed ... to diminish ... Federal ... jurisdiction, responsibility, or rights in the field of planning, development, or control of water resources, submerged lands, or navigable waters, ... [or] as superseding, modifying, or repealing existing laws applicable to the various Federal agencies. Id. § 1456(e). Section 307(f) of the Act further provides that: nothing in this chapter shall in any way affect any requirement (1) established by the Federal Water Pollution Control Act, as amended ... or (2) established by the Federal Government or by any state or local government pursuant to [that Act]. Id. § 1456(f). These provisions make clear that the CZMA was intended to complement, rather than preempt, the protection afforded the coastal zone by the FWPCA and other federal environmental statutes. We conclude that the CZMA provides no basis for invalidating the grant conditions in this case. Similarly, we find no conflict between these grant conditions and the NFIA, 42 U.S.C. §§ 4001 et seq. The NFIA was designed to minimize flood damage by controlling development in the coastal floodplains area. 42 U.S.C. § 4001(e). It is true that Congress chose not to regulate floodplain development comprehensively at the federal level, but instead to provide incentives for local governments to adopt such regulations themselves, by denying various forms of federal financial assistance — including federal flood insurance — to communities that failed to adopt development restrictions meeting federal standards. See id. §§ 4002, 4022. There is, however, nothing in the language or legislative history of the NFIA to indicate that Congress intended it to prevent EPA from taking action designed to protect water quality in the floodplains region, pursuant to authority granted it under the FWPCA. Accordingly, we conclude that the NFIA provides no basis for invalidating these grant conditions. B We turn, finally, to a consideration of whether EPA’s decision to impose the challenged grant conditions was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In making this determination, the court must engage in a “substantial inquiry” into the agency’s decisionmaking process, to determine “whether [its] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971). The court may not, however, substitute its own judgment for that of the agency which Congress entrusted with the responsibility of weighing these competing factors. See id. Shanty Town has cited only one case holding that EPA abused its discretion in imposing conditions on a grant under Title II of the FWPCA. Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir.1983). In that case, as here, EPA had imposed a condition that the grant recipient agree to limit the access of new development to the federally-funded sewage facility. As the district court noted, however, Cape May Greene is distinguishable on several important grounds. First, the grant conditions imposed in Cape May Greene were flatly inconsistent with the state’s interpretation of its own federally-approved Coastal Zone Management Plan. The conditions required the municipality receiving the grant not only to deny new developments in the floodplain access to the federally-funded sewer system, but also to forbid those developments to utilize any other means of wastewater disposal, public or private, which made development of the plaintiff’s floodplain property virtually impossible. But the state agency responsible for administering the state’s Coastal Zone Management Plan had already issued a permit authorizing the plaintiff to build on his floodplain property. The EPA grant conditions therefore clashed directly with the state’s administration of its federally-approved Coastal Zone Management Plan. The Third Circuit specifically grounded its finding that EPA had acted arbitrarily and capriciously on its failure to give sufficient weight to the CZMA’s admonition that federal actions in the coastal zone should, to the maximum extent possible, be consistent with the state’s management plan. Id. at 190-91. Second, and more critically, the conditions EPA imposed in Cape May Greene were not directly related to the goals of the FWPCA. The use restrictions imposed there were not designed to protect water quality from nonpoint source pollution, but to reduce flooding, which is not a concern of the FWPCA. In finding EPA’s action to be arbitrary and capricious, the Third Circuit placed special emphasis on the fact that flood control was not a factor it was authorized to consider by the FWPCA. See id. at 186-87, 190 & n. 15. In this case, by contrast, the state agency that administers Maryland’s Coastal Zone Management Plan has specifically approved these grant conditions as consistent with the goals of that plan. Moreover, the conditions are directly related to the FWPCA’s goal of improving water quality, for EPA has made an express factual finding — a finding which is entitled to considerable deference — that they were necessary to prevent construction of the West Ocean City facility from leading to an overall decline in the area’s water quality. For these reasons, we conclude that EPA did not act arbitrarily and capriciously in deciding to impose these conditions upon the West Ocean City grant. V For the reasons set forth above, the judgment of the district court granting summary judgment for . the defendants is affirmed. AFFIRMED. . The Act was first passed in 1948 and has been amended since numerous times. See annotation following 33 U.S.C. § 1251. . The Act defines a “point source” as: any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, [or] rolling stock ... from which pollutants are or may be discharged. 33 U.S.C. § 1362(14). This definition excludes unchanneled and uncollected surface runoff, which is referred to as "nonpoint source” pollution. See Appalachian Power Co. v. EPA, 545 F.2d 1351, 1373 (4th Cir.1976). . The "100-year floodplain” is the portion of the low-lying land adjoining inland and coastal waters that is, on average, likely to be flooded every 100 years (i.e., has a one percent chance of flooding in any given year). . The three-member Sanitary Commission governs the Worcester County Sanitary District, a body corporate formed by the Worcester County Commissioners for the purpose of providing the county’s residents with water and sewer service. . Section 102 of the NEPA requires any federal agency considering a “major Federal action significantly affecting the quality of the human environment" to prepare an Environmental Impact Statement (EIS) that identifies the environmental consequences of the proposed action and recommends ways to minimize those which are adverse. Id. § 4332(2)(C). .An EDU is approximately 280 gallons of wastewater per day, which is the amount normally produced by a single-family residential dwelling. . Though Shanty Town’s complaint did not identify the source of its cause of action, the district court properly treated the action as one brought under § 10 of the APA, 5 U.S.C. § 702, because it sought judicial review of an action by a federal administrative agency. While § 10 does not itself confer federal subject matter jurisdiction over such actions, jurisdiction exists under the general federal question statute. Califano v. Sanders, 430 U.S. 99, 104-07, 97 S.Ct. 980, 983-85, 51 L.Ed.2d 192 (1977). . The district court dismissed the claims against these defendants on the basis that they had been joined "solely for the purpose of obtaining complete relief in the event the EPA conditional grant was struck down” and that there were "no independent claims against them.” This basis for dismissal is somewhat obscure and may in some respects be questionable; but even if in part erroneous, the error is harmless. The State Department of Health could, and should, properly have been dismissed as immune to suit under the eleventh amendment. This ground did not, however, provide an alternative basis for dismissal of the individual state defendants who were sued only for prospective relief, nor the local defendants. As to these jurisdictionally exposed defendants, it is arguable that — contrary to the district court’s view — viable federal claims were stated for action under color of state law which in concert with that of the federal defendants deprived plaintiff of federally secured rights. Without deciding whether such claims might properly be considered to have been pleaded, it suffices to note that even if so, they would necessarily have failed in the end on the merits, for the same reasons that we reject the claim against the federal defendants: that no federally secured rights were violated by imposition of the challenged restriction. .EPA also contends that it was authorized to impose these grant conditions by Executive Order 11,988, which requires all federal agencies to avoid direct or indirect support of growth in the coastal floodplain, where there is a practicable alternative. See E.O. 11,988, § 2(a), 42 Fed. Reg. 26,951 (1977). We do not find it necessary to address this argument, because we find that the FWCPA itself gave EPA the authority to impose these grant conditions. . Nonpoint source pollution is runoff from agriculture, silviculture, mining, construction, roads, urban development, and other diffuse sources. . The FWPCA itself contains no express provision authorizing EPA to attach conditions to Title II grants. But EPA’s implied authority to do so, where necessary to carry out the goals of the Act, cannot seriously be questioned. See City of Columbia v. Costle, 710 F.2d 1009 (4th Cir.1983) (assuming, without discussion, that EPA may impose conditions on Title II grant funds); see also Consolidation Coal Co. v. Costle, 604 F.2d 239, 243 (4th Cir.1979) (FWPCA is to be given the broadest possible reading consistent with the commerce clause, and all ambiguities as to the Administrator’s powers under the Act are to be resolved in his favor), rev'd on other grounds, 449 U.S. 64, 101 S.Ct. 295, 66 L.Ed.2d 268 (1980). . We note, in this connection, that this case requires us not only to construe the FWPCA itself, but also to consider an arguable conflict between that Act and two statutes that EPA does not administer, the CZMA and the NFIA. While we of course owe considerable deference to EPA's interpretation of the FWPCA, we are not required to defer to its interpretation of the CZMA and the NFIA, or to its resolution of any conflict between the FWPCA and those statutes. See New Jersey Air National Guard v. FLRA, 677 F.2d 276, 281-82 & n. 6 (3d Cir.1982); see also Tsosie v. Califano, 651 F.2d 719, 722 (10th Cir.1981) (agency’s interpretation of another agency’s statutes and regulations not entitled to deference). . Our conclusion is bolstered by § 511(c)(1) of the FWPCA, which requires EPA to comply with the provisions of NEPA in administering the construction grant program. 33 U.S.C. § 1371(c)(1). Under NEPA, federal agencies must use "all practicable means and measures" to administer federal programs in a way that does not harm the environment. See 42 U.S.C. § 4331. . This deliberate Congressional decision is well described in the Senate Report: The Committee has adopted the States as the focal point for developing comprehensive plans and implementing management programs for the coastal zone. It is believed that the States do have the resources, administrative machinery, enforcement powers, and constitutional authority on which to build a sound coastal zone management program. S.Rep. No. 92-753, 92d Cong. 2d Sess. at 5-6 (1972), U.S.Code Cong. & Admin.News 1972, pp. 4776, 4780.

Friends of the Earth v. United States Navy

LEAVY, Circuit Judge: The appellants, Friends of the Earth and other environmental organizations (FOE), appeal the denial of their motion to preliminarily and permanently enjoin construction of the United States Navy’s proposed homeport in Everett, Washington on Puget Sound. FOE alleges that by commencing construction prior to termination of review proceedings concerning a Shoreline Management Act permit, the Navy is in violation of the National Defense Authorization Act, the Administrative Procedure Act, the Federal Water Pollution Control Act, and the Washington Shoreline Management Act. The district court denied FOE’s motion, finding that no irreparable harm would occur until June 15, 1988 and that FOE lacked standing. We reverse. FACTS AND PROCEDURAL HISTORY The Navy plans to build a $272 million permanent “Carrier Battle Group Home-port” at Everett, Washington as part of the Navy’s comprehensive defense strategy. The homeport will provide berthing and base facilities for the aircraft carrier USS Nimitz and numerous support ships and service vessels. Establishment of the homeport will entail extensive demolition and construction over several hundred acres. All buildings, piers, and wharves currently at the site will be demolished. New buildings, utilities, and parking areas will be constructed. The existing “mole” will be rebuilt and a 1600 foot breakwater will be constructed. Extensive dredging of the harbor to accommodate the Navy vessels will occur. The issue of concern to the plaintiffs is the Navy’s proposal to dredge approximately 3.4 million cubic yards of sediment from the East Waterway in Everett Harbor and dispose of these spoils in Port Gardner Bay at depths of 310 to 430 feet, using a dredge spoil disposal technique called Confined Aquatic Disposal (CAD). Approximately one-third of the dredge spoils are contaminated with heavy metals and organic compounds. The CAD disposal system involves in-water disposal of contaminated dredge spoils followed by disposal of clean sediment which, theoretically, will cap and isolate the contaminated material from the marine environment. The CAD method is experimental at these depths and the harm to the marine environment which would occur should the contaminated spoils not be contained would be substantial. The United States Fish and Wildlife Service (FWS), in its report Impacts of the Proposed Navy Homeporting Project, Everett, Washington, stated: “[CAD] has only been attempted twice at depths approaching those of the proposed disposal site, and in those cases, the effort was considered a failure, apparently because of an inability to accurately place the material at the site.” The FWS opposes the dredging project as currently proposed. The United States National Marine Fisheries Service (NMFS), in a letter to the Army Corps of Engineers (Corps), stated: “The NMFS remains opposed to the Navy’s proposal to dispose of nearly one million cubic yards of contaminated sediments by redepositing them in Puget Sound.... because such disposal would have unacceptable adverse impacts on aquatic and fishery resources.” The FWS and NMFS support use of an upland site for disposal of the dredge spoils because the technology concerning how to contain the spoils is far better known and the site could be better monitored. Two sections of the Federal Water Pollution Control Act (Clean Water Act or CWA) require the Navy to comply with all state and local requirements concerning the discharge of dredged and fill materials and the control of water pollution. 33 U.S.C. §§ 1344(t), 1323 (1986). Section 2207 of the National Defense Authorization Act of 1987 (NDAA) prohibits the Navy from obligating or spending funds for construction of the Everett homeport until “all Federal, state, and local permits required for the dredging activities to be carried out with respect to homeporting at Everett, Washington, have been issued.” National Defense Authorization Act for Fiscal Year 1987, Pub.L. No. 99-661, § 2207 (1986) (NDAA for 1987). The Navy has received some required permits and certifications. Under the Rivers and Harbors Act of 1899, 33 U.S.C. § 407 (1986), and section 404 of the Clean Water Act, 33 U.S.C. § 1344 (1986), the Navy must obtain from the Army Corps of Engineers a “404 permit” before it may discharge dredged or fill material into the navigable waters of the United States. The Navy obtained this permit on September 24, 1987. Under section 401 of the Clean Water Act, 33 U.S.C. § 1341 (1986), the state of Washington must certify that the activities authorized by the 404 permit will not adversely affect water quality (Water Quality Certification or 401 certification). The state issued the certification on March 2, 1987. The permit about which the parties are in dispute comes under the state of Washington’s Shoreline Management Act (SMA) and would be obtained from the city of Everett. Wash.Rev.Code §§ 90.58.010-.930 (West Supp.1987). The Navy initially refused to apply for this permit, contending it had sovereign immunity. However, eventually the state and the Navy entered into a Memorandum of Agreement (MOA). The Navy, without waiving any sovereign immunity, agreed to apply to the city of Everett for a SMA permit, and also agreed “to comply with all conditions of the permit related to water quality and aquatic life in Puget Sound and Gardner Bay and further ... to comply with all other reasonable and appropriate permit conditions.” The MOA stated that any conditions would be included in the 404 permit. The state conditioned its issuance of the 401 certification on the Navy submitting the homeport project to the SMA permit process. On March 2, 1987, the Navy applied to the city of Everett for a “conditional use shoreline substantial development permit” under the SMA for construction of the homeport in Everett’s shoreline area. The application stated that the permit was requested for dredging and disposal of dredge spoils. The city approved the permit, subject to certain conditions, on June 10, 1987. The permit allows among other things, dredging and disposal of dredge spoils. The Washington Department of Ecology (WDOE) reviewed the permit, as required by the SMA, Wash.Rev.Code § 90.58.140(12), and approved it, with additional conditions, on July 8, 1987. The permit contains the following language: Construction pursuant to this permit will not begin or is not authorized ... until all review proceedings initiated within thirty days from the date of [this permit] have terminated. This restriction is required by the SMA. Wash.Rev.Code § 90.58.140(5). On July 30, 1987, the plaintiffs filed a request for review of the SMA permit with the state Shorelines Hearings Board (Board), in accordance with the review procedures established in the SMA. Wash. Rev.Code § 90.58.180. At the time of oral argument in this case, the Board had held two weeks of hearings on the permit, and more hearings were scheduled. In August and September 1987, while the plaintiffs’ appeal to the Board was pending, the Navy solicited and accepted bids for site preparation and shore utility construction. On September 29, 1987, the Navy awarded a $26 million contract for this work. The contract calls for demolition, excavation, and subgrading of the entire home-port site, followed by construction of the homeport’s infrastructure, including utilities, roads, and parking lots. The contract also involves some in-water work, including demolition of all existing waterfront structures, such as wharves, piers, and pilings; construction of riprap; and removal of debris. The Navy maintains this contract does not involve dredging; dredging will be the subject of a future contract under the same SMA permit. In contrast, FOE claims, and supports by the affidavit of an expert, that the contract does involve dredging as well as significant in-water demolition and filling, all of which may adversely affect water quality. The contract specifies that no in-water work will commence until after June 15, 1988. However, the Navy concedes that because the definition of “in-water” in the contract differs from the state’s definition, work is authorized prior to June 15 which, in high tides and extreme high tides, would be in the water. FOE filed its complaint in district court and moved for a preliminary and permanent injunction barring the Navy from obligating or expending any funds, and from commencing any construction of the home-port, until all shoreline permit review proceedings have terminated. The district court denied the motion for a preliminary injunction on two grounds. First, the court found that FOE failed to show that irreparable harm would occur if the injunction did not issue. The court stated: “No activity that will significantly disturb that [contaminated bottom] sediment is planned until at least June 15, 1988, several months after the scheduled date for the hearings before the Shoreline Hearings Board.” Second, the court found that FOE lacked standing. The court stated that “because there is no imminent environmental harm, the plaintiffs lack standing to employ the Administrative Procedures Act ... to challenge the Navy’s alleged violations of the NDAA.” The court noted that the NDAA does encompass environmental interests. However, it found that even if the Navy is in violation of the NDAA, the plaintiffs have no specialized injury separate from the injury suffered by the general public. FOE appeals the district court’s denial of its injunction motion. STANDARD OF REVIEW This court reviews a denial of a preliminary injunction motion to determine whether the district court abused its discretion or based its decision on an erroneous legal standard or clearly erroneous findings of fact. Sierra Club v. Marsh, 816 F.2d 1376, 1381-82 (9th Cir.1987). This court may decide the merits of a case on appeal from the denial of injunctive relief if the plaintiff requested both preliminary and permanent relief, the record was fully developed before the district court, and the district court’s denial rested primarily on interpretations of law. Id. at 1382. FOE requested both preliminary and permanent injunctive relief from the district court. The Navy joined FOE in requesting the district court to rule on the merits and both sides fully briefed the merits. The district court’s denial of injunctive relief rested primarily on questions of law. In reversing the district court we also, of necessity, reach the merits of this action. DISCUSSION A. Standing To demonstrate standing, Article III of the United States Constitution requires the plaintiffs to show that they or their members have personally suffered an actual or threatened injury due to the defendant’s allegedly illegal conduct, that the injury can fairly be traced to the challenged conduct, and that the injury is likely to be redressed by a favorable decision. Fair v. United States EPA, 795 F.2d 851, 853 (9th Cir.1986) (citations omitted). See Sierra Club v. Morton, 405 U.S. 727, 734-40, 92 S.Ct. 1361, 1365-69, 31 L.Ed.2d 636 (1972). The plaintiffs satisfy the standing requirements of Article III. Section 2207 of the NDAA prohibits the expenditure of funds for any construction of the Everett homeport until “all Federal, state, and local permits required for the dredging activities ... have been issued.” NDAA for 1987, § 2207. Congress’ purpose in enacting Section 2207 was to ensure that the environmental consequences of dredging are fully considered before funds for construction of the homeport are obligated. Conf. Rep. to NDAA for 1987. The plaintiffs alleged that the Navy’s commencement of homeport construction prior to completion of the SMA permit review process threatens harm to the environment of Puget Sound because the permit is “required” and has not been “issued.” Therefore, environmental concerns about dredging have not been fully considered. This court has long recognized that failure to follow procedures designed to ensure that the environmental consequences of a project are adequately evaluated is a sufficient injury in fact to support standing. City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir.1975). The plaintiffs also alleged, as they must under Sierra Club v. Morton, the particular injury their members incur by the Navy’s action. 405 U.S. at 734-35 & n. 8, 92 S.Ct. at 1365-66 & n. 8. The complaint alleges that the plaintiffs’ members live in and around Everett and use the shoreline and waters of Everett Harbor, Port Gardner Bay, and Puget Sound for environmental, scientific, aesthetic, economic, and recreational activities. It further alleges these interests would be affected directly and adversely by construction of the home-port without adequate environmental review and protection. Such threatened harm to the environment is sufficient to amount to an “injury in fact” for purposes of standing. Id. The plaintiffs have demonstrated their members meet the injury in fact standard stated in City of Davis: The procedural injury implicit in agency failure to prepare an EIS — the creation of a risk that serious environmental impacts will be overlooked — is itself a sufficient “injury in fact” to support standing, provided this injury is alleged by a plaintiff having a sufficient geographical nexus to the site of the challenged project that he may be expected to suffer whatever environmental consequences the project may have. This is a broad test, but ... an appropriate test. 521 F.2d at 671. See also Oregon Environmental Council v. Kunzman, 817 F.2d 484, 491 (9th Cir.1987). Thus, the plaintiffs have demonstrated that their members will suffer injury in fact by the Navy’s alleged failure to follow environmental procedures. This injury is fairly traceable to the Navy’s action in commencing construction prior to completion of the SMA review process. Finally, the plaintiffs’ injury would be redressed by a favorable decision enjoining the Navy from construction prior to completion of the permit review process. The plaintiffs must also satisfy the statutory requirements for standing under the APA, by demonstrating that their alleged injury is within the zone of interests protected by the statute allegedly violated. Fair, 795 F.2d at 854. The Supreme Court recently explained that the zone of interest test denies judicial review only if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. The test is not meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff. Clarke v. Securities Indus. Ass’n, — U.S. —, 107 S.Ct. 750, 757, 93 L.Ed.2d 757 (1987). The plaintiffs’ alleged injuries fall within the NDAA’s zone of interest for purposes of standing under the APA. In enacting section 2207 of the NDAA, Congress stated: [T]o ensure that environmental concerns are fully addressed prior to the initiation of construction at the base, the conferees have prohibited the obligation and expenditure of fiscal year 1987 military construction funds for the Everett home-port until all Federal, state and local permits for dredging have been issued. Conf.Rep. to NDAA for 1987. Congress included this same restriction in the National Defense Authorization Act for Fiscal Years 1988 and 1989. Pub.L. No. 100-180, § 2322 (1987). The language of section 2207 and its legislative history demonstrate that Congress intended that environmental impacts of the homeport be fully evaluated prior to construction. The injuries alleged by the plaintiffs, environmental organizations with a demonstrated interest in the same issues about which Congress is concerned, fall within the NDAA’s zone of interest. The Navy contends that FOE lacks standing because, it claims, the only environmental concerns within the zone of interest protected by the NDAA are those associated with dredging activities. The Navy claims the construction contract does not involve dredging, and therefore awarding of the contract is not causally related to the plaintiffs’ alleged injury. The parties disagree about whether the contract involves dredging. Moreover, the Navy’s argument glosses over the explicit language in section 2207 which prohibits expenditure of funds for any construction until all permits required for dredging activities have been issued. Congress linked all construction to ensuring the environmental effects of dredging are considered, and repeated this linkage in the NDAA for fiscal years 1988 and 1989. Attenuation of the causal link between the alleged failure of the Navy to comply with the NDAA and the possible injury to the plaintiffs does not defeat standing. City of Davis, 521 F.2d at 671. In conclusion, the plaintiffs have standing under Article III and the APA to maintain this action. The district court relied on an erroneous legal standard in reaching the opposite conclusion. B. Preliminary and Permanent In-junctive Relief A party is entitled to a preliminary injunction if it demonstrates: (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in favor of the party seeking relief. Marsh, 816 F.2d at 1382. These are not two independent tests, but the extremes of the continuum of equitable discretion. Id. at 1382-83. However, the Supreme Court has recognized this is not the test for injunctions under every statute. In TVA v. Hill, 437 U.S. 153, 193-95, 98 S.Ct. 2279, 2301-02, 57 L.Ed.2d 117 (1978), the Supreme Court held that Congress explicitly foreclosed the courts’ traditional equitable discretion when faced with a violation of section 7 of the Endangered Species Act (ESA), 16 U.S.C. § 1536. The court found that section 7 of the ESA commanded all federal agencies “to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of an endangered species.... This language admits of no exception.” Id. at 173. The Court stated that the “language, history, and structure” of the ESA demonstrates Congress’ determination that the balance of hardships and the public interest tip heavily in favor of endangered species. Id. at 174,187-88,194-95. Thus, Congress removed from the courts their traditional equitable discretion in injunction proceedings. “We may not use equity’s scales to strike a different balance.” Marsh, 816 F.2d at 1383. As in TVA v. Hill, an examination of the language, history, and structure of the NDAA demonstrates that Congress intended that no construction should commence prior to issuance of all required permits. Because we find the SMA permit is “required” and has not been “issued,” the district court erred in denying the injunction. Section 2207 of the NDAA explicitly prohibits the obligation or expenditure of funds for any construction of the homeport until all federal, state, and local permits required for dredging activity have been issued. The Conference Report accompanying section 2207 demonstrates Congress’ intention that environmental concerns about dredging activities be “fully addressed” before any homeport construction occurs. Congress re-emphasized this intent in its recent enactment of the National Defense Authorization Act for Fiscal Years 1988 and 1989. Section 2322 provides that funds may not be obligated or expended for construction of the Everett homeport until all Federal, State, and local permits required for the dredging activities to be carried out with respect to homeporting ... have been issued, including all permits required pursuant to, or otherwise in connection with, the Federal Water Pollution Control Act. Pub.L. No. 100-180, § 2322 (1987). The House Committee on Armed Services explained this provision: The provision would extend the prohibition for fiscal year 1988 funds and would specifically require that permits required under the Federal Water Pollution Control Act be obtained before these funds are released. By “dredging activities”, the committee means permits concerning disposal of the dredge spoil as well as the dredging itself. H.R.Rep. No. 58, 100th Cong., Rep. of the Comm, on Armed Services on H.R. 1748 (April 15, 1987). Like the Endangered Species Act, section 2207 is directed at a specific environmental issue — the removal and disposal of dredge spoils connected with construction of the Everett homeport. Congress explicitly prohibited expenditure of funds for any construction until all permits required for dredging have been issued. Congress could hardly have been more clear in its intent. Thus, Congress has removed from the courts their equitable discretion. The Navy relies on Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), to support its position that the court’s discretion is not limited by the NDAA. In Romero-Barcelo, an action was brought seeking to enjoin the Navy from using an island off the coast of Puer-to Rico and the surrounding waters for naval training purposes. Accidental bombings of the waters occurred. The plaintiffs sought the injunction on the ground, among others, that the Navy was polluting the waters without first obtaining a permit, as required under the Clean Water Act. The Supreme Court held that although a permit was required, the Clean Water Act did not dictate that the district court issue an injunction. The Court found that it was within the district court’s discretion simply to order the Navy to apply for a permit. In reaching this conclusion, the Court found that unlike the ESA, the CWA did not foreclose the court's traditional equitable discretion. The Court distinguished the CWA from the ESA on several grounds: (1) the CWA’s prohibition against discharge of pollutants without a permit can be overcome by the very permit the district court ordered the Navy to seek, (2) the statutory scheme of the CWA does not contemplate immediate cessation of all un-permitted discharges, and (3) because other forms of relief are available under the CWA, equitable discretion is appropriate to allow the court to order the relief it considers necessary to secure prompt compliance with the CWA. Id. at 315-18, 102 S.Ct. at 1804-06. This court in Marsh explained that in Romero-Barcelo the Supreme Court “carefully distinguished” the language of the statute at issue to determine whether Congress intended the courts to retain their equitable discretion. Marsh, 816 F.2d at 1384. The factors preserving the court’s equitable discretion in Romero-Barcelo are not present here. First, the NDAA provides only one method of achieving its purpose: withholding of funds for all construction until all permits required for dredging have been issued. Second, no alternative remedy exists that would protect these concerns. Third, compliance with the NDAA cannot be obtained by an order to the Navy, short of ordering it to cease construction until the permit review process is complete, i.e., an injunction. The NDAA limits the discretion of the courts, because by its plain language, Congress has already struck a balance favoring environmental review prior to construction of the homeport. Congress provided only one method to achieve its purpose. Thus, the district court lacked equitable discretion to deny the injunction. The plaintiffs are entitled to permanent injunc-tive relief. 1. The SMA Permit is “Required” and Has Not Been “Issued” a. The SMA Permit is Required In the Clean Water Act, Congress waived the federal government’s sovereign immunity with respect to state regulation of dredging and water pollution. Section 1344(t) provides: Nothing in this section shall preclude ... the right of any State ... agency to control the discharge of dredged or fill material in ... the navigable waters within the jurisdiction of such State, including any activity of any Federal agency, and each such agency shall comply with such State or interstate requirements both substantive and procedural to control the discharge of dredged or fill material to the same extent that any person is subject to such requirements. 33 U.S.C. § 1344(t). Section 1323 provides: Each [federal agency] ... shall ... comply with ... all ... State ... and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental enti-ty_ [This] shall apply (A) to any requirement whether substantive or procedural (including ... any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any ... State, or local administrative authority, and (C) to any process and sanction. ... This subsection shall apply notwithstanding any immunity of such agencies ... under any law or rule of law. 33 U.S.C. § 1323. The Navy does not dispute that these sections waive its sovereign immunity under the Clean Water Act. See, e.g., Northwest Indian Cemetery Protective Ass’n v. Block, 795 F.2d 688, 697 (9th Cir.1986), petition for cert. granted on other grounds, — U.S. —, 107 S.Ct. 1971, 95 L.Ed.2d 812 (1987). However, the Navy does contend that the SMA is not a state program “to control the discharge of dredged or fill material” or a state or local requirement “respecting the control and abatement of water pollution.” Rather, the Navy argues that the SMA is essentially a land use law implementing the state’s Coastal Zone Management Program, for which there has not been a waiver of sovereign immunity. The Navy also argues that the SMA permit is merely duplicative of the Navy’s 404 permit. We disagree. We find that Washington’s Shoreline Management Act regulates and controls dredging and water quality within Washington’s shoreline area. The Act states as one purpose “protecting against adverse effects to ... the waters of the state and their aquatic life.... [U]ses shall be preferred which are consistent with control of pollution.” Wash.Rev.Code § 90.58.020. The implementing regulations include a component on dredging, which provides that: Local governments should control dredging to minimize damage to existing ecological values and natural resources of both the area to be dredged and the area for deposit of dredged materials. Wash.Admin.Code § 173-16-060(16)(a). The Act requires local jurisdictions to adopt master Shoreline Master Programs (SMP) that, among other things, protect water quality and aquatic life and control dredging activities. Wash.Rev.Code §§ 90.58.020,-.030(3)(b); Wash.Admin.Code § 173-16-060(16). The SMPs “constitute use regulations for the various shorelines of the state. Wash.Rev.Code § 90.58.100(1). The city of Everett’s Shoreline Master Program implements the SMA, including its dredging requirements. The Everett SMP contains specific policies and regulations governing dredging and disposal of dredge materials. The Washington Supreme Court has declared that the Act authorizes local jurisdictions to impose water quality controls on substantial developments which require a SMA permit. Weyerhaeuser Co. v. King County, 91 Wash.2d 721, 592 P.2d 1108 (1979). In doing so, the court upheld a determination by the state Shorelines Hearings Board that “water quality is a vital consideration ... under the SMA and ... ‘[conditions of a permit relating to water quality are in furtherance of one of the many policies of the Act, namely, the protection of water quality.’ ” Id. at 734, 592 P.2d at 1115-16. The Navy’s shoreline permit reflects the dredging and water quality provisions of the SMA and Everett’s SMP. The language of the SMA, its implementing regulations, and the Washington Supreme Court’s finding in Weyerhaeuser lead to the conclusion that the SMA does “control the discharge of dredged or fill material” and is a state requirement “respecting the control and abatement of water pollution.” The Everett SMP, and the Navy’s permit approved pursuant to it, are part of that state program. The shoreline permit applies state and local dredging regulations to the Navy’s proposed dredging activities. Therefore, pursuant to the Clean Water Act, the shoreline permit is “required” within the meaning of the NDAA. The Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451-1464 (1985 & Supp.1987), was enacted to encourage wise use of coastal resources through state adoption and implementation of management programs for the coastal zone. 16 U.S.C. § 1452. Washington’s Coastal Zone Management Program, the core of which is the SMA, was adopted pursuant to the CZMA. The CZMA states that federal agencies “conducting or supporting activities directly affecting the coastal zone shall conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs.” 16 U.S.C. § 1456(c)(1). The Navy contends this means its sovereign immunity has not been waived for purposes of the CZMA. However, the CZMA itself specifically provides that it does not interfere with the requirements of the Clean Water Act: Notwithstanding any other provision of [the CZMA], nothing in [the CZMA] shall in any way affect any requirement (1) established by the Federal Water Pollution Control Act ... or (2) established by the Federal Government or by any state or local government pursuant to such Act[ ]. 16 U.S.C. § 1456(f). Therefore, the CZMA does not allow the Navy to avoid the requirements of the CWA. The Navy next argues that the SMA is primarily a land use planning scheme implementing the CZMA, and therefore is not applicable to the Navy’s activities in the coastal zone, much of which will allegedly occur on federal lands. The CZMA excludes federal lands from the “coastal zone” subject to state management. 16 U.S.C. § 1453(1). The Supreme Court rejected this argument in California Coastal Comm’n v. Granite Rock Co., — U.S. —, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987). The California Coastal Commission constitutes California’s coastal zone management program for purposes of the CZMA. Id. 107 S.Ct. at 1423. The Coastal Commission had instructed the defendant, a mining company, to apply for a coastal development permit for any mining it undertook on federal lands within the coastal zone. The Coastal Commission stated that the permit’s purpose was to impose environmental regulations, not land use planning controls, on Granite Rock’s mining operation. Id. at 1427-28, 1429. Granite Rock brought suit, alleging that the permit requirement was pre-empted by Forest Service regulations, federal land use statutes, and the CZMA. The Court rejected Granite Rock’s argument that the CZMA’s exclusion of federal lands from the coastal zone excluded those lands from all state coastal zone regulation. Id. at 1431. The Court held that the environmental permit requirements of a state statute with both environmental and land use purposes apply to activities on federal land. The Court stated: The line between environmental regulation and land use planning will not always be bright.... However, the core activity described by each phrase is undoubtedly different. Land use planning in essence chooses particular uses for the land; environmental regulation, at its core, does not mandate particular uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits. Id. at 1428. The SMA, as described above, is a mixed statute containing both land use and environmental regulations. The provisions of the SMA, Everett SMP, and the shoreline permit relating to dredging and water quality are environmental regulations. They do not mandate any particular use of the land, but only impose conditions to ensure that damage to the water is kept within prescribed limits. Therefore, the dredging and water quality regulations of the SMA and the Navy’s permit apply to the Navy’s construction of the Everett homeport, regardless of whether that activity occurs on federal or non-federal lands. The Navy’s argument that the SMA’s regulation of water quality and dredging are merely duplicative of the Navy’s 404 permit and the WDOE’s 401 certification is without merit. In Granite Rock, the Court stated that because land use regulation and environmental regulation are distinguishable, there is not necessarily duplication when a state statute requires an environmental permit, merely because one is also required by a federal agency. Id. at 1431-32. Moreover, the SMA permit is not duplica-tive. It imposes several conditions not found in the state’s 401 certification or the 404 permit, including controls on debris, regulation of dredging activities, and requirements to monitor the dredge spoils. In conclusion, the SMA permit is “required” under the NDAA. b. The Permit Has Not Been Issued The Navy argues that the SMA permit has been issued. The city of Everett approved, with conditions, the Navy’s shoreline permit application. The WDOE then reviewed and approved the permit, imposing some additional conditions. The WDOE’s approval constitutes a final order for purposes of either side appealing the decision to the Shorelines Hearings Board. Rev.Wash.Code § 90.58.180. However, the permit has not been “issued” for purposes of commencing construction pursuant to it. As required by the SMA, the permit expressly states that construction pursuant to it may not begin and “is not authorized” until all review proceedings have terminated. This stay extends through the term of the appeal to the Shorelines Hearings Board, but may be lifted by a court asked to review the Board’s decision. Wash.Rev.Code § 90.58.140(5). Thus, under Washington law the permit does not allow construction to begin while it is being appealed to the Board. This is consistent with Congress’ stated purpose in prohibiting the expenditure of funds for the Everett homeport until all dredging permits are obtained: to ensure that environmental concerns are considered prior to construction. In summary, the district court abused its discretion by denying the plaintiffs’ motion for permanent injunctive relief when it found the plaintiffs had not demonstrated irreparable harm. Under the NDAA and the CWA, the Navy must comply with Washington’s SMA, including obtaining a shoreline permit. By commencing construction of the homeport before review of that permit is complete, the Navy violated the NDAA and its shoreline permit. The district court erred in not granting the plaintiffs’ request for a permanent injunction. CONCLUSION We reverse the district court’s denial of injunctive relief to the plaintiffs. We order that as of the date of the filing of this opinion, the Navy is permanently enjoined from obligating or expending any funds for the construction of the Everett homeport until a Shoreline Management Act permit has been issued. This permit will not be considered issued until it has been approved after review by the Shorelines Hearings Board. REVERSED. . The "mole" is a manmade projection of land that juts into the water.

United States v. Riverside Bayview Homes, Inc.

Justice White delivered the opinion of the Court. This case presents the question whether the Clean Water Act (CWA), 33 U. S. C. §1251 et seq., together with certain regulations promulgated under its authority by the Army Corps of Engineers, authorizes the Corps to require landowners to obtain permits from the Corps before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries. HH The relevant provisions of the Clean Water Act originated in the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, and have remained essentially unchanged since that time. Under §§301 and 502 of the Act, 33 U. S. C. §§ 1311 and 1362, any discharge of dredged or fill materials into “navigable waters” — defined as the “waters of the United States” — is forbidden unless authorized by a permit issued by the Corps of Engineers pursuant to § 404, 33 U. S. C. § 1344. After initially construing the Act to cover only waters navigable in fact, in 1975 the Corps issued interim final regulations redefining “the waters of the United States” to include not only actually navigable waters but also tributaries of such waters, interstate waters and their tributaries, and nonnavigable intrastate waters whose use or misuse could affect interstate commerce. 40 Fed. Reg. 31320 (1975). More importantly for present purposes, the Corps construed the Act to cover all “freshwater wetlands” that were adjacent to other covered waters. A “freshwater wetland” was defined as an area that is “periodically inundated” and is “normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction.” 33 CFR § 209.120(d)(2)W (1976). In 1977, the Corps refined its definition of wetlands by eliminating the reference to periodic inundation and making other minor changes. The 1977 definition reads as follows: “The term ‘wetlands’ means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for fife in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.” 33 CFR §323.2(c) (1978). In 1982, the 1977 regulations were replaced by substantively identical regulations that remain in force today. See 33 CFR §323.2 (1985). Respondent Riverside Bayview Homes, Inc. (hereafter respondent), owns 80 acres of low-lying, marshy land near the shores of Lake St. Clair in Macomb County, Michigan. In 1976, respondent began to place fill materials on its property as part of its preparations for construction of a housing development. The Corps of Engineers, believing that the property was an “adjacent wetland” under the 1975 regulation defining “waters of the United States,” filed suit in the United States District Court for the Eastern District of Michigan, seeking to enjoin respondent from filling the property without the permission of the Corps. The District Court held that the portion of respondent’s property lying below 575.5 feet above sea level was a covered wetland and enjoined respondent from filling it without a permit. Civ. No. 77-70041 (Feb. 24, 1977) (App. to Pet. for Cert. 22a); Civ. No. 77-70041 (June 21, 1979) (App. to Pet. for Cert. 32a). Respondent appealed, and the Court of Appeals remanded for consideration of the effect of the intervening 1977 amendments to the regulation. 615 F. 2d 1363 (1980). On remand, the District Court again held the property to be a wetland subject to the Corps’ permit authority. Civ. No. 77-70041 (May 10, 1981) (App. to Pet. for Cert. 42a). Respondent again appealed, and the Sixth Circuit reversed. 729 F. 2d 391 (1984). The court construed the Corps’ regulation to exclude from the category of adjacent wetlands — and hence from that of “waters of the United States” — wetlands that were not subject to flooding by adjacent navigable waters at a frequency sufficient to support the growth of aquatic vegetation. The court adopted this construction of the regulation because, in its view, a broader definition of wetlands might result in the taking of private property without just compensation. The court also expressed its doubt that Congress, in granting the Corps jurisdiction to regulate the filling of “navigable waters,” intended to allow regulation of wetlands that were not the result of flooding by navigable waters. Under the court’s reading of the regulation, respondent’s property was not within the Corps’ jurisdiction, because its semiaquatic characteristics were not the result of frequent flooding by the nearby navigable waters. Respondent was therefore free to fill the property without obtaining a permit. We granted certiorari to consider the proper interpretation of the Corps’ regulation defining “waters of the United States” and the scope of the Corps’ jurisdiction under the Clean Water Act, both of which were called into question by the Sixth Circuit’s ruling. 469 U. S. 1206 (1985). We now reverse. M h — I The question whether the Corps of Engineers may demand that respondent obtain a permit before placing fill material on its property is primarily one of regulatory and statutory interpretation: we must determine whether respondent’s property is an “adjacent wetland” within the meaning of the applicable regulation, and, if so, whether the Corps’ jurisdiction over “navigable waters” gives it statutory authority to regulate discharges of fill material into such a wetland. In this connection, we first consider the Court of Appeals’ position that the Corps’ regulatory authority under the statute and its implementing regulations must be narrowly construed to avoid a taking without just compensation in violation of the Fifth Amendment. We have frequently suggested that governmental land-use regulation may under extreme circumstances amount to a “taking” of the affected property. See, e. g., Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U. S. 172 (1985); Penn Central Transportation Co. v. New York City, 438 U. S. 104 (1978). We have never precisely defined those circumstances, see id., at 123-128; but our general approach was summed up in Agins v. Tiburon, 447 U. S. 255, 260 (1980), where we stated that the application of land-use regulations to a particular piece of property is a taking only “if the ordinance does not substantially advance legitimate state interests ... or denies an owner economically viable use of his land.” Moreover, we have made it quite clear that the mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking. See Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U. S. 264, 293-297 (1981). The reasons are obvious. A requirement that a person obtain a permit before engaging in a certain use of his or her property does not itself “take” the property in any sense: after all, the very existence of a permit system implies that permission may be granted, leaving the landowner free to use the property as desired. Moreover, even if the permit is denied, there may be other viable uses available to the owner. Only when a permit is denied and the effect of the denial is to prevent “economically viable” use of the land in question can it be said that a taking has occurred. If neither the imposition of the permit requirement itself nor the denial of a permit necessarily constitutes a taking, it follows that the Court of Appeals erred in concluding that a narrow reading of the Corps’ regulatory jurisdiction over wetlands was “necessary” to avoid “a serious taking problem.” 729 F. 2d, at 398. We have held that, in general, “[e]quitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to a taking.” Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1016 (1984) (footnote omitted). This maxim rests on the principle that so long as compensation is available for those whose property is in fact taken, the governmental action is not unconstitutional. Williamson County, swpra, at 194-195. For precisely the same reason, the possibility that the application of a regulatory program may in some instances result in the taking of individual pieces of property is no justification for the use of narrowing constructions to curtail the program if compensation will in any event be available in those cases where a taking has occurred. Under such circumstances, adoption of a narrowing construction does not constitute avoidance of a constitutional difficulty, cf. Ashwander v. TVA, 297 U. S. 288, 341-356 (1936) (Brandéis, J., concurring); it merely frustrates permissible applications of a statute or regulation. Because the Tucker Act, 28 U. S. C. §1491, which presumptively supplies a means of obtaining compensation for any taking that may occur through the operation of a federal statute, see Ruckelshaus v. Monsanto Co., supra, at 1017, is available to provide compensation for takings that may result from the Corps’ exercise of jurisdiction over wetlands, the Court of Appeals’ fears that application of the Corps’ permit program might result in a taking did not justify the court in adopting a more limited view of the Corps’ authority than the terms of the relevant regulation might otherwise support. Ill Purged of its spurious constitutional overtones, the question whether the regulation at issue requires respondent to obtain a permit before filling its property is an easy one. The regulation extends the Corps’ authority under § 404 to all wetlands adjacent to navigable or interstate waters and their tributaries. Wetlands, in turn, are defined as lands that are “inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” 33 CFR § 323.2(c) (1985) (emphasis added). The plain language of the regulation refutes the Court of Appeals’ conclusion that inundation or “frequent flooding” by the adjacent body of water is a sine qua non of a wetland under the regulation. Indeed, the regulation could hardly state more clearly that saturation by either surface or ground water is sufficient to bring an area within the category of wetlands, provided that the saturation is sufficient to and does support wetland vegetation. The history of the regulation underscores the absence of any requirement of inundation. The interim final regulation that the current regulation replaced explicitly included a requirement of “periodi[c] inundation.” 33 CFR §209.120-(d)(2)(7t) (1976). In deleting the reference to “periodic inundation” from the regulation as finally promulgated, the Corps explained that it was repudiating the interpretation of that language “as requiring inundation over a record period of years.” 42 Fed. Reg. 37128 (1977). In fashioning its own requirement of “frequent flooding” the Court of Appeals improperly reintroduced into the regulation precisely what the Corps had excised. Without the nonexistent requirement of frequent flooding, the regulatory definition of adjacent wetlands covers the property here. The District Court found that respondent’s property was “characterized by the presence of vegetation that requires saturated soil conditions for growth and reproduction,” App. to Pet. for Cert. 24a, and that the source of the saturated soil conditions on the property was ground water. There is no plausible suggestion that these findings are clearly erroneous, and they plainly bring the property within the category of wetlands as defined by the current regulation. In addition, the court found that the wetland located on respondent’s property was adjacent to a body of navigable water, since the area characterized by saturated soil conditions and wetland vegetation extended beyond the boundary of respondent’s property to Black Creek, a navigable waterway. Again, the court’s finding is not clearly erroneous. Together, these findings establish that respondent’s property is a wetland adjacent to a navigable waterway. Hence, it is part of the “waters of the United States” as defined by 33 CFR § 323.2 (1985), and if the regulation itself is valid as a construction of the term “waters of the United States” as used in the Clean Water Act, a question which we now address, the property falls within the scope of the Corps’ jurisdiction over “navigable waters” under § 404 of the Act. > J — I A An agency’s construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress. Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 125 (1985); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984). Accordingly, our review is limited to the question whether it is reasonable, in light of the language, policies, and legislative history of the Act for the Corps to exercise jurisdiction over wetlands adjacent to but not regularly flooded by rivers, streams, and other hydrographic features more conventionally identifiable as “waters.” On a purely linguistic level, it may appear unreasonable to classify “lands,” wet or otherwise, as “waters.” Such a simplistic response, however, does justice neither to the problem faced by the Corps in defining the scope of its authority under § 404(a) nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat. In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may-lie shallows, marshes, mudflats, swamps, bogs — in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of “waters” is far from obvious. Faced with such a problem of defining the bounds of its regulatory authority, an agency may appropriately look to the legislative history and underlying policies of its statutory grants of authority. Neither of these sources provides unambiguous guidance for the Corps in this case, but together they do support the reasonableness of the Corps’ approach of defining adjacent wetlands as “waters” within the meaning of § 404(a). Section 404 originated as part of the Federal Water Pollution Control Act Amendments of 1972, which constituted a comprehensive legislative attempt “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” CWA § 101, 33 U. S. C. § 1251. This objective incorporated a broad, systemic view of the goal of maintaining and improving water quality: as the House Report on the legislation put it, “the word ‘integrity’. . . refers to a condition in which the natural structure and function of ecosystems [are] maintained.” H. R. Rep. No. 92-911, p. 76 (1972). Protection of aquatic ecosystems, Congress recognized, demanded broad federal authority to control pollution, for “[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source.” S. Rep. No. 92-414, p. 77 (1972). In keeping with these views, Congress chose to define the waters covered by the Act broadly. Although the Act prohibits discharges into “navigable waters,” see CWA §§ 301(a), 404(a), 502(12), 33 U. S. C. §§ 1311(a), 1344(a), 1362(12), the Act’s definition of “navigable waters” as “the waters of the United States” makes it clear that the term “navigable” as used in the Act is of limited import. In adopting this definition of “navigable waters,” Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed “navigable” under the classical understanding of that term. See S. Conf. Rep. No. 92-1236, p. 144 (1972); 118 Cong. Rec. 33756-33757 (1972) (statement of Rep. Dingell). Of course, it is one thing to recognize that Congress intended to allow regulation of waters that might not satisfy traditional tests of navigability; it is another to assert that Congress intended to abandon traditional notions of “waters” and include in that term “wetlands” as well. Nonetheless, the evident breadth of congressional concern for protection of water quality and aquatic ecosystems suggests that it is reasonable for the Corps to interpret the term “waters” to encompass wetlands adjacent to waters as more conventionally defined. Following the lead of the Environmental Protection Agency, see 38 Fed. Reg. 10834 (1973), the Corps has determined that wetlands adjacent to navigable waters do as a general matter play a key role in protecting and enhancing water quality: “The regulation of activities that cause water pollution cannot rely on . . . artificial lines . . . but must focus on all waters that together form the entire aquatic system. Water moves in hydrologic cycles, and the pollution of this part of the aquatic system, regardless of whether it is above or below an ordinary high water mark, or mean high tide line, will affect the water quality of the other waters within that aquatic system. “For this reason, the landward limit of Federal jurisdiction under Section 404 must include any adjacent wetlands that form the border of or are in reasonable proximity to other waters of the United States, as these wetlands are part of this aquatic system.” 42 Fed. Reg. 37128 (1977). We cannot say that the Corps’ conclusion that adjacent wetlands are inseparably bound up with the “waters” of the United States — based as it is on the Corps’ and EPA’s technical expertise — is unreasonable. In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps’ ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act. This holds true even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water. The Corps has concluded that wetlands may affect the water quality of adjacent lakes, rivers, and streams even when the waters of those bodies do not actually inundate the wetlands. For example, wetlands that are not flooded by adjacent waters may still tend to drain into those waters. In such circumstances, the Corps has concluded that wetlands may serve to filter and purify water draining into adjacent bodies of water, see 33 CFR § 320.4(b)(2)(vii) (1985), and to slow the flow of surface runoff into lakes, rivers, and streams and thus prevent flooding and erosion, see §§320.4(b)(2)(iv) and (v). In addition, adjacent wetlands may “serve significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites for aquatic . . . species.” § 320-4(b)(2)(i). In short, the Corps has concluded that wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water. Again, we cannot say that the Corps’ judgment on these matters is unreasonable, and we therefore conclude that a definition of “waters of the United States” encompassing all wetlands adjacent to other bodies of water over which the Corps has jurisdiction is a permissible interpretation of the Act. Because respondent’s property is part of a wetland that actually abuts on a navigable waterway, respondent was required to have a permit in this case. B Following promulgation of the Corps’ interim final regulations in 1975, the Corps’ assertion of authority under §404 over waters not actually navigable engendered some congressional opposition. The controversy came to a head during Congress’ consideration of the Clean Water Act of 1977, a major piece of legislation aimed at achieving “interim improvements within the existing framework” of the Clean Water Act. H. R. Rep. No. 95-139, pp. 1-2 (1977). In the end, however, as we shall explain, Congress acquiesced in the administrative construction. Critics of the Corps’ permit program attempted to insert limitations on the Corps’ § 404 jurisdiction into the 1977 legislation: the House bill as reported out of committee proposed a redefinition of “navigable waters” that would have limited the Corps’ authority under § 404 to waters navigable in fact and their adjacent wetlands (defined as wetlands periodically inundated by contiguous navigable waters). H. R. 3199, 95th Cong., 1st Sess., § 16 (1977). The bill reported by the Senate Committee on Environment and Public Works, by contrast, contained no redefinition of the scope of the “navigable waters” covered by § 404, and dealt with the perceived problem of overregulation by the Corps by exempting certain activities (primarily agricultural) from the permit requirement and by providing for assumption of some of the Corps’ regulatory duties by federally approved state programs. S. 1952, 95th Cong., 1st Sess., §49(b) (1977). On the floor of the Senate, however, an amendment was proposed limiting the scope of “navigable waters” along the lines set forth in the House bill. 123 Cong. Rec. 26710-26711 (1977). In both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation. See id., at 10426-10432 (House debate); id., at 26710-26729 (Senate debate). Proponents of a more limited § 404 jurisdiction contended that the Corps’ assertion of jurisdiction over wetlands and other nonnavigable “waters” had far exceeded what Congress had intended in enacting § 404. Opponents of the proposed changes argued that a narrower definition of “navigable waters” for purposes of § 404 would exclude vast stretches of crucial wetlands from the Corps’ jurisdiction, with detrimental effects on wetlands ecosystems, water quality, and the aquatic environment generally. The debate, particularly in the Senate, was lengthy. In the House, the debate ended with the adoption of a narrowed definition of “waters”; but in the Senate the limiting amendment was defeated and the old definition retained. The Conference Committee adopted the Senate’s approach: efforts to narrow the definition of “waters” were abandoned; the legislation as ultimately passed, in the words of Senator Baker, “retain[ed] the comprehensive jurisdiction over the Nation’s waters exercised in the 1972 Federal Water Pollution Control Act.” The significance of Congress’ treatment of the Corps’ § 404 jurisdiction in its consideration of the Clean Water Act of 1977 is twofold. First, the scope of the Corps’ asserted jurisdiction over wetlands was specifically brought to Congress’ attention, and Congress rejected measures designed to curb the Corps’ jurisdiction in large part because of its concern that protection of wetlands would be unduly hampered by a narrowed definition of “navigable waters.” Although we are chary of attributing significance to Congress’ failure to act, a refusal by Congress to overrule an agency’s construction of legislation is at least some evidence of the reasonableness of that construction, particularly where the administrative construction has been brought to Congress’ attention through legislation specifically designed to supplant it. See Bob Jones University v. United States, 461 U. S. 574, 599-601 (1983); United States v. Rutherford, 442 U. S. 544, 554, and n. 10 (1979). Second, it is notable that even those who would have restricted the reach of the Corps’ jurisdiction would have done so not by removing wetlands altogether from the definition of “waters of the United States,” but only by restricting the scope of “navigable waters” under § 404 to waters navigable in fact and their adjacent wetlands. In amending the definition of “navigable waters” for purposes of §404 only, the backers of the House bill would have left intact the existing definition of “navigable waters” for purposes of § 301 of the Act, which generally prohibits discharges of pollutants into navigable waters. As the House Report explained: “‘Navigable waters’ as used in section 301 includes all of the waters of the United States including their adjacent wetlands.” H. R. Rep. No. 95-139, p. 24 (1977). Thus, even those who thought that the Corps’ existing authority under §404 was too broad recognized (1) that the definition of “navigable waters” then in force for both § 301 and § 404 was reasonably interpreted to include adjacent wetlands, (2) that the water quality concerns of the Clean Water Act demanded regulation of at least some discharges into wetlands, and (3) that whatever jurisdiction the Corps would retain over discharges of fill material after passage of the 1977 legislation should extend to discharges into wetlands adjacent to any waters over which the Corps retained jurisdiction. These views provide additional support for a conclusion that Congress in 1977 acquiesced in the Corps’ definition of waters as including adjacent wetlands. Two features actually included in the legislation that Congress enacted in 1977 also support the view that the Act authorizes the Corps to regulate discharges into wetlands. First, in amending §404 to allow federally approved state permit programs to supplant regulation by the Corps of certain discharges of fill material, Congress provided that the States would not be permitted to supersede the Corps’ jurisdiction to regulate discharges into actually navigable waters and waters subject to the ebb and flow of the tide, “including wetlands adjacent thereto.” CWA § 404(g)(1), 33 U. S. C. § 1344(g)(1). Here, then, Congress expressly stated that the term “waters” included adjacent wetlands. Second, the 1977 Act authorized an appropriation of $6 million for completion by the Department of Interior of a “National Wetlands Inventory” to assist the States “in the development and operation of programs under this Act.” CWA §208(i)(2), 33 U. S. C. §1288(i)(2). The enactment of this provision reflects congressional recognition that wetlands are a concern of the Clean Water Act and supports the conclusion that in defining the waters covered by the Act to include wetlands, the Corps is “implementing congressional policy rather than embarking on a frolic of its own.” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 375 (1969). C We are thus persuaded that the language, policies, and history of the Clean Water Act compel a finding that the Corps has acted reasonably in interpreting the Act to require permits for the discharge of fill material into wetlands adjacent to the “waters of the United States.” The regulation in which the Corps has embodied this interpretation by its terms includes the wetlands on respondent’s property within the class of waters that may not be filled without a permit; and, as we have seen, there is no reason to interpret the regulation more narrowly than its terms would indicate. Accordingly, the judgment of the Court of Appeals is Reversed. With respect to certain waters, the Corps’ authority may be transferred to States that have devised federally approved permit programs. CWA § 404(g), as added, 91 Stat. 1600, 33 U. S. C. § 1344(g). Absent such an approved program, the Corps retains jurisdiction under § 404 over all “waters of the United States.” The regulations also cover certain wetlands not necessarily adjacent to other waters. See 33 CFR §§ 323.2(a)(2) and (3) (1985). These provisions are not now before us. In denying the Government’s petition for rehearing, the panel reiterated somewhat more strongly its belief that the Corps’ construction of its regulation was “overbroad and inconsistent with the language of the Act.” 729 F. 2d, at 401. Even were the Court of Appeals correct in concluding that a narrowing construction of the regulation is necessary to avoid takings of property through the application of the permit requirement, the construction adopted — which requires a showing of frequent flooding before property may be classified as a wetland — is hardly tailored to the supposed difficulty. Whether the denial of a permit would constitute a taking in any given case would depend upon the effect of the denial on the owner’s ability to put the property to productive use. Whether the property was frequently flooded would have no particular bearing on this question, for overbroad regulation of even completely submerged property may constitute a taking. See, e. g., Kaiser Aetna v. United States, 444 U. S. 164 (1979). Indeed, it may be more likely that denying a permit to fill frequently flooded property will prevent economically viable use of the property than denying a permit to fill property that is wet but not flooded. Of course, by excluding a large chunk of the Nation’s wetlands from the regulatory definition, the Court of Appeals’ construction might tend to limit the gross number of takings that the permit program would otherwise entail; but the construction adopted still bears an insufficiently precise relationship with the problem it seeks to avoid. United States v. Security Industrial Bank, 459 U. S. 70 (1982), in which we adopted a narrowing construction of a statute to avoid a taking difficulty, is not to the contrary. In that case, the problem was that there was a substantial argument that retroactive application of a particular provision of the Bankruptcy Code would in every ease constitute a taking; the solution was to avoid the difficulty by construing the statute to apply only prospectively. Such an approach is sensible where it appears that there is an identifiable class of cases in which application of a statute will necessarily constitute a taking. As we have observed, this is not such a case: there is no identifiable set of instances in which mere application of the permit requirement will necessarily or even probably constitute a taking. The approach of adopting a limiting construction is thus unwarranted. Because the Corps has now denied respondent a permit to fill its property, respondent may well have a ripe claim that a taking has occurred. On the record before us, however, we have no basis for evaluating this claim, because no evidence has been introduced that bears on the question of the extent to which denial of a permit to fill this property will prevent economically viable uses of the property or frustrate reasonable investment-backed expectations. In any event, this lawsuit is not the proper forum for resolving such a dispute: if the Corps has indeed effectively taken respondent’s property, respondent’s proper course is not to resist the Corps’ suit for enforcement by denying that the regulation covers the property, but to initiate a suit for compensation in the Claims Court. In so stating, of course, we do not rule that respondent will be entitled to compensation for any temporary denial of use of its property should the Corps ultimately relent and allow it to be filled. We have not yet resolved the question whether compensation is a constitutionally mandated remedy for “temporary regulatory takings,” see Williamson County Planning Comm’n v. Hamilton Bank, 473 U. S. 172 (1985), and this case provides no occasion for deciding the issue. The Court of Appeals seems also to have rested its frequent-flooding requirement on the language in the regulation stating that wetlands encompass those areas that “under normal circumstances do support” aquatic or semiaquatic vegetation. In the preamble to the final regulation, the Corps explained that this language was intended in part to exclude areas characterized by the “abnormal presence of aquatic vegetation in a non-aquatic area.” 42 Fed. Reg. 37128 (1977). Apparently, the Court of Appeals concluded that the growth of wetlands vegetation in soils saturated by ground water rather than flooded by waters emanating from an adjacent navigable water or its tributaries was “abnormal” within the meaning of the preamble. This interpretation is untenable in light of the explicit statements in both the regulation and its preamble that areas saturated by ground water can fall within the category of wetlands. It would be nonsensical for the Corps to define wetlands to include such areas and then in the same sentence exclude them on the ground that the presence of wetland vegetation in such areas was abnormal. Evidently, the Corps had something else in mind when it referred to “abnormal” growth of wetlands vegetation — namely, the aberrational presence of such vegetation in dry, upland areas. We are not called upon to address the question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water, see 33 CFR §§ 323.2(a)(2) and (3) (1985), and we do not express any opinion on that question. Of course, it may well be that not every adjacent wetland is of great importance to the environment of adjoining bodies of water. But the existence of such cases does not seriously undermine the Corps’ decision to define all adjacent wetlands as “waters.” If it is reasonable for the Corps to conclude that in the majority of cases, adjacent wetlands have significant effects on water quality and the aquatic ecosystem, its definition can stand. That the definition may include some wetlands that are not significantly intertwined with the ecosystem of adjacent waterways is of little moment, for where it appears that a wetland covered by the Corps’ definition is in fact lacking in importance to the aquatic environment — or where its importance is outweighed by other values — the Corps may always allow development of the wetland for other uses simply by issuing a permit. See 33 CFR § 320.4(b)(4) (1985). 123 Cong. Rec. 39209 (1977); see also id., at 39210 (statement of Sen. Wallop); id., at 39196 (statement of Sen. Randolph); id., at 38950 (statement of Rep. Murphy); id., at 38994 (statement of Rep. Ambro). To be sure, §404(g)(1) does not conclusively determine the construction to be placed on the use of the term “waters” elsewhere in the Act (particularly in § 502(7), which contains the relevant definition of “navigable waters”); however, in light of the fact that the various provisions of the Act should be read in pari materia, it does at least suggest strongly that the term “waters” as used in the Act does not necessarily exclude “wetlands.”

Dakota v. United States

Justice Blackmun delivered the opinion of the Court. Under the federal Migratory Bird Hunting Stamp Act, the Secretary of the Interior is authorized to acquire easements over small wetland areas suitable for migratory waterfowl breeding and nesting grounds. Although the State of North Dakota initially consented to the Secretary’s acquisition of easements over certain wetlands, the State now seeks to withdraw its consent and to impose conditions on any future acquisitions. This has led to the present litigation, for the State’s present posture raises the question whether the Secretary may proceed to acquire easements pursuant to North Dakota’s prior consent. A In 1929, the Migratory Bird Conservation Act (Conservation Act), 45 Stat. 1222, ch. 257, 16 U. S. C. §715 et seq., became law. By § 5 of that Act, 45 Stat. 1223, the Secretary of the Interior was authorized to acquire land “for use as inviolate sanctuaries for migratory birds.” Land acquisitions under the Conservation Act are subject to certain conditions: they must be approved in advance by the Migratory Bird Conservation Commission, §§2 and 5, 16 U. S. C. §§715a and 715d, and the State in which the land is located must “have consented by law to the acquisition,” § 7, 16 U. S. C. § 715f. In 1934, in order to provide funding for land acquisitions under the Conservation Act, the Migratory Bird Hunting Stamp Act (Stamp Act), 48 Stat. 451, 16 U. S. C. §718 et seq., was enacted. Section 1 of the Stamp Act, 16 U. S. C. §718a, required waterfowl hunters to purchase migratory bird hunting stamps, commonly known as duck stamps. By §4, 16 U. S. C. §718d, the proceeds from the sale of the stamps were to form a special “migratory bird conservation fund” (conservation fund) to be used primarily to pay for “the location, ascertainment, acquisition, administration, maintenance, and development” of bird sanctuaries pursuant to the Conservation Act. To hasten the acquisition of land suitable for waterfowl habitats, Congress amended the Stamp Act in 1958. The price of a duck stamp was increased, and, most important for our present purposes, the Secretary of the Interior was authorized to expend money from the conservation fund for a new type of property: “small wetland and pothole areas, interests therein, and rights-of-way to provide access thereto,” the small areas “to be designated as ‘Waterfowl Production Areas.’” Pub. L. 85-585, §3, 72 Stat. 487, 16 U. S. C. §718d(c). Such waterfowl production areas could be “acquired without regard to the limitations and requirements of the Migratory Bird Conservation Act.” Ibid. Because these waterfowl production areas did not have to be maintained as sanctuaries, there was no need for them to be purchased outright; the Secretary was authorized to acquire easements prohibiting fee owners from draining their wetlands or otherwise destroying the wetlands’ suitability as breeding grounds. Despite the 1958 amendments, however, the proceeds from duck stamp sales proved insufficient to acquire land at the rate Congress deemed necessary. Accordingly, a new source of income was provided through the Wetlands Act of 1961 (Loan Act), Pub. L. 87-383, 75 Stat. 813. Section 1 of this new Act originally authorized sums for appropriation not to exceed $105 million for a 7-year period. These sums were to be added to the conservation fund in the form of interest-free loans that were to be repaid out of duck stamp proceeds. In addition, § 3 of the Loan Act provided that no land could be acquired with money from the conservation fund unless consent had been obtained from the Governor or an appropriate agency of the State in which the land was located. B The principal waterfowl breeding grounds in the continental United States are located in four States of the northern Great Plains — North Dakota, South Dakota, Minnesota, and Montana. North Dakota, in particular, is rich in wetlands suitable for waterfowl breeding, and the Government’s acquisition of North Dakota land has been given high priority. See, e. g., H. R. Rep. No. 95-1518, p. 5 (1978); S. Rep. No. 94-594, p. 3 (1976). For the most part, North Dakota has cooperated with federal efforts to preserve waterfowl habitats. Two years after the Conservation Act went into effect, the State, pursuant to § 7 of that Act, 45 Stat. 1223, 16 U. S. C. § 715f, gave its consent to the “acquisition by the United States ... of such areas of land or water, or of land and water, in the State of North Dakota, as the United States may deem necessary for the establishment of migratory bird reservations.” 1931 N. D. Laws, ch. 207, p. 360. By 1958, the United States had acquired more than 276,000 acres of North Dakota land for use as migratory bird refuges. Hearings on S. 2447 et al. before a Subcommittee of the Senate Committee on Interstate and Foreign Commerce, 85th Cong., 2d Sess., 79-81 (1958). When the Loan Act was passed in 1961, the United States, through its Fish and Wildlife Service, promptly sought the necessary gubernatorial consent from Governor Guy of North Dakota. Between 1961 and 1977, Governor Guy and his successor, Governor Link, consented to the acquisition of easements covering approximately 1.5 million acres of wetlands. The consents specified the maximum acreage to be acquired within each county in the State, but did not list particular parcels. By 1977, the Fish and Wildlife Service had obtained easements covering about half of the total wetlands acreage authorized by the consents. In the mid-1970’s cooperation between North Dakota and the United States began to break down. The sources of the dispute are not altogether clear; the State accuses the United States of misleading landowners from whom it purchased easements, and of reneging on some unrelated agreements relating to flood-control projects. See Record 19-20, 40; Brief for Appellant 30-33. In any event, North Dakota enacted legislation in 1977 restricting the United States’ ability to acquire easements over wetlands. 1977 N. D. Laws, ch. 204, p. 461, and ch. 426, p. 923. The 1977 legislation affects the acquisition of wetlands easements in three major ways. First, §2 of ch. 204, codified as N. D. Cent. Code §20.1-02-18.1 (Supp. 1981), as amended by 1979 N. D. Laws, ch. 553, § 11, p. 1412, requires the Governor to submit proposed wetlands acquisitions for approval by the board of county commissioners of the county in which the land is located. The “federal agency involved” — here, the United States Fish and Wildlife Service — must provide the county with a “detailed impact analysis,” and the county, as well, is directed to prepare an impact analysis at federal expense. If the county does not recommend the acquisition, the Governor may not approve it. Next, §3 of ch. 204, codified as §20.1-02-18.2, as amended by 1981 N. D. Laws, ch. 258, p. 654, authorizes the landowner to negotiate the terms and time period of the easement acquired by the United States, to restrict the easement “by legal description to the land, wetland, or water areas being sought,” and to “drain any after-expanded wetland or water area in excess of the legal description.” Finally, §1 of ch. 426, codified as N. D. Cent. Code §47-05-02.1 (1978), restricts all easements to a maximum duration of 99 years. Because these restrictions have cast doubt upon the sufficiency of its title, the United States has acquired no easement over North Dakota wetlands since 1977. In 1979, the United States brought suit in the United States District Court for the District of North Dakota, seeking a declaratory judgment that the 1977 state statutes were hostile to federal law in certain respects and could not be applied; that any easement acquired in violation of the 1977 statutes would nevertheless be valid; and that the legislative-consent provision of the Conservation Act, § 7, 45 Stat. 1223, 16 U. S. C. § 715f, did not apply to the acquisition of waterfowl production areas under the Stamp Act. The District Court granted summary judgment for the United States, App. to Juris. Statement 16a, and the United States Court of Appeals for the Eighth Circuit affirmed. 650 F. 2d 911 (1981). We noted probable jurisdiction over North Dakota’s appeal. 455 U. S. 987 (1982). II The protection of migratory birds has long been recognized as “a national interest of very nearly the first magnitude.” Missouri v. Holland, 252 U. S. 416, 435 (1920). Since the turn of the century, the Secretaries of Agriculture and of the Interior successively have been charged with responsibility for “the preservation, distribution, introduction, and restoration of game birds and other wild birds.” Act of May 25, 1900, 31 Stat. 187, 16 U. S. C. § 701. A series of treaties dating back to 1916 obligates the United States to preserve and protect migratory birds through the regulation of hunting, the establishment of refuges, and the protection of bird habitats. By providing for the acquisition of sanctuaries and waterfowl production areas, the Conservation Act and the Stamp Act play a central role in assuring that our Nation’s migratory birds will continue to flourish. In the absence of federal legislation to the contrary, the United States unquestionably has the power to acquire wetlands for waterfowl production areas, by purchase or condemnation, without state consent. Paul v. United States, 371 U. S. 245, 264 (1963); Kohl v. United States, 91 U. S. 367, 371-372 (1876). Here,. however, Congress has conditioned any such acquisition upon the United States’ obtaining the consent of the Governor of the State in which the land is located. North Dakota concedes that its Governors, at various times since 1961, have consented to the acquisition of easements over 1.5 million acres of North Dakota wetlands. The issue before us is whether North Dakota may revoke its consent to the acquisition of further easements in the State, and whether North Dakota by statute may impose conditions and restrictions on the United States’ power to acquire easements. A North Dakota’s central argument is that the gubernatorial consent required by 16 U. S. C. § 715k-5, once given, may be revoked by the State at will. North Dakota reads §715k-5 to require not only that the Governor have consented to the acquisition of land for waterfowl production areas, but also that the Governor (and his successors in office) must continue to consent until the moment the land is actually acquired. Thus, although the United States has acquired easements over only half the acreage authorized by Governors Guy and Link, North Dakota asserts that it can terminate the United States’ power to acquire the remainder. The United States takes the position that § 715k-5 does not permit a State to revoke its consent at will; once consent has been given, “the role assigned to the state by Congress has been exhausted.” Brief for United States 24. As with any case involving statutory interpretation, “we state once again the obvious when we note that, in determining the scope of a statute, one is to look first at its language.” Dickerson v. New Banner Institute, Inc., ante, at 110. See Transamerica Mortgage Advisors, Inc. v. Lems, 444 U. S. 11, 19 (1979). “Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). The language of §715k-5 is uncomplicated; it provides that money from the conservation fund shall not be used to acquire land “unless the acquisition thereof has been approved” by the Governor or the appropriate state agency. In this case, the acquisition of approximately 1.5 million acres of wetlands clearly “has been approved” by North Dakota’s Governors. Nothing in the statute authorizes the withdrawal of approval previously given. Nor does the legislative history of §715k-5 suggest that Congress intended to permit Governors to revoke their consent. Before 1961, neither legislative nor gubernatorial consent was required prior to the acquisition of wetlands for waterfowl production areas. State legislative consent was a prerequisite to the acquisition of bird sanctuaries, § 715f, but waterfowl production areas were expressly exempted from this requirement, § 718d(c). Nonetheless, the United States followed an informal practice of obtaining agreement from the Governor or appropriate state agency before acquisition. The gubernatorial-consent provision was intended simply to incorporate this practice. 107 Cong. Rec. 17171 (1961) (remarks of Sen. Magnuson); id., at 17172 (remarks of Sen. Hruska). There is no indication in the legislative history or elsewhere that under this prior practice a Governor could withdraw consent already given. In the absence of any evidence to the contrary, we must conclude that the consent required by § 715k-5 cannot be revoked at the will of an incumbent Governor. To hold otherwise would be inconsistent with the very purpose behind the Loan Act of which § 715k-5 is a part. The Loan Act was expressly intended to facilitate the acquisition of wetlands by making available an additional source of funds. The legislative history is replete with references to the need to preserve the Nation’s wetlands by bringing four to five million additional acres under federal control. See Hearings on S. 2187 et al. before the Merchant Marine and Fisheries Subcommittee of the Senate Committee on Commerce, 87th Cong., 1st Sess., 14-19, 23-24, 28-31, 33-39 (1961); S. Rep. No. 705, 87th Cong., 1st Sess., 2 (1961); H. R. Rep. No. 545, 87th Cong., 1st Sess., 1-2 (1961). Obviously, this acquisition could not take place overnight; careful planning over many years was anticipated. See S. Rep. No. 705, supra, at 2. If consent under §715k-5 were revocable, the United States’ ability to engage in such planning would be severely hampered. A detailed federal program involving the estimate of needs, setting of priorities, allocation of funds, and negotiations with landowners could be negated in an instant by a Governor’s decision that the politics of the moment made further federal acquisitions undesirable. Our conclusion in this regard is strengthened by the fact that, at the time of its enactment, the gubernatorial-consent provision was not at all controversial. It was added by the Senate Committee on Commerce without explanation, see S. Rep. No. 705, supra, at 3, and was accepted by the House of Representatives without explanation or discussion, see H. R. Conf. Rep. No. 1184, 87th Cong., 1st Sess., 1 (1961); 107 Cong. Rec. 21184 (1961). The only discussion of the provision came on the Senate floor, when that body was assured that it did no more than formalize the existing practice of gaining state approval prior to acquiring land. We are unwilling to assume that Congress, while expressing its firm belief in the need to preserve additional wetlands, so casually would have undercut the United States’ ability to plan for their preservation. Clearly, Congress intended the States to play an important role in the planning process. But once plans have been made and the Governor’s approval has been freely given, the role of the State indeed is at an end. It is then up to the United States to choose how best to use its resources in putting its acquisition plans into effect. Although it has been intimated that a Governor’s consent might become revocable if the United States were to delay unreasonably its land acquisitions pursuant to the consent, see Brief for United States 26; Tr. of Oral Arg. 35, we need not reach that issue here. In this case, there has been no unreasonable delay. Until North Dakota’s legislation interfered in 1977, the United States had pursued diligently its program of acquiring wetlands easements in North Dakota. The acreage fluctuated somewhat from year to year, but the acquisitions each year were substantial. In 1958, when Congress first authorized the Secretary of the Interior to acquire waterfowl production areas, it was generally anticipated that the United States’ acquisition program would take a minimum of 20 to 25 years to complete. The acquisition program had been underway for only 16 years in 1977, a time-span well within the limits contemplated by Congress. B We next consider North Dakota’s 1977 legislation, which purports to impose conditions on the United States’ power to acquire further wetlands easements. Because the statutes at issue raise somewhat different concerns, we discuss each in turn. 1. N. D. Cent. Code §20.1-02-18.1 (Supp. 1981). This statute sets out certain conditions that must be met “prior to final approval” of the acquisition of wetlands easements. The only sanction provided in §20.1-02-18.1 for failure to comply with its conditions is that consent for the acquisitions will be refused. North Dakota explains that this represents the State’s decision “to qualify or condition any consent to future acquisitions.” Brief for Appellant 33; see id., at 35. We thus need not consider in this case whether the gubernatorial-consent provision, 16 U. S. C. §715k-5, permits North Dakota to impose these conditions on any consent it chooses to give in the future. At issue here is the status of acquisitions authorized by consents already given. We do not understand the State to argue that §20.1-02-18.1 imposes retroactive conditions on these prior consents. By its terms, the statute has no application to the acquisition of easements for which consent previously has been given, because nothing in the statute purports to limit the United States’ power to acquire land once “final approval” has been obtained. Moreover, any attempt to impose retroactive conditions clearly would be unavailing. We have ruled above that once the requisite gubernatorial consent has been obtained, it may not be revoked. Since 16 U. S. C. § 715k-5 does not permit North Dakota to revoke its consent outright, North Dakota may not revoke its consent based on noncompliance with the conditions set forth in N. D. Cent. Code §20.1-02-18.1 (Supp. 1981). 2. N. D. Cent. Code §20.1-02-18.2 (Supp. 1981). The United States does not challenge those portions of §20.1-02-18.2 that permit a landowner to negotiate the conditions of an easement and restrict the scope of the easement to a particular legal description. The United States does object, however, to that part of § 20.1-02-18.2(2) that permits a landowner to “drain any after-expanded wetland or water area in excess of the legal description in the . . . easement . . . .” The United States’ standard easement agreement contains a clause prohibiting the draining of after-expanded wetlands, see n. 6, supra, and §20.1-02-18.2(2) might be read to void such clauses even when agreed to by the landowner. This Court addressed a similar situation in United States v. Little Lake Misere Land Co., 412 U. S. 580 (1978). In that case, the United States had exercised its authority under the Conservation Act to acquire land in Louisiana for use as a wildlife refuge. Mineral rights were reserved to the prior landowners for a period of 10 years, subject to extensions under certain conditions. A Louisiana statute barred the reversion of the mineral rights to the United States, and thus in effect extended the prior landowners’ mineral rights indefinitely. Applying Clearfield Trust Co. v. United States, 318 U. S. 363 (1943), this Court concluded that because the United States’ acquisition of land under the Conservation Act “is one arising from and bearing heavily upon a federal regulatory program . . . , the choice-of-law task is a federal task for federal courts.” 412 U. S., at 592. The key factors in Little Lake Misere were that “[w]e deal[t] with the interpretation of a land acquisition agreement (a) explicitly authorized, though not precisely governed, by the Migratory Bird Conservation Act and (b) to which the United States itself [was] a party.” Id., at 594. Although the present case involves acquisitions under the Stamp Act rather than the Conservation Act, the federal interests at stake are the same. Thus, the choice of applicable law presents a federal question. Although state law may be borrowed if appropriate, “specific aberrant or hostile state rules do not provide appropriate standards for federal law.” Id., at 596. Because the Louisiana statute at issue in Little Lake Misere was “plainly hostile to the interests of the United States,” id., at 597, the Court refused to apply it. In language equally applicable to the present case, the Court said: “To permit state abrogation of the explicit terms of a federal land acquisition would deal a serious blow to the congressional scheme contemplated by the Migratory Bird Conservation Act and indeed all other federal land acquisition programs. These programs are national in scope. They anticipate acute and active bargaining by officials of the United States charged with making the best possible use of limited federal conservation appropriations. Certainty and finality are indispensable in any land transaction, but they are especially critical when, as here, the federal officials carrying out the mandate of Congress irrevocably commit scarce fundsi” Ibid. To the extent that §20.1-02-18.2(2) authorizes landowners to drain after-expanded wetlands contrary to the terms of their easement agreements, we must conclude that it is equally hostile to federal interests and may not be applied to easements acquired under previously given consents. The United States is authorized to incorporate into easement agreements such rules and regulations as the Secretary of the Interior deems necessary for the protection of wildlife, 16 U. S. C. § 715e, and these rules and regulations may include restrictions on land outside the legal description of the easement. See Kleppe v. New Mexico, 426 U. S. 529, 546 (1976); Camfield v. United States, 167 U. S. 518, 525-526 (1897). To respond to the inherently fluctuating nature of wetlands, the Secretary has chosen to negotiate easement agreements imposing restrictions on after-expanded wetlands as well as those described in the easement itself. As long as North Dakota landowners are willing to negotiate such agreements, the agreements may not be abrogated by state law. 3. N. D. Cent. Code §17-05-02.1 (1978). Much the same analysis persuades us that this statute, which limits nonap-purtenant easements to a maximum term of 99 years, may not be applied to wetlands easements acquired by the United States under consents previously given pursuant to the Stamp Act. The United States’ commitment to the protection of migratory birds will not cease after 99 years have passed. This commitment has been incorporated into law for over 80 years and has been expressed in treaties since 1916, and the need to preserve migratory bird habitats is now no less than before. To ensure that essential habitats will remain protected, the United States has adopted the practice of acquiring permanent easements whenever possible. Permanent easements are authorized by the gubernatorial consents given from 1961 to 1977, and the United States apparently has had no difficulty in negotiating permanent easements with North Dakota landowners. The automatic termination of federal wetlands easements after 99 years would make impossible the “[certainty and finality” that we have regarded as “critical when . . . federal officials carrying out the mandate of Congress irrevocably commit scarce funds.” United States v. Little Lake Misere Land Co., 412 U. S., at 597. We conclude that § 47-05-02.1 is hostile to federal interests and may not be applied. See 412 U. S., at 596; United States v. Albrecht, 496 F. 2d 906, 911 (CA8 1974). HH I — I HH The District Court and the Court of Appeals held that gubernatorial consent was not required prior to federal acquisition of wetlands easements, and that North Dakota’s 1977 legislation could not be applied to any easements acquired under the Stamp Act. We conclude that although gubernatorial consent is required, it has been given here and cannot be revoked. We also conclude that North Dakota’s 1977 legislation cannot restrict the United States’ ability to acquire easements pursuant to consent previously given. To this extent, we affirm the judgment below. It is so ordered. Section 5 was amended by § 5(a) of the Fish and Wildlife Improvements Act of 1978, Pub. L. 95-616, 92 Stat. 3113, with minor changes from the language quoted in the text. The sense of that language, however, was not altered. See 16 U. S. C. § 715d (1976 ed., Supp. V). The authorization loan limit was increased to $200 million by §2(a) of the Wetlands Loan Extension Act of 1976, 90 Stat. 189, 16 U. S. C. § 715k-3. Section 3 reads in relevant part: “Provided further, That no land shall be acquired with moneys from the migratory bird conservation fund unless the acquisition thereof has been approved by the Governor of the State or appropriate State agency.” 75 Stat. 813, 16 U. S. C. §715k-5. This proviso is in addition to the Conservation Act’s requirement, in its § 7, that the State “shall have consented by law” to the acquisition of land for inviolate bird sanctuaries. 45 Stat. 1223, 16 U. S. C. § 715f. The latter requires consent by the legislature; the former requires consent by the Governor or the “appropriate State agency.” When the glaciers retreated from the northern Great Plains at the end of the last ice age, they left in their wake thousands of shallow depressions. These depressions, known as prairie potholes, provide excellent breeding grounds for migratory ducks. In United States v. Albrecht, 496 F. 2d 906 (CA8 1974), the Court of Appeals described the characteristics of a prairie pothole region and its advantages for breeding ducks: “Each square mile of such land is dotted by approximately 70 to 80 potholes of three to four feet deep. . . . [On certain types of land] the potholes usually retain water through July or August, and therefore, provide an excellent environment for the production of aquatic invertebrates and aquatic plants, the basic foods for breeding adult ducks and their offspring. Essential to the maintenance of the land as a waterfowl production area is the availability of shallow water in these numerous potholes during the usually drier summer months. On the other hand, too much water, as a lake area with its deeper waters, does not provide the proper habitat for many species of duck to rear their young. Also, for the protection of their young, many species of duck prefer to be isolated in a small pothole, rather than to share a large lake.” Id., at 908-909. See generally Kantrud & Stewart, Use of Natural Basin Wetlands By Breeding Waterfowl in North Dakota, 41 J. Wildlife Management 243 (1977); Prairie Potholes: Draining the Duck Hatchery, National Wildlife (Oct.-Nov. 1981) p. 6. The consents were in written form prepared by the Fish and Wildlife Service. Each covered a separate county, and read substantially as follows: “I,-, Governor of the State of North Dakota, in accordance with the provisions of the Act of October 4, 1961, 75 Stat. 813, hereby grant approval to the acquisition of easements by the United States of America of any lands within the county of-, State of North Dakota, for Waterfowl Production Area purposes not to exceed- — acres of wetlands.” App. 3, 55. Some of the forms were signed by the North Dakota Game and Fish Commissioner as the authorized representative of the Governor. Id., at 4-5, 47. The typical easement agreement contained a legal description of a parcel of land, and imposed restrictions on all wetland areas within the parcel “now existing or subject to recurrence through natural or man-made causes,” including “any enlargements of said wetland areas resulting from normal or abnormal increased water.” The easements prohibit the owner from draining, filling, leveling or burning the wetlands, but permit farming and other activities whenever the wetlands “are dry of natural causes.” Id., at 14-16; see App. to Juris. Statement 6a-7a. North Dakota Cent. Code §20.1-02-18.1, as amended (Supp. 1981), provides: “Federal wildlife area acquisitions — Submission to county commissioners, opportunity for public comment, and impact analysis required. The governor, the game and fish commissioner, or their designees, responsible under federal law for final approval of land, wetland, and water acquisitions by the United States department of the interior, its bureaus or agencies, for waterfowl production areas, wildlife refuges or other wildlife or waterfowl purposes, shall submit the proposed acquisitions to the board of county commissioners of the county or counties in which the land, wetland, and water areas are located for the board’s recommendations. An affirmative recommendation by the board must be obtained prior to final approval of all such proposed acquisitions, whether by transfer of title, lease, easement, or servitude. “The board of county commissioners of the county affected, or a designee or designees of the board, shall, within twenty-one days of receipt of an acquisition proposal, physically inspect the proposed acquisition areas. The board shall give public notice of the date, hour, and place where the public may comment on the proposed acquisitions. The notice shall be published once each week for two successive weeks in the official newspaper of the county or counties in which the land and water areas are located. The notice shall set forth the substance of the proposed action, and shall include a legal description of the proposed acquisitions. The board of county commissioners shall make its recommendations within sixty days after receipt of an acquisition proposal. “A detailed impact analysis from the federal agency involved shall be included with the acquisition proposal for board of county commissioner consideration in making recommendations. Such analysis shall include, but shall not be limited to, the recreational and wildlife impacts. In addition, the county agent of the affected county or counties shall prepare an impact analysis for board of county commissioner consideration which shall include the fiscal, social, and agricultural impacts of the proposed acquisitions. The department of the interior shall reimburse the county or counties for any expenses incurred by the county agent in preparing the analysis. The analyses shall also be forwarded to the state federal aid coordinator office which shall furnish copies to all interested state agencies and political subdivisions, which agencies and political subdivisions shall have thirty days to review the analyses and return their comments to the state federal aid coordinator office. Upon expiration of the thirty-day period, all comments received by the state federal aid coordinator office shall be forwarded to the federal agency involved and to the state official or agency responsible for final acquisition approval. The federal agency may, after consideration of such comments, file a final impact analysis with the governor, the board of county commissioners, and any other state official or agency responsible for final acquisition approval.” North Dakota Cent. Code §20.1-02-18.2, as amended (Supp. 1981), provides: “Negotiation of leases, easements, and servitudes for wildlife production purposes. A landowner may negotiate the terms of a lease, easement, or servitude for land, wetland, or water areas sought to be acquired by the United States department of the interior, its bureaus or agencies, with moneys from the migratory bird conservation fund [16 U. S. C. 718d] for use as waterfowl production areas, wildlife refuges, or for other wildlife purposes. A landowner may: “1. Negotiate the time period of the lease, easement, or servitude being sought. “2. Restrict a lease, easement, or servitude by legal description to the land, wetland, or water areas being sought, and may drain any after- expanded wetland or water area in excess of the legal description in the lease, easement, or servitude. “Failure by the department of the interior, its bureaus or agencies, to agree to and comply with the above provisions shall nullify North Dakota’s consent to the federal Act under section 20.1-02-18.” As originally enacted, §20.1-02-18.2 also provided that any easement would terminate upon death of the landowner or a change in ownership. 1977 N. D. Laws, ch. 204, § 3, p. 463. This provision was repealed by 1981 N. D. Laws, ch. 258, § 1, p. 654. Section 47-05-02.1 provides in relevant part: “Regulations governing easements, servitudes, or nonappurtenant restrictions on the use of real property. — Real property easements, servi-tudes, or any nonappurtenant restrictions on the use of real property, which become binding after July 1,1977, shall be subject to the regulations contained in this section. These regulations shall be deemed a part of any agreement for such interests in real property whether or not printed in a document of agreement. “2. The duration of the easement, servitude, or nonappurtenant restriction on the use of real property shall be specifically set out, and in no case shall the duration of any interest in real property regulated by this section exceed ninety-nine years.” In 1981, while this case was pending in the Court of Appeals, North Dakota added a further provision forbidding any new federal acquisition of land for a migratory bird reservation, and suspending the Governor’s authority to consent to any acquisition from the conservation fund. 1981 N. D. Laws, ch. 258, §2, p. 654, codified as N. D. Cent. Code §20.1-02-18.3 (Supp. 1981). The Court of Appeals held that neither legislative nor gubernatorial consent was required prior to the acquisition of waterfowl production areas, and that even if gubernatorial consent were required, it had been given here and could not be revoked. 650 F. 2d, at 916. The Court of Appeals also concluded that the challenged North Dakota statutes were void “[t]o the extent they encumber the federal statutes which provide for the acquisition of waterfowl habitat.” Id., at 918. Convention for the Protection of Migratory Birds, United States-Great Britain, 39 Stat. 1702, T. S. No. 628 (1916); Convention for the Protection of Migratory Birds and Game Mammals, United States-Mexico, 50 Stat. 1311, T. S. No. 912 (1936); Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, United States-Japan, [1974] 25 U. S. T. 3331, T. I. A. S. No. 7990 (1972); Convention Concerning the Conservation of Migratory Birds and Their Environment, United States-Union of Soviet Socialist Republics, [1976— 1977] 29 U. S. T. 4647, T. I. A. S. No. 9073 (1976). Habitat protection is specifically mandated by the treaties with the Soviet Union, Art. IV, 29 U. S. T., at 4653-4654, and Japan, Art. VI, 25 U. S. T., at 3335. Despite some confusion on this issue in the District Court and the Court of Appeals, see App. to Juris. Statement 11a; 650 F. 2d, at 916, the parties now agree that gubernatorial consent is required. See Brief for United States 16, and n. 11. Section 4 of the Stamp Act, as amended in 1958, permits the acquisition of waterfowl production areas “without regard to the limitations and requirements of the Migratory Bird Conservation Act.” Pub. L. 85-585, § 3, 72 Stat. 487, 16 U. S. C. § 718d(c). The Conservation Act, ch. 257, 45 Stat. 1222, is codified at 16 U. S. C. §§ 715-715k and 715n-715r. The District Court and the Court of Appeals read the gubernatorial-consent requirement — codified at § 715k-5 — as part of the Conservation Act, and concluded that it did not apply to the acquisition of waterfowl production areas. This reading of the statute, we have concluded, is incorrect. The gubernatorial-consent provision was enacted in 1961 as § 3 of the Loan Act. 75 Stat. 813. It has never been a part of the Conservation Act. Although the codifiers of the United States Code chose to place the gubernatorial-consent provision in the midst of the Conservation Act’s provisions, that choice, “made by a codifier without the approval of Congress . . . should be given no weight.” United States v. Welden, 377 U. S. 95, 99, n. 4 (1964). Because the gubernatorial-consent provision is not one of the “requirements of the Migratory Bird Conservation Act,” 16 U. S. C. § 718d(c), it does apply whenever waterfowl production areas are acquired with duck stamp funds. North Dakota advances two preliminary arguments which we find un--persuasive. The State first asserts that the gubernatorial consents given between 1961 and 1977 are invalid, because they do not specify the particular parcels to be acquired. The language of § 715k-5 does not suggest that parcel-by-parcel consent is nécessary, and the legislative history tells us only that § 715k-5 requires consent “as to the nature of the lands and the acreage involved.” 107 Cong. Rec. 17171 (1961) (remarks of Sen. Magnu-son). The county-by-county consents given by Governors Guy and Link satisfied this standard. They specified both the “nature of the lands . . . involved,” i. e., wetlands, and the maximum acreage to be acquired in each county. North Dakota next argues that the gubernatorial consents, if valid, have already been exhausted by acquisitions prior to 1977. This argument stems from the practice of including within each easement agreement the legal description of the entire parcel on which the wetlands are located, rather than merely the wetlands areas to which the easement restrictions, apply. If the entire parcels are counted toward the acreage permitted by the gubernatorial consents, the United States already has acquired nearly 4.8 million acres, far more than the 1.5 million acres authorized. The United States has conceded as much in its answers to North Dakota’s interrogatories. App. 49 (“The total acreage described in the permanent easements ... is 4,788,300 acres . . .”). As the easement agreements make clear, however, the restrictions apply only to wetlands areas and not to the entire parcels. The consents obtained by the United States authorize it to acquire up to 1.5 million “acres of wetlands.” See n. 5, swpra. The fact that the easement agreements include legal descriptions of much larger parcels does not change the acreage of the wetlands over which easements have been acquired. In the District Court and the Court of Appeals, North Dakota took the position that its prior consents had been revoked. See App. 72. At oral argument, North Dakota informed us that although the present Governor has not formally revoked the consents, he intends to engage in that formality if this Court holds that revocation is authorized. Tr. of Oral Arg. 28. Cf. United States v. Unzeuta, 281 U. S. 138, 142-143 (1930) (State may not revoke its consent to exercise of jurisdiction by the United States). Although the question of revoeability did not arise during the Senate debates, the Senate’s brief discussion of the gubernatorial-consent provision suggests that consent, once obtained, was expected to remain effective for as long as necessary. Senator Magnuson commented that he could not “conceive of any acreage of wetlands that it is intended to purchase in the next 3 or 4 years that has not already had the joint approval of all the States and everyone else involved.” 107 Cong. Rec. 17172 (1961). Senator Hruska, a member of the Migratory Bird Conservation Commission, confirmed that when the Commission met to approve land acquisitions, “[tjhere has already been processed before that time the area of agreement between the Federal agencies and the State agencies which makes the approval possible.” Ibid. Senators Magnuson and Hruska each envisioned precisely the sequence of events that has occurred here: the United States would develop a general plan for the acquisition of wetlands, the plan would be submitted to the Governor or appropriate state agency for approval, and, if approval was given, the United States would proceed to acquire wetlands pursuant to that approval — over the course of years, if need be. See United States Dept, of the Interior, Annual Report of Lands Under Control of the U. S. Fish and Wildlife Service (1974-1977) (Table 4, Waterfowl Production Areas); United States Dept, of the Interior, Annual Report of Lands Under Control of the Bureau of Sport Fisheries and Wildlife (1961-1973) (Table 4, Waterfowl Production Areas). See; e. g., H. R. Rep. No. 2182, 85th Cong., 2d Sess., 2 (1958); Hearings on H. R. 12006 before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 85th Cong., 2d Sess., 5 (1958) (statement of Rep. Reuss); id., at 26 (testimony of Ross Leffler, Assistant Secretary for Fish and Wildlife, Dept, of the Interior); id., at 37 (statement of Daniel H. Janzen, Director of Bureau of Sport Fisheries and Wildlife, Dept, of the Interior); id., at 47 (statement of Rep. Metcalf); Hearings on S. 2447 et al. before a Subcommittee of the Senate Committee on Interstate and Foreign Commerce, 85th Cong., 2d Sess., 85 (1958) (comments of Sen. Magnuson). Justice O’Connor finds this legislative history unpersuasive, primarily because the gubernatorial-consent provision was not added until 1961, three years after initial authorization of the acquisition of land for waterfowl production areas. Post, at 322. But as we have explained supra, at 313, the gubernatorial-consent provision was intended merely to formalize the prior practice of obtaining consent prior to the acquisition of any land under the Stamp Act. Compare United States v. Williams, 302 U. S. 46, 50 (1937) (federal statute, requiring parental consent prior to minor’s enlistment, does not confer right to impose conditions on consent), with, e. g., James v. Dravo Contracting Co., 302 U. S. 134, 146-147 (1937) (Article I, §8, cl. 17, of Constitution, requiring state consent prior to assumption of federal jurisdiction over land, does confer right to impose conditions on consent). Because this case concerns only the acquisition of easements under consents already given, we need not decide whether § 20.1-02-18.2(2) could be applied to easements acquired under consents North Dakota may choose to give in the future. See n. 20, supra. United States v. Burnison, 339 U. S. 87 (1950), on which North Dakota relies, is not to the contrary. In Bumison, the Court held that a State’s traditional power to control the testamentary transfer of property included the power to prohibit testamentary gifts to the United States. The Court stated specifically that its holding did not “affect the right of the United States to acquire property by purchase or eminent domain in the face of a prohibitory statute of the state.” Id., at 93, n. 14; see United States v. Fox, 94 U. S. 315, 320 (1877). Although N. D. Cent. Code § 47-05-02.1 (1978) applies to all nonappur-tenant easements, it was apparently enacted in response to dissatisfaction with the United States’ acquisition of permanent easements over wetlands. See Report of the Committee on Agriculture submitted to the North Dakota Legislative Council (Nov. 1976), reprinted at Record 22, 26; App. 39. We need not decide whether future consents could be limited so as to authorize the acquisition of 99-year easements only, or whether §47-05-02.1 could be applied to easements acquired under consents given in the future. See nn. 20 and 21, supra.

Dakota v. United States

Justice O’Connor, with whom Justice Rehnquist joins, concurring in part and dissenting in part. I agree with the Court that gubernatorial consent is required for the acquisition of wetlands easements, that the required consent was given in this case, and that North Dakota may not simply revoke its consent at will. I disagree with the Court, however, in its holding that the United States acquired its easements pursuant to the consents within a reasonable time as a matter of law. I would remand this case in order to allow the lower courts an opportunity to determine whether the Federal Government delayed unreasonably in making its acquisitions. Because I would remand, and because I believe that the Court decides another issue that is not properly before the Court, I dissent in part. First, in its brief, the Government concedes that “Congress must have assumed that the Secretary would be able to rely on the continued effectiveness — at least for a reasonable period of time — of gubernatorial consents. ” Brief for United States 26 (emphasis added). The Government’s concession on this point reflects the position, correct in my view, that Congress did not intend that gubernatorial consents, once given, could never be withdrawn even if the United States failed to acquire its easements within a reasonable time. Although there is virtually no legislative history concerning the consent provision in 16 U. S. C. § 715k-5, the provision represents an attempt to give to the States a meaningful right to control to some extent federal acquisition of easements in light of the unquestioned federal authority to take the land through condemnation procedures. See Paul v. United States, 371 U. S. 245, 264 (1963). Congress surely did not intend to bind the States forever by their consents if the Federal Government failed to act on them. Permanent irrevocable consents would frustrate legitimate state land use planning just as consents revocable at will would frustrate federal protection of migratory wildfowl. Therefore, I agree with the position taken by the United States that the State’s consent is irrevocable for a reasonable time after the consent is given. The Court finds it unnecessary to decide whether the consent is revocable after the lapse of a reasonable time because it concludes that a reasonable time has not elapsed in this case. The Court bases this factual judgment primarily on statements in the legislative history indicating that Congress anticipated that the wetlands “acquisition program would take a minimum of 20 to 25 years to complete.” Ante, at 315 (footnote omitted). Although the Court correctly points out that such statements appear in the House Report and various hearings concerning the 1958 amendment to the Stamp Act, those statements cannot be used to show that, in adding the gubernatorial-consent provision in 1961, Congress intended consent to be irrevocable for the period necessary to complete all previously described acquisition objectives regardless of its duration. The Court merely assumes that the estimated time period for completing the acquisition program generally is a “reasonable time” for purposes of determining whether the Government has acted reasonably in exercising its consents in this particular case. There is nothing in the legislative history of either the 1958 amendment to the Stamp Act, or the 1961 addition of the consent provision, to support the Court’s conclusion on this point. The Court acknowledges that the acquisition program involved in this case had been underway for 16 years by the time the Government ceased its acquisitions as a result of the state legislation that is in issue. This time period is not, in my view, “reasonable” as a matter of law, and I would remand the issue in order to give the courts below an opportunity to decide whether the Federal Government acted reasonably in this case. Second, for the first time in this Court, North Dakota argues that even if it may not revoke its consent to easement acquisition, the United States has already acquired easements over acreage in excess of the consents that were given. The Court resolves this dispute by holding that North Dakota’s argument fails because “the easement agreements make clear . . . [that] the restrictions apply only to wetlands areas not to the entire parcels. . . . The fact that the easement agreements include legal descriptions of much larger parcels does not change the acreage of the wetlands over which easements have been acquired.” Ante, at 311-312, n. 14. This issue clearly was not raised below. In its complaint filed in the District Court for North Dakota, the United States stated that its total easement acreage to date in North Dakota was 764,522 acres. App. 31. This claim was repeated in answers to North Dakota’s interrogatories. Id., at 49. North Dakota never challenged that claim, and stipulated that the District Court had been provided with all evidentiary material necessary to resolve the cross-motions for summary judgment concerning the necessity for, and revocability of, gubernatorial consent. Id., at 71-73. Indeed, North Dakota stipulated that its position was that the consent had been revoked, and that the particular gubernatorial consents were themselves legally inadequate for easement acquisition. Id., at 71-72. Therefore, the issue concerning exhaustion of consent was not raised below, and is not properly before the Court in this case. Because I would remand to enable the lower courts to determine whether the United States acted reasonably in obtaining its wetlands easements, and because the Court decides an issue that is not, in my view, properly before the Court, I am unable to join the Court’s opinion in its entirety. See also Brief for United States 14, 27; Tr. of Oral Arg. 35, 41. The only explicit reference to the consent provision is made by Senator Magnuson, who stated that there could be no acquisition “unless the Federal Government and the State involved had a complete agreement... as to the nature of the lands and the acreage involved.” 107 Cong. Rec. 17171 (1961).

Cape May Greene, Inc. v. Warren

OPINION OF THE COURT WEIS, Circuit Judge. Finding that circumstances warranted an exception to its general prohibition against floodplain development, New Jersey granted permission for construction of dwelling units in a seaside community. The federal Environmental Protection Agency later agreed to grant funds for the construction of an indispensable sewage treatment plant in the area, but only on the condition that no hookups be permitted to the proposed residences. In view of the record in this case and because Congress has encouraged state and local regulation of coastal areas, we conclude that EPA acted arbitrarily in imposing the hookup restriction in defiance of the state and local action. Accordingly, we vacate the judgment entered in favor of EPA and remand for further proceedings. Plaintiff Cape May Greene, Inc. sought injunctive and declaratory relief against the restrictive condition, but the district court denied relief and entered summary judgment against plaintiff. Other claims against non-federal defendants and cross-claims were ultimately terminated, and plaintiff appeals. The plaintiff, a land developer, owns most of two parcels of land, designated as tracts A and B, in Cape May City, New Jersey. The City is part of the Cape May region located at the southern tip of New Jersey. The Atlantic Ocean borders the region on the east and south, the Delaware Bay lies to the west, and to the north the mainland is cut off by a canal and the Cape May Harbor. The region encompasses some 5700 acres. More than 3,600 acres, or 64% of the area, consist of wildlife habitats, wetlands, public open space, dunes, and beaches, all of which are closed to development by state and local regulation. Thirty-one percent of the area has been developed and provided with sewers. The controversy in this case centers on plans to install sewers in a part of the remaining 5%, or 297 acres. Tracts A and B constitute 196 acres, or 3% of the region. Tract A consists of 47 acres surrounded by existing structures and paved streets; 5.7 acres are already developed. Tract B contains 149 acres and is bounded on the west and north by housing and on the east by a United States Coast Guard Receiving Center. Fifteen acres of that parcel are developed. In 1979, the plaintiff developer applied to the New Jersey Department of Environmental Protection for a permit to construct 244 residential units in tract A. The state agency reviewed the developer’s proposal in accordance with the Coastal Area Facility Review Act, N.J.Stat.Ann. §§ 13:19-1 to -21 (West 1979 & Supp.1982). That Act, which is the New Jersey management plan for regulation of the coastal area, had been approved by the federal government pursuant to the Coastal Zone Management Act of 1972, 16 U.S.C. §§ 1451-1464 (1976 & Supp. IV 1980). The New Jersey agency reviewed such factors as flood hazard possibilities, air and water quality, traffic volume, road access, and the effect on environmentally sensitive areas. In 1980, a permit was approved, conditioned on the availability of sewage hookups to the housing units. As the New Jersey agency was aware, the developer expected that a proposed regional sewage disposal plant would service the new housing. The treatment plant had been under consideration for some years, but the federal EPA had indicated it might restrict sewer connections to the plant. The existing waste water treatment plant is owned and operated by the City of Cape May. Constructed in 1958, it has a capacity of 3.0 m.g.d. The plant is unsatisfactory because of the high level of pollutants it discharges into Delaware Bay. The need to improve the plant’s efficiency became apparent in the summer of 1975 when the beaches in this resort area had to be closed because of pollution. In the following year, the New Jersey Department of Environmental Protection imposed a ban on any further hookups to the plant. The ban was lifted in November 1978 after plans to rehabilitate the facility were undertaken. The Cape May County Municipal Utilities Authority proposed to construct a new, more efficient and slightly larger (3.2 m.g.d.) system on the site of the existing plant and applied to EPA for a matching funds grant. EPA is authorized to grant funds for the construction of sewage facilities under the Water Pollution Control (Clean Water) Act, 33 U.S.C. §§ 1251-1376 (1976 & Supp. IV 1980). In October 1978, EPA informed the Authority that it would fund a disposal plant whose capacity could service the existing population and projected growth in the area, but not any development within the floodplain or environmentally sensitive areas of the Cape May region. To that end, EPA proposed a plant capacity of 3.0 m.g.d. The Authority accepted the reduction in capacity, and in January 1979, EPA determined that no significant detrimental environmental impacts would result from the proposed facility. Based on that determination, EPA preliminarily decided not to prepare an environmental impact statement. The agency invited comments from the public and interested entities. Included in the EPA announcement was a statement that the agency had recommended changes that reduced the capacity of the system to service flood-hazard areas. The notice continued, “However, we cannot do local land use planning for the municipalities in the region and some treatment capacity could very well be used up by development in floodplains and other sensitive areas unless local measures are adopted.” Several environmental groups protested the EPA action and complained that the agency was not doing enough to prevent development in environmentally sensitive and floodplain areas. In response to one of these communications, the EPA Regional Director wrote: “We continue to believe that it is the primary function of local government to provide the ‘fined [sic] tuned’ growth control through land use measures. A sewer hookup ban as a condition to the grant would, we believe, be neither appropriate nor effective in providing the kind of ‘guarantee’ against future development in environmentally sensitive areas that you seek.” In a reply to another environmental group, an EPA official wrote: “We fully support your view that controls over land uses in environmentally sensitive or critical areas should be required, but we feel that this should be done by the affected municipalities. The EPA is not the empowered agency with jurisdiction to change, enforce or control local land use.” Despite these statements, EPA changed its position and told the Authority, in June 1979, that the grant would be conditioned on a ban against sewer hookups to designated lots in the floodplain and environmentally critical areas. In September 1979, EPA advised that it would be receptive to fully justifiable exceptions to the policy and would accept redevelopment of lots that previously had structures. A number of the municipalities to be serviced by the new facility adopted resolutions protesting the EPA action, arguing that land use planning and controls were matters reserved for determination by state and local governments. They pointed out that the critical areas had already been removed from development by ordinances and the municipalities were in compliance with all provisions of the federal flood insurance program. After extensive consultations with the affected municipalities, the Authority submitted an amendment to the disposal plant plan in January 1980 and supplemented it in April of that year. In brief, the Authority’s proposal excluded sewer hookups in environmentally sensitive areas, such as beaches, dune complexes, intermittent stream corridors, bogs, and fresh water wetlands. These areas had already been designated by the state coastal management plan as prohibited for development. Although, with the exception of wetlands, the state plan applied only to housing projects consisting of 25 or more units, the Authority’s proposal would extend the ban on hookups to individual lots as well. In addition, the prohibition against hookups would be extended to critical wetland and upland habitat areas, consistent with local plans and the state coastal management program. The net result would be that any new construction in the region would be forced to take place within or adjacent to areas that were previously developed and already had available the infrastructure for transmission of waste water to the disposal plant. With respect to tracts A and B, the Authority pointed out that the value of the storm, sanitary and water service infrastructure in place was approximately $1,423,000. Moreover, both of these tracts had been identified as development areas in the Cape May County comprehensive plan and the state’s Coastal Zone Management Plan. Summarizing, the Authority stated that “[a]ll recognized environmentally sensitive areas are excluded from future sewer connections under this proposal and any new structures which would be allowed within the floodprone areas must, by existing ordinances, comply with FEMA [Federal Emergency Management Agency] safety regulations.” In response, EPA agreed to allow hookups only from tracts that were less than 3.4 acres in size, were surrounded by existing structures, and had all infrastructure for municipal services in place. Such development was characterized as “fill in.” Since most of tracts A and B did not meet these criteria, the EPA action was in effect a denial of the Authority’s proposal. Yielding to the necessity of having the long-delayed project get under way, the Authority reluctantly, and under protest, accepted the EPA demands. The agency then issued its approval for a grant of $529,087 toward the total cost of $705,499. In a published report of its Cape May environmental review, EPA stated it would take steps to designate the critical and floodplain areas as unsuitable for septic tanks. It also stated, “EPA will deny permits for any package treatment plant that is proposed to serve development that is delineated as ‘nonsewerable’ in the approved 201 facilities plan.” Thus, the agency announced its intention to ban, not only sewer hookups, but any other means of waste water disposal as well. The developer then asked the district court to declare the restrictive condition void as beyond EPA’s authority, and to prohibit the Authority from agreeing to the grant condition. The district court, however, granted summary judgment in favor of EPA, finding the grant condition to be reasonable and in accordance with the agency’s authority. The court read Executive Order 11,988, 42 Fed.Reg. 26951, reprinted in 42 U.S.C. § 4321 note at 820 (Supp. IV 1980), as exhorting EPA to minimize floodplain development as far as possible and to supply the necessary authorization for the grant condition. The plaintiff also contended that allowing sewer connections to tracts of 3.4 acres or less, while denying them to larger areas, was an equal protection violation. The court found that the agency’s action met the rational basis test. In addition, the court held that Tucker Act jurisdiction on the plaintiff’s taking of property claim rested with the Court of Claims. See 28 U.S.C. § 1346(a)(2) (Supp. IV 1980). Finally, a Tenth Amendment claim was dismissed since there was no regulation of “states as states.” I. Preliminarily we must address a jurisdictional issue, the finality of the district court’s judgment. The district court entered summary judgment against the plaintiff and in favor of the EPA as well as several other defendants on December 3, 1981. Similar judgments were granted to other defendants in February and April 1982. Finally, on May 11, 1982, summary judgment was granted in favor of the last remaining defendant, the New Jersey State Department of Environmental Protection. Thus, as of that date, summary judgment had been entered against the plaintiff on all of its claims and in favor of all the defendants. Plaintiff filed a notice of appeal from the summary judgments against it on May 19, 1982. There remained on the record, however, a cross-claim filed by the Authority against the federal defendants, and they moved to dismiss the appeal. On July 22, 1982, a stipulation was filed in the district court by all parties dismissing the cross-claim without prejudice. The federal defendants then filed an amended jurisdictional statement in their brief on July 29, 1982, asserting, “This court has jurisdiction over these appeals pursuant to 28 U.S.C. § 1291. The orders of the district court dispose of all claims by all parties.” At the time the plaintiff filed its notice of appeal, the only aspect of the litigation remaining open was the cross-claim between two of the defendants on a collateral matter. Strictly speaking, however, at the time the notice was filed, the judgment of the district court was not final. See Fed.R. Civ.P. 54(b). It did not become final until after the parties had filed their briefs in this court, but before we had taken any action on the merits. A similar jurisdictional issue was presented in Pireno v. New York Chiropractic Ass’n., 650 F.2d 387 (2d Cir.1981), aff’d, Union Labor Life Insurance Co. v. Pireno, - U.S. -, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982), where an appeal was filed after judgment had been entered for two of three defendants, but before judgment was entered in favor of the third. At the time of disposition in the court of appeals, the action of the district court had become final. The court of appeals treated the premature notice as being effective on the date the judgment was entered in favor of the last remaining defendant and took jurisdiction of the appeal. The same result was reached in Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.1973), a case with similar facts. There the court cited the admonition of Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 310, 13 L.Ed.2d 199 (1949), that “practical, not technical considerations are to govern the application of principles of finality.” But see U.S. v. Taylor, 632 F.2d 530 (5th Cir.1980). In Richerson v. Jones, 551 F.2d 918, 922 (3d Cir.1977), we said that “a premature appeal taken from an order which is not final but which is followed by an order that is final may be regarded as an appeal from the final order in the absence of the showing of prejudice to the other party.” (emphasis in original) See also Hodge v. Hodge, 507 F.2d 87, 89 (3d Cir.1975); Eason v. Dickson, 390 F.2d 585 (9th Cir.), cert. denied, 392 U.S. 914, 88 S.Ct. 2076, 20 L.Ed.2d 1373 (1968). In Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981), and Tilden Financial Corp. v. Palo Tire Service, Inc., 596 F.2d 604 (3d Cir.1979), we held that Federal Rule of Civil Procedure 54(b) certification filed after a notice of appeal had been docketed was adequate to confer appellate jurisdiction. This body of case law, therefore, supports the proposition that we have jurisdiction to consider the appeal. However, there remains for consideration the question of whether Griggs v. Provident Consumer Discount Co., - U.S. -, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) requires a contrary result. We conclude it does not. In Griggs, the appellant filed a notice of appeal before the disposition of a post-trial motion under Fed.R.Civ.P. 59. The Supreme Court held there was no appellate jurisdiction because under Fed.R.App.P. 4(a)(4), as amended in 1979, the “notice of appeal was not merely defective; it was a nullity,” and hence it was as if “no notice of appeal were filed at all.” Id. at -, 103 S.Ct. at 403. Rule 4(a)(4) explicitly cites the instances in which a premature notice of appeal “self-destructs” as those in which motions have been filed in the district court under Fed.R. Civ.P. 50(b), 52(b) and 59. See 9 J. Moore, B. Ward & J. Lucas, Moore’s Federal Practice § 204.12[1] at 4-65 and n. 17 (2d ed. 1982). That situation is not present here. The 1979 amendments to Rule 4(a)(2) expressly give effect to a premature notice of appeal taken after the announcement of a decision, but before entry of judgment — the result we reached four years earlier in Hodge v. Hodge. The Advisory Committee’s notes accompanying the 1979 amendments state that the new Rule 4(a)(2) is intended to “extend to civil cases the provisions of Rule 4(b), dealing with criminal cases, designed to avoid the loss of the right to appeal by filing the notice of appeal prematurely. Despite the absence of such a provision in Rule 4(a), the courts of appeal quite generally have held premature appeals effective, [citations omitted] The proposed amended rule would recognize this practice, but make an exception in cases in which a post trial motion has destroyed the finality of the judgment. See Note to Rule 4(a)(4) below.” Thus, the Rules contemplate that the prohibition against giving effect to premature notices of appeal shall be confined to the specific instances cited in Rule 4(a)(4). Only that exception was ruled upon by the Supreme Court in Griggs — not the situation presented here. Accordingly, we conclude that Griggs does not apply to the facts at hand and we have before us an appealable order. II. We turn to the merits of the appeal. The developer contends that EPA’s actions are inconsistent with the Coastal Zone Management Act of 1972, 16 U.S.C. §§ 1451-1464 (1976 & Supp. IV 1980), and the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001-4127 (1976 & Supp. IV 1980). Moreover, EPA is said to have exceeded its authority under both the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347 (1976 & Supp. III 1980), and Executive Order 11,988. The developer concludes by arguing that EPA did not correctly appraise the topography of the land in determining that tracts A and B would serve as water storage and wave dissipation areas in the event of flooding. EPA asserts that the grant condition was reasonable and that its authority extends to deterrence of development in floodplains. It argues that its action is within the scope of Executive Order 11,988, and a federal environmental standard more demanding than one adopted by a state in its management plan may be enforced. The parties’ arguments are wide ranging, and it is helpful to narrow the issues to those presented in this case. There is no dispute about environmentally sensitive sites such as sand dunes, bogs, marshes, wetlands, or wildlife habitats. All areas of this description in the Cape May region are already protected by the local and state land use plans, and no objection is raised to incorporating sewer restrictions for these places into the grant conditions. The controversy is limited to the restriction as applied to floodplain locations whose sole function is said to be storage of flood waters and wave energy dissipation. No plant, animal or marine life, or other ecological considerations, are advanced as additional values which must be considered with respect to tracts A and B. In addition, the need to improve the efficiency of the existing sewage disposal plant has existed for years and that circumstance is unrelated to the floodplain. The current pollution problem must be alleviated, even apart from whether development takes place in the parcels at issue. Narrowing the matter even more are the facts that state and local plans have previously found the disputed area suitable for development, and that sewers and water lines are adjacent to the tracts and available for service. Further, local building restrictions mandate compliance with federal flood protection insurance standards. In short, the local and state governments would allow some regulated development in tracts A and B. EPA would allow none because its prohibition against sewer hookups is as effective a ban against residential building as can be devised, particularly when considered in conjunction with its announced policy that no septic tanks or package treatment systems will be allowed in the area. EPA does not contend that the resulting land use control is simply an unavoidable by-product of the grant condition. Rather, it has openly stated that its aim is to prohibit housing in the floodplain. Nor does EPA argue that the restriction is needed to insure the efficiency of the sewage plant. Thus, the agency has reversed its earlier view that land use controls must come from the state and local governments, and has asserted authority that it previously disclaimed. It is also clear that EPA is using its power to regulate grants under the Clean Water Act to accomplish matters not included in that statute. Although it also cites the National Environmental Policy Act, the agency relies primarily on the Executive Order to support its action. Essentially, the conflict here centers on federal agency action not explicitly required by statute and contrary to state and local legislation in a field where congressional intervention has been hesitant and tentative. Land use planning has traditionally been considered a matter of local concern and Congress has not been hospitable to demands that it preempt the field. See Biderman v. Morton, 497 F.2d 1141, 1144 (2d Cir.1974). (In enacting the Fire Island National Seashore Act, 16 U.S.C. § 459e (1976 & Supp. V 1981), “Congress carefully avoided interfering with the power of the municipalities on the Seashore to enact zoning ordinances or grant zoning variances.”) In 1972, Congress did tentatively touch a toe in the water when the Coastal Zone Management Act was passed. Although the statute is designed to incorporate national environmental policies into land use decisions, the approach is one of encouragement, rather than mandate. The legislative history of the Coastal Zone Management Act is emphatic in stating this guideline: “[The Act] has as its main purpose the encouragement and assistance of States in preparing and implementing management programs to preserve, protect, develop and whenever possible restore the resources of the coastal zone of the United States. * * * There is no attempt to diminish state authority through federal preemption. The intent of this legislation is to enhance state authority by encouraging and assisting the states to assume planning and regulatory powers over their coastal zones.” Sen.Rep. No. 753, 92nd Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad.News 4776. State participation in the program is voluntary. Funding is offered for the preparation and implementation of state plans which meet federal approval. These plans must incorporate designated policy interests, but are administered by the states and it is they who make the development and local use decisions. New Jersey’s plan was submitted to and approved by the federal government. See 45 Fed.Reg. 71640 (Oct. 29, 1980); 43 Fed. Reg. 51829 (Nov. 7,1978). The state, therefore, has accepted the congressional invitation to regulate coastal areas with due regard for national policies. The management plan, as defined by the statute, is to set forth “objectives, policies, and standards to guide public and private uses of lands and waters in the coastal zone.” 16 U.S.C. § 1453(g). The Act provides that it shall not supersede, modify or repeal existing laws, id. § 1456(e)(2), but also states that “[e]ach federal agency conducting or supporting activities directly affecting the coastal zone shall conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs.” Id. § 1456(c)(1). The role assigned to EPA by the Clean Water Act, 33 U.S.C. §§ 1251-1376, is to reduce the discharge of pollutants into the nation’s waterways and coastal areas. In carrying out that task, EPA is authorized to grant funds for the construction of sewage treatment plants. In addition to this direct and primary obligation, EPA asserts a secondary or indirect role, along with other federal agencies, in the protection of the environment under the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347, and Executive Order 11,988. The purpose of the National Environmental Policy Act is to “provid[e] a statement of national environmental goals, policies, and procedures,” and to impose on federal agencies a responsibility to consider the consequences of their actions on the environment. Sen.Rep. No. 296, 91st Cong., 1st Sess. 14. All agencies of the federal government are required to “identify and develop methods and procedures ... which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations.” 42 U.S.C. § 4332(2)(B) (emphasis added). The Act is not a mandate to pursue environmental policies to the exclusion of all others, but is rather a congressional “reordering of priorities so that environmental costs and benefits will assume their proper place along with other considerations.” Calvert Cliffs’ Coordinating Committee, Inc. v. U.S. Atomic Energy Commission, 449 F.2d 1109, 1112 (D.C.Cir.1971). An agency need not, “in selecting a course of action, ... elevate environmental concerns over other appropriate considerations.” Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1980). In short, the National Environmental Policy Act requires a balancing between environmental costs and economic and technical benefits. Calvert Cliffs’ Coordinating Committee, Inc. v. U.S. Atomic Energy Commission, 449 F.2d at 1113. See also Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 298 (8th Cir.1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973). The National Environmental Policy Act does not expand the jurisdiction of an agency beyond that set forth in its organic statute, see Gage v. Atomic Energy Commission, 479 F.2d 1214 (D.C.Cir.1973); Kitchen v. Federal Communications Commission, 464 F.2d 801 (D.C.Cir.1972), and the Supreme Court has characterized “its mandate to the agencies [as] essentially procedural.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). “Even the most enthusiastic commentators of the Act agree that NEPA does not confer unlimited power on the agencies, does not delegate vast areas of congressional authority, and does not initiate a free-for-all among agencies for new programs and domains.” F.R. Anderson, Jr., “The National Environmental Policy Act” in Federal Environmental Law 291 (Environmental Institute, E. Dolgin & T. Guilbert eds., West Publishing Co. 1974). Thus, the National Environmental Policy Act provides little, if any, support for an agency taking substantive action beyond that set forth in its enabling act. EPA’s reliance on the National Environmental Policy Act is general. Because it has authority under the Clean Water Act to condition grants and NEPA mandates a consideration of environmental effects, EPA argues that it can condition funding for sewage plants on terms designed to avert environmental consequences that pose risks to human health and safety. The agency does not contend, indeed it could not in light of the statute’s “essentially procedural” nature, that the Act dictates any particular substantive policy authorizing EPA to impose land use controls or ban floodplain development. The other ground on which EPA relies is Executive Order 11,988, issued on May 25, 1977, in part “to avoid the direct or indirect support of floodplain development whenever there is a practicable alternative.” 42 Fed.Reg. 26951. The order was based on the National Environmental Policy Act, the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001-4127, and the Flood Disaster Protection Act of 1973, Pub.L. 95-128, 91 Stat. 1144, 1145, codified at 42 U.S.C. §§ 4003, 4106 (Supp. IY 1980). The order was prompted to some extent by the unsatisfactory federal experience with losses under the Flood Insurance Programs. In addition, federal agencies had not properly observed flood protection precautions for their own installations, despite the fact that these measures had been required for state and nongovernmental structures. Executive Order 11,988 was designed to apply to federal facilities, as well as those constructed for other entities through the use of federal funds. Essentially, the Order requires federal agencies to avoid taking action in a floodplain wherever there is a practicable alternative and to minimize the harm to floodplains that might be caused by any agency action. Two aspects of this case touch on floodplain policy. The sewage plant itself is to be located in the floodplain for reasons of economy. The existing plant is there and some of its structures are to be integrated into the new facility. Largely for that reason, EPA concluded that other sites would not be practical alternatives and decided that an exception to its ban on action within the floodplain was appropriate. The second aspect is only peripheral to the plant itself and that is the prohibition on hookups to the proposed residences within the floodplain. EPA’s ban was not directed at the operator of the sewage plant or its appurtenances, but rather to customers who would be serviced by the plant— people who are not directly subject to EPA authority. The agency persisted in its position, even though the state plan required developers to comply with federal flood insurance protection standards, thus reducing the government’s loss exposure, one of the principal objects of the Executive Order. Not satisfied with the state’s limitations, however, EPA went further and adopted a zero growth approach, the ultimate in minimization. Congress has never taken such a drastic step in regulating overall floodplain development. When Congress did act with respect to specific regions, the coastal barrier areas, it made its position absolutely clear. We do not meet the issue in this case of whether EPA lacked all authority to take the action it did, but decide the case on a narrower ground. Our brief review of the National Environmental Policy Act and the Executive Order authority relied on by EPA is but a backdrop to our consideration of whether EPA’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (1976). The Supreme Court has stated that “[t]o make this finding the court must consider whether the [agency] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Yet, “the concept of ‘arbitrary and capricious’ review defies generalized application and demands, instead, close attention to the nature of the particular problem faced by the agency.” Natural Resources Defense Council, Inc. v. Securities Exchange Commission, 606 F.2d 1031, 1050 (D.C.Cir.1979). Thus, the scope of judicial review necessarily admits of some flexibility and the stringency of our inquiry will depend on, and often vary according to, the variety of factors presented by a particular case. If an agency’s action is clearly within its statutory authority, then the arbitrary and capricious standard focuses on the factual issues. When, however, there is some doubt about the agency’s compliance with statutory constraints, that factor may throw a somewhat different light on the factual evaluation. As agency action moves toward the gray area at the outer limits of statutory authority, the arbitrary and capricious nature of the action may be more evident. For that reason, we have discussed the agency’s asserted sources of power. Another shadow is cast when agency action, not clearly mandated by the agency’s statute, begins to encroach on congressional policies expressed elsewhere. We conclude that there are a number of factors which demonstrate that the EPA action was arbitrary. The most obvious is the agency’s failure to give sufficient weight to the congressional admonition in the Coastal Zone Management Act that, to the “maximum extent practicable,” federal actions are to be consistent with the state’s management plan. EPA contends that “the consistency requirement of the statute only contemplates that federal agencies will not support activities in the coastal zone which are prohibited by the state’s plan.” (Appellee’s Brief at 31). In essence, EPA is arguing, not that its action is consistent, but that the consistency requirement does not apply to its action since rather than allowing prohibited development, it seeks to prohibit allowed development. EPA also points out that a request by the New Jersey Department of Environmental Protection for mediation of the dispute resulting from EPA’s action was denied by the Secretary of Commerce. See 16 U.S.C. § 1456(h). The Secretary’s decision to deny mediation and EPA’s argument here both rest on a regulation promulgated by the National Oceanic and Atmospheric Administration, the federal agency charged with administering the Coastal Zone Management Act. That regulation reads: “When Federal agency standards are more restrictive than standards or requirements contained in the State’s management program, the Federal agency may continue to apply its stricter standards (e.g., restrict project development or design alternatives notwithstanding permissive management program policies) .... ” 15 C.F.R. § 930.39(d) (1982). The regulation is contained in Subpart C of NOAA’s regulations on “Federal Consistency with Approved Coastal Management Programs.” Subpart C deals with “Consistency for Federal Activities.” The regulations expressly provide that “[t]he term ‘federal activity’ does not include ... the granting of Federal assistance to an applicant agency (see Subpart F of this part).” Id. § 930.31(c). It is Subpart F, which deals with “Consistency for Federal Assistance to State and Local Governments,” that is pertinent to EPA’s action here and that section contains no counterpart to the regulation cited by EPA. Subpart F states that “[njotwithstanding State agency consistency for the proposed project, the Federal agency may deny assistance to the applicant agency.” Id. § 930.96(a). The regulations thus make a distinction between “federal activity” and “federal assistance to a non-federal activity.” When federal assistance is provided for what is' essentially a state or local activity, the congressional preference for having policies initiated at the state level must be respected. Consistency to the maximum extent practicable with the state’s determination is at the heart of the statutory scheme of encouraging, but not directing, state management of the coastal areas. The congressionally mandated consistency requirement becomes even more compelling where, as here, the federal agency seeks to reach beyond the local activity it is funding and impose a federal standard on private activity traditionally subject only to state and local regulation. In short, the inconsistency of EPA’s action with the state’s plan is a factor to be considered in determining whether that action was arbitrary. EPA should not have defied the state’s decision to allow development in the limited areas of the floodplain at issue here. The same national interest in floodplains that EPA purports to uphold has been incorporated into the New Jersey coastal management plan. In compliance with the directive of the Coastal Zone Management Act that “[t]he management program provided for adequate consideration of the national interest involved in the siting of facilities,” 16 U.S.C. § 1455(c)(8), New Jersey adopted a policy that “[i]n general, coastal development is discouraged in flood-hazard areas.” State of New Jersey Coastal Management Program — Bay and Ocean Segment (FEIS), Part II, Chap. 4, Sec. 5.23.2(a) at 161 (effective September, 1978). That policy was based on a review of the Flood Disaster Protection Act, the National Flood Insurance Act and Executive Order 11,988 and a recognition that “the national interest in these areas is to avoid the long and short term adverse impacts associated with the occupancy and modification of floodplains.” Id., Chap. 6 at 190. The developer’s proposal for development of Tract A was approved as an exception to the general policy because all structures would be elevated one foot above the base flood level and would not increase flood damage potential by obstructing flood waters. Thus, the state had not acted irresponsibly. In addition, the state decision to allow development in tract A was based to some extent on a local need to encourage building close to other developed areas, rather than at scattered sites away from the population center or near environmentally sensitive areas. In essence, this was simply “fill in” on a somewhat larger scale than EPA proposed. The difference between the EPA position and the state plan in this respect was one of degree. EPA wished to limit “fill in” to lots of 3.4 acres; the state plan looked to a larger area. A related economic concern of the local municipality was its investment of over a million dollars in roads, sewers and water mains to the area. The plan to use the existing infrastructure is tied'in with the local governments’ aversion to scattered site development in areas where no such facilities had been constructed. Under the EPA restrictions, houses may be built on lots that are at an elevation of more than 10 feet above mean sea level. These lots comprise 7.7 acres in tract A and 22 acres in tract B. The record reveals no efforts by EPA to have serious discussions about the concept of cluster zoning in the area, which would allow development but at the same time reduce the number of structures on land lower than 10 feet above sea level. We note also that EPA’s assertion that the tracts under scrutiny would provide flood water storage and wave energy dissipation have been sharply attacked and have little record support. It is significant also that the compromise plan which the Authority submitted to the EPA provided for a tightening of local control. Although the provisions of the coastal management plan apply to development of 25 or more lots, the Authority proposed to extend the restrictions to individual lots. Thus, the building limitations which had previously been applicable only to large developments would be applied to all. When passing the Coastal Zone Management Act, Congress was cognizant of the valuable contribution local governments can make to responsible management of the coastal areas. “Local government does have continuing authority and responsibility in the coastal zone. * * * Whenever local government has taken the initiative to prepare commercial plans and programs which fulfill the requirements of the Federal and coastal state zone management legislation, such local plans and programs should be allowed to continue to function under the state management program.” Sen.Rep. No. 753, 92nd Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad.News 4776, 4779. The Authority’s plan seems especially appropriate here in that it not only meets the requirements, but extends the reach, of the coastal management legislation. After weighing all the factors, we are persuaded that EPA acted arbitrarily and contrary to law in refusing to accept the Authority’s compromise. ' That proposal was fully in accord with the state’s management plan and the Coastal Zone Management Act. Even if it be conceded that EPA had the power to enforce the land use restriction, a question we do not decide, the agency’s action was in excess of that required under the circumstances. We recognize the legitimate interest in limiting development of floodplains and that, under other circumstances, EPA’s actions might be sustainable. But the circumstances here lead us to hold that the district court erred in entering judgment for the defendants. Accordingly, the judgment of the district court will be vacated and the case will be remanded for further proceedings consistent with this opinion. . “M.g.d.” means “million gallons daily” and refers to the maximum amount of waste water a sewage facility is equipped to treat on a daily basis. Thus, the existing Cape May sewage plant has a capacity of 3 million gallons of waste water a day. . The term “floodplain” refers to the lowland and relatively flat areas of land adjoining inland and coastal waters. See Ex. Order No. 11,988, sec. 6(c), 42 Fed.Reg. 26951 (May 25, 1977), reprinted in 42 U.S.C. § 4321 note at 820 (Supp. IV 1980). Floodplains are basically those lower areas of land that flood waters will flow to first and recede from last. Based on historical studies of prior flooding and statistical analyses of terrain and water flow, the Federal Insurance Administration has prepared Flood Insurance Rate Maps that identify those areas of a community that, on the average, are likely to be flooded once every 100 years (i.e., a one percent chance of flooding in a given year). . The National Environmental Policy Act, 42 U.S.C. §§ 4321-4347 (1976 & Supp. 1980), requires all federal agencies to prepare an environmental impact statement on “major Federal actions significantly affecting the quality of the human environment.” Id. § 4332(2)(C). An agency may dispense with the EIS requirement where the initial environmental assessment reveals no significant effects on the environment. See 40 C.F.R. §§ 1500.4(q), 1508.13 (1981). EPA’s decision to forego an EIS is not at issue in this appeal. . The special condition attached to the grant read, in pertinent part: “In order to implement Executive Order 11988, in conjunction with non environmentally sensitive and non wildlife habitat flood plain, and the Endangered Species Act, the Federal Wildlife Coordination Act, and the National Environmental Policy Act, and regulations thereunder in connection with environmentally sensitive and wildlife habitat areas, the grantee agrees that for a period of 50 years from the date of the FNSI/EA no sewer hook-up or other connections to the sewage treatment system included in the scope of this grant will be allowed or permitted so as to allow the discharge of wastewater from any building, facility, or other construction on any parcel of land within any critical wildlife habitat or environmentally sensitive area, or within the 100 year floodplain, as those areas are delineated in the approved facilities plan amendment....” . Also named as defendants were the regional director of EPA, two section chiefs, the Authority, and the New Jersey Department of Environmental Protection. Although listed as a defendant in the district court and an appellee in this appeal, the Authority agrees with the plaintiffs position. When the case was before the district court for summary judgment, the New Jersey Department of Environmental Resources wrote that it tentatively concluded that EPA had failed to act consistently with the Coastal Zone Management Act. . The Authority’s cross-claim against EPA requested a declaratory judgment determining the effective date of the grant condition. As such, the claim was irrelevant to plaintiffs action challenging EPA’s authority for imposing the condition. . The developer also challenges EPA’s authority to deny permits for septic tanks and package treatment plants. The agency argues that the permit challenge is not ripe for review because no application for a permit has yet been made. In view of our resolution of the case, we do not reach this issue. . Most of parcels A and B lie within the “100-year floodplain,” or “Zone A” as depicted in the Flood Insurance Rate Maps for the Cape May region. Hence, by virtue of the local government’s compliance with flood insurance regulations promulgated by the Federal Emergency Management Administration, any construction of residential structures in the tracts must “have the lowest floor (including basement) elevated to or above the base flood level.” 44 C.F.R. § 60.3(1), (2) (1980). As the base flood level for the Cape May region has been determined to be 10 feet above mean sea level, any structures built in the tracts will have their lowest floor elevated above that level. The permit for development of residential structures in tract A, issued by the New Jersey Department of Environmental Protection, was conditioned on all first habitable floor levels being 11 feet or more above mean sea level. . “[Tjhere is a considerable body of opinion, well represented in Congress, that in most cases land use decisionmaking should be a state and local, not a federal concern.” B.H. Holmes, “Federal Participation in Land Use Decisionmaking at the Water’s Edge — Floodplains and Wetlands,” 13 Nat. Resources Law., 351, 352 (1980-81). In the early 1970’s, Congress rejected numerous attempts to pass a national land use policy act. Although the bills introduced would merely have made federal funds available for the states to implement their own programs, “opponents considered it to be an attempt to indirectly impose federal environmental policies on the local zoning process.” Id. . The 1980 amendments to the Coastal Zone Management Act state that the management plan should include provisions for the protection of floodplains and minimizing the loss of life or property caused by “improper development in flood-prone areas.” 16 U.S.C. §§ 1452(2)(A), (B). The House Committee Report emphasized that this clarification of national policy did not represent a new program requirement. H.R.Rep. No. 1012, 96th Cong., 2d Sess. 16, reprinted in 1980 U.S.Code Cong. & Adm.News 4362, 4364. The approved New Jersey plan has incorporated the protection of floodplain areas as one of its policies for coastal management. . See also Cramton and Berg, “On Leading a Horse to Water: NEPA and the Federal Bureaucracy,” 71 Mich.L.Rev. 511, 521 (1973) (“[NEPA] should not be interpreted as granting to every federal agency a roving commission to defend the environment wherever its writ runs, irrespective of the nature of the subject matter before it.”) . Executive Order 11,988 was preceded by Executive Order 11,296, 31 Fed.Reg. 10663 (1966), which directed federal agencies to “preclude the uneconomic, hazardous or unnecessary use of floodplains” in discharging their responsibilities for federal lands and facilities. Part of the impetus for Executive Order 11,988 was the failure of federal agencies to adequately comply with Executive Order 11,296. See Holmes, supra, 13 Nat. Resources Law. at 364-66. . The Water Resources Council has published guidelines for agency implementation of Executive Order 11,988. See 43 Fed.Reg. 6030 (Feb. 10, 1982). “The guidelines do not intend to prohibit floodplain development in all cases, but rather to create a consistent government policy against such development under most circumstances.” Id. at 6033. The guidelines’ interpretation of Executive Order 11,988 is not inconsistent with the policy in New Jersey’s coastal management plan which generally discourages building in floodplain areas. . The Coastal Barriers Resource Act, Pub.L. No. 97-348, 96 Stat. 1653 (approved Oct. 18, 1982) establishes the coastal barrier resources system, consisting of bay barriers, tombolos, barrier spits and barrier islands within speci- ' fled areas of the Atlantic and Gulf coasts. Further federal assistance, with certain limited exceptions, for development within or access to those areas is banned. The Act also prohibits flood insurance for any new construction or substantial improvements of structures within the system after October 1, 1983. The stated purpose of the legislation is “to minimize the loss of human life, wasteful expenditure of federal revenues, and the damage to fish, wildlife, and other natural resources ... by restricting future federal expenditures and financial assistance which have the effect of encouraging development of coastal barriers.” Id. § 2(b). This statute demonstrates that when Congress intends to adopt a zero growth approach for an area by withdrawing all financial incentive to development, it does so expressly. Congress has never taken such an approach to floodplain development generally. . In City of New Brunswick v. Borough of Milltown, 686 F.2d 120 (3d Cir.1982), petition for cert. filed, 51 U.S.L.W. 3321 (U.S. Oct. 12, 1982) (No. 82-662), we held that EPA has authority to withhold federal grant funds for a sewage plant because one of the municipalities to be serviced by the plant had not adopted a system of user’s chdrges as required by the Clean Water Act. See 33 U.S.C. § 1284(b)(1) (Supp.1982). The EPA action there was based upon an express provision of the Clean Water Act that “ensures that every facility built with federal financial assistance will be economically self-sufficient.” 686 F.2d at 126. Hence, unlike here, EPA’s action was directly related to its primary obligation under the statute. . See Southern S.S. Co. v. N.L.R.B., 316 U.S. 31, 47, 62 S.Ct. 886, 894, 86 L.Ed. 1246 (1942) (“Frequently the entire scope of Congressional purpose calls for careful accommodation of one statutory scheme to another, and it is not too much to demand of an administrative body that it undertake this accommodation without excessive emphasis upon its immediate task.”); Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707 (8th Cir.1979) (agency decision was arbitrary and capricious where based upon regulations that violated congressional policy expressed in another statute); Zabel v. Tabb, 430 F.2d 199, 209 (5th Cir.1970), cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971), (“Governmental agencies in executing a particular statutory responsibility ordinarily are required to take heed of, sometimes effectuate and other times not thwart other valid statutory governmental policies.”) See also, L. Jaffe, Judicial Control of Administrative Action 590 (1965) (“[T]he statute under which an agency operates is not the whole law applicable to its operation. An agency is not an island entire of itself. It is one of many rooms in the magnificent mansion of the law. * * * Thus in the review of administrative actions a court may appeal to criteria of validity which have no specific locus in the [agency’s] statute.”) . In formulating its condition, EPA simply adopted the 100-year floodplain standard and the designations provided by the Flood Insurance Rate Maps for the Cape May region. There was no independent evaluation of the topography of the tracts at issue or findings as to whether the tracts would in fact store flood waters and dissipate wave energy. Thus, the administrative record contains no response to plaintiffs claim that tract A is actually higher than the surrounding land. Nor is there any indication that EPA gave serious consideration to plaintiffs proposal to design the tract B development so as to improve wave energy dissipation capabilities.

Algonquin Gas Transmission, LLC v. Weymouth

KAYATTA, Circuit Judge. Algonquin Gas Transmission, LLC ("Algonquin") seeks to build a natural gas compressor station in Weymouth, Massachusetts as one component of Algonquin's larger effort to improve its natural-gas delivery infrastructure in the northeastern United States. Algonquin has received a certificate of public convenience and necessity ("CPCN") from the Federal Energy Regulatory Commission ("FERC"), but that certificate is conditioned upon the receipt of a consistency determination from the Commonwealth of Massachusetts pursuant to the Coastal Zone Management Act ("CZMA"). To complete its CZMA review, Massachusetts requires Algonquin to furnish a permit from the Massachusetts Department of Environmental Protection ("MassDEP"). But MassDEP will not issue such a permit until the Town of Weymouth approves the project under its local ordinance or a court finds that ordinance preempted as applied to the project. After unsuccessfully seeking Weymouth's approval to begin construction, Algonquin repaired to the U.S. District Court for the District of Massachusetts, from which it obtained a ruling that Weymouth's ordinance, as applied to the project, is indeed preempted. Weymouth now appeals that ruling. For the following reasons, we affirm. I. We briefly survey the regulatory topography, the pertinent facts, and the procedural history in this case. A. The federal Natural Gas Act ("NGA") governs the transportation and sale of natural gas in interstate commerce and the importation and exportation of natural gas in foreign commerce. See 15 U.S.C. § 717(b). The NGA requires a prospective developer to obtain a CPCN from FERC prior to constructing a jurisdictional natural gas pipeline or ancillary facility. Id. § 717f(e). FERC must issue a CPCN if the applicant demonstrates that it "is able and willing ... to conform to the provisions of [the Act] ... and regulations of [FERC]" and the proposed construction is "required by the present or future public convenience and necessity." Id. In issuing a CPCN, FERC also has the authority to impose "reasonable terms and conditions as the public convenience and necessity may require." Id. The other federal statute relevant to this appeal, the CZMA, provides grants of money to states that adopt federally approved coastal-management programs. See generally 16 U.S.C. § 1455. Among other requirements, a coastal-management program must define the "permissible land uses and water uses" and promulgate "[b]road guidelines on priorities of uses" within the state's coastal zones. Id. § 1455(d)(2). The CZMA limits FERC's certificate-granting authority in at least one important way: It prohibits FERC from granting a permit to conduct an activity that will affect "any land or water use or natural resource of the coastal zone" until the state concurs with an applicant's determination that the proposed activity "complies with the enforceable policies of the state's approved [coastal-management program]." Id. § 1456(c)(3)(A). The Massachusetts Office of Coastal Zone Management ("Massachusetts OCZM") administers the Commonwealth's CZMA program. Two local laws also bear on this dispute. The Massachusetts Wetlands Protection Act ("Massachusetts WPA") provides performance standards for construction activities in wetlands areas. See Mass. Gen. Laws ch. 131, § 40. The Act "sets forth minimum standards only, 'leaving local communities free to adopt more stringent controls.' " Lovequist v. Conservation Comm'n of Dennis, 379 Mass. 7, 393 N.E.2d 858, 863 (1979) (quoting Golden v. Selectmen of Falmouth, 358 Mass. 519, 265 N.E.2d 573, 577 (1970) ). It also requires a developer to file a notice of intention with and obtain an order of conditions from the municipality in which the construction is to be located prior to commencing construction. Mass. Gen. Laws ch. 131, § 40. Finally, the Weymouth Wetlands Protection Ordinance ("Weymouth WPO") generally requires a developer to obtain a permit from the Weymouth Conservation Commission before construction can begin in a wetlands area. Weymouth, Mass., Code § 7-301(b). The Weymouth WPO gives the Conservation Commission the authority to impose permit conditions or deny an application in its entirety if it finds the project will not meet Conservation Commission performance standards or regulations. Id. § 7-301(k). B. Algonquin is a natural-gas transmission company that is headquartered in Houston, Texas. In response to rising demand for natural gas, Algonquin's proposed "Atlantic Bridge Project" aims to increase the delivery capacity of its existing natural-gas transmission system in the northeastern United States. Algonquin seeks to construct a new compressor station-an appurtenance that is placed alongside a gas pipeline to maintain pressure and gas-flow rates-in Weymouth, Massachusetts as part of this project. The proposed site is located within and adjacent to a wetlands area. It is also situated in a coastal zone subject to Massachusetts' coastal-management program. In October 2015, Algonquin applied to FERC for a CPCN to construct and operate the Atlantic Bridge Project. FERC completed an environmental assessment of the proposed project pursuant to the National Environmental Policy Act ("NEPA"), see generally 42 U.S.C. § 4332(C) ; 40 C.F.R. § 1501.4, in which it found that the proposal would have no significant environmental impact. Subsequently, on January 25, 2017, FERC issued Algonquin the CPCN. See Algonquin Gas Transmission, LLC Mars. & Ne. Pipeline, LLC (Algonquin ), 158 FERC ¶ 61,061, 2017 WL 383829, at *1 (Jan. 25, 2017). Significant to this appeal, FERC's CPCN requires that Algonquin obtain a "determination of consistency with the [CZMA]" from Massachusetts OCZM "[p]rior to construction of the Weymouth Compressor Station." Id. at *64. By the time Algonquin received the CPCN from FERC, it had already applied for several Commonwealth authorizations needed to obtain a determination of consistency from Massachusetts OCZM. Pursuant to the Massachusetts WPA and the Weymouth WPO, Algonquin sought authorization from the Weymouth Conservation Commission to begin construction. The Conservation Commission denied Algonquin's WPA and WPO permit applications. It found that Algonquin had not sufficiently addressed hurricane and explosion risks associated with the project. It also concluded that a Weymouth WPO permit could not be adequately conditioned to sufficiently mitigate the air, water, aesthetic, and recreational impairments that would result from construction and operation of the facility. MassDEP has ultimate authority over Algonquin's WPA application, so Algonquin appealed Weymouth's WPA denial to MassDEP, seeking a superseding order of conditions. In a series of rulings and orders, MassDEP agreed with Algonquin and reversed the Massachusetts WPA permit denial. But Weymouth administratively appealed that reversal, pursuant to 310 Mass. Code Regs. § 10.05(7)(j)(2), and MassDEP stayed the adjudication of Weymouth's appeal (and thus the finalization of the WPA authorization) until a court determines whether federal law preempts Weymouth's denial of the project under the Weymouth WPO. Massachusetts OCZM has yet to issue a consistency determination for the proposed project and maintains that it cannot do so until Algonquin proffers all relevant Commonwealth authorizations, including a final Massachusetts WPA permit. To summarize: FERC has concluded its proceedings and has issued Algonquin a permit that is conditioned on receipt of a CZMA consistency determination from Massachusetts OCZM; Massachusetts OCZM will not issue its determination until MassDEP conclusively rules in favor of Algonquin on Weymouth's challenge to the Massachusetts WPA approval; and MassDEP will not dispose of that challenge until a court (or FERC) resolves Algonquin's preemption challenge to the application of Weymouth's ordinance to the compressor station. Thus matters stood on May 4, 2017, when Algonquin commenced this action in federal district court against the Town of Weymouth and the Weymouth Conservation Commission (collectively "Weymouth"), seeking a declaratory judgment that the construction and operation of the Weymouth Compressor Station is not subject to the Weymouth WPO and enjoining enforcement of the permit denial because the ordinance, as it applies to the compressor station, is preempted under federal law. The district court entered summary judgment for Algonquin, relying on both field preemption and conflict preemption grounds in doing so. Algonquin Gas Transmission, LLC v. Weymouth Conservation Comm'n, No. 17-10788-DJC, 2017 WL 6757544, at *5-7 (D. Mass. Dec. 29, 2017). Weymouth's appeal followed. II. Weymouth advances two reasons why we should reverse the district court's entry of summary judgment for Algonquin. First, it argues that the district court erred in not finding this action to be time-barred. Second, as to the merits, Weymouth argues that application of its ordinance to the proposed compressor station is not foreclosed by federal law under theories of conflict and field preemption. We consider each argument in turn. A. When a federal statute creates a cause of action for damages or other legal relief but provides no applicable statute of limitations, "we generally 'borrow' the most closely analogous state limitations period." Graham Cty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 414, 125 S.Ct. 2444, 162 L.Ed.2d 390 (2005) (citing N. Star Steel Co. v. Thomas, 515 U.S. 29, 33-34, 115 S.Ct. 1927, 132 L.Ed.2d 27 (1995) ); see also Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 147, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987) (observing that "the Rules of Decision Act, 28 U.S.C. § 1652, requires application of state statutes of limitations unless 'a timeliness rule drawn from elsewhere in federal law should be applied.' " (quoting DelCostello v. Teamsters, 462 U.S. 151, 159 n.13, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) )). Weymouth urges us to apply this general rule to Algonquin's preemption claim and to look to Massachusetts' certiorari statute, Mass. Gen. Laws ch. 249, § 4, for the applicable statute of limitations. The certiorari statute provides sixty days to correct errors in a judicial or quasi-judicial proceeding that is not otherwise reviewable. See id.; City of Revere v. Mass. Gaming Comm'n, 476 Mass. 591, 71 N.E.3d 457, 467 (2017). Were we to adopt Weymouth's position, Algonquin's preemption claim would be time-barred because Algonquin filed this action in May 2017-nearly a year after the Conservation Commission's WPO permit denial. This general borrowing rule upon which Weymouth relies has an important exception. In equitable suits arising under federal law, we normally do not borrow a limitations period from state law. See Holmberg v. Armbrecht, 327 U.S. 392, 395-96, 66 S.Ct. 582, 90 L.Ed. 743 (1946) ("Traditionally and for good reasons, statutes of limitation are not controlling measures of equitable relief."); Russell v. Todd, 309 U.S. 280, 287, 60 S.Ct. 527, 84 L.Ed. 754 (1940) ("The Rules of Decision Act does not apply to suits in equity."); Union Carbide Corp. v. State Bd. of Tax Comm'rs, 992 F.2d 119, 122-23 (7th Cir. 1993) ; see also Reed v. United Transp. Union, 488 U.S. 319, 324, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989) (citing Holmberg with approval). Instead, the doctrine of laches applies. See Russell, 309 U.S. at 287, 60 S.Ct. 527. This exception for equitable actions is subject to one caveat: Sometimes a claim for equitable relief is pursued to vindicate a legal right. For example, federal law may create a legal right subject to enforcement at both law (for damages) and equity. In such a case, the limitations period applicable to the claim at law may be applied to the equitable claim as well. See Cope v. Anderson, 331 U.S. 461, 464, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947) ("[E]quity will withhold its relief in such a case where the applicable statute of limitations would bar the concurrent legal remedy."); Russell, 309 U.S. at 289, 60 S.Ct. 527. Algonquin, however, brings no equitable sibling of a concurrent claim at law. Rather, it solely pursues a freestanding federal equitable claim unassociated with any concurrent federal legal remedy that might supply (either directly or by borrowing) any limitations period. Weymouth's briefs nevertheless seem to argue by implication that the Massachusetts certiorari statute is the applicable concurrent legal remedy to which we should look. However, we have found no case holding that a state legal remedy is the concurrent remedy at law for an equitable claim brought under federal law, and for good reason: Such a holding would run counter to the principle that claims are "concurrent" when "the only difference between [them] is the relief sought." Grynberg v. Total S.A., 538 F.3d 1336, 1353 (10th Cir. 2008). Moreover, the very purpose of the concurrent-legal-remedy doctrine is "[t]o prevent plaintiffs from making a mockery of the statute of limitations by the simple expedient of creative labelling." Gilbert v. City of Cambridge, 932 F.2d 51, 57 (1st Cir. 1991). Filing a well-recognized federal claim rather than a state-law claim cannot be fairly described as claim relabeling; rather, it is the selection of one claim instead of another within the context of a dual-sovereign system. That Algonquin also requests declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, does not vitiate the equitable nature of its suit. To "ascertain whether a particular suit for declaratory relief is grounded in law or in equity," we ask "whether, in the absence of the Declaratory Judgment Act, the suit brought would have been legal or equitable in nature." El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 493 (1st Cir. 1992) (quoting Mowbray v. Moseley, Hallgarten, Estabrook & Weeden, Inc., 795 F.2d 1111, 1114-15 (1st Cir. 1986) ). Were declaratory relief unavailable to Algonquin, Algonquin would be left to pursue its negative injunction, premised on its claim that federal law "immunizes" it from local regulation, see Armstrong v. Exceptional Child Ctr., Inc., --- U.S. ----, 135 S.Ct. 1378, 1384, 191 L.Ed.2d 471 (2015), as its only federal means of redress. For this reason, Algonquin's requested declaratory relief is also grounded in equity. Hence, we apply laches. Laches arguably might have barred Algonquin's preemption claim if Weymouth had shown that Algonquin lacked reasonable diligence in pursuing its federal rights to Weymouth's prejudice. See K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 911 (1st Cir. 1989) (citing Puerto Rican-Am. Ins. Co. v. Benjamin Shipping Co., 829 F.2d 281, 283 (1st Cir. 1987) ). However, Weymouth has made no argument on appeal that laches should foreclose our consideration of Algonquin's suit. And though Weymouth maintains that Algonquin could have raised its preemption claim sooner, it does not contend that Algonquin's delay was unreasonable or that it prejudiced Weymouth in any way. Thus, we deem this argument waived. See Rife v. One W. Bank, F.S.B., 873 F.3d 17, 19 (1st Cir. 2017) ("It is well-settled that arguments not raised in an opening brief ... are deemed waived."). And even were it not waived, nothing in the record before us indicates a lack of diligence on Algonquin's part or any prejudice to Weymouth. Accordingly, we affirm the district court's finding that Algonquin's preemption claim is not time-barred. B. The district court relied on field preemption and conflict preemption principles in entering summary judgment for Algonquin. See Algonquin Gas Transmission, LLC, 2017 WL 6757544, at *5-7. Weymouth maintains that neither form of preemption should preclude the application of its ordinance to the Weymouth Compressor Station. Before we reach the merits of this issue, however, we first consider whether Algonquin's preemption claim is ripe for our review. 1. "[T]he question of ripeness may be considered on a court's own motion." Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). We do so now and, after careful consideration, we find Algonquin's preemption claim ripe for judicial resolution. In determining whether an issue is ripe for our review, we consider "(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration." Id. (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ). The fitness prong of this inquiry implicates both constitutional and prudential justiciability concerns. See McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63, 70 (1st Cir. 2003) ; 13B Charles Alan Wright et al., Federal Practice and Procedure § 3532.1 (3d ed. 2018). Article III principles require us first to ask "whether the claim involves uncertain and contingent events that may not occur as anticipated or may not occur at all," thus rendering any opinion we might offer advisory. Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 536 (1st Cir. 1995) (quoting Mass. Ass'n of Afro-Am. Police, Inc. v. Bos. Police Dep't, 973 F.2d 18, 20 (1st Cir. 1992) (per curiam)); see also Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013). The prudential component of the fitness test asks whether resolution of the case turns on "legal issues not likely to be significantly affected by further factual development." Ernst & Young, 45 F.3d at 536. On the other hand, the hardship prong of this inquiry is purely prudential and requires that we evaluate "whether the challenged action creates a 'direct and immediate' dilemma for the parties." W.R. Grace & Co.-Conn. v. EPA, 959 F.2d 360, 364 (1st Cir. 1992) (quoting Abbott Labs., 387 U.S. at 152-53, 87 S.Ct. 1507 ). In City of Fall River, Massachusetts v. FERC, we found a challenge to a FERC permit not ripe when the permit made the commencement of construction contingent on the receipt of authorizations from two other federal agencies. 507 F.3d 1, 4-5, 7-8 (1st Cir. 2007). In that case, it was uncertain whether the approved work would be forthcoming because both agencies had withheld approval and "ha[d] expressed serious reservations about the project." Id. at 7. Thus, we found it likely that our resolution of the challenge to FERC's conditional approval "would be advisory" and "irrelevant to the ultimate approvability of the project." Id. at 8. In this case, FERC's certificate also makes construction contingent upon the approval of another agency. See Algonquin, 2017 WL 383829, at *64 ("Prior to construction of the Weymouth Compressor Station, Algonquin shall file with the Secretary a copy of [Massachusetts OCZM's] determination of consistency with the Coastal Zone Management Act."). Unlike Fall River, however, this case does not involve a challenge to the conditioned permit itself. Rather, Algonquin seeks relief that would finally remove a principal impediment that stands in the way of a final action by that other agency. Moreover, Massachusetts OCZM has expressed no serious reservation about issuing a determination of consistency-at least as far as we can tell based on the record before us-and MassDEP's initial decision to grant Algonquin a Massachusetts WPA permit indicates that a final disposition in Algonquin's favor is, while not preordained, at least likely. Accordingly, our resolution of Algonquin's preemption claim would be neither "advisory" nor "irrelevant"; rather, it would apparently clear a procedural logjam that would not otherwise be cleared. See Weaver's Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 589 F.3d 458, 468-69 (1st Cir. 2009) (finding the final resolution of "barriers to ultimate approval of the project" sufficient to warrant our exercise of jurisdiction). For these reasons, we find Algonquin's challenge to be ripe. 2. Algonquin urges us to hold, in accordance with the district court's decision, that the NGA itself preempts the field of regulation that includes any material application of the Weymouth WPO to Algonquin's Atlantic Bridge Project. We decline to go so far, preferring to decide the preemption issue on narrower grounds, that of conflict preemption. See Weaver's Cove Energy, LLC, 589 F.3d at 472. Conflict preemption exists when " 'compliance with both state and federal law is impossible,' or where 'the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." ' " Oneok, Inc. v. Learjet, Inc., --- U.S. ----, 135 S.Ct. 1591, 1595, 191 L.Ed.2d 511 (2015) (quoting California v. ARC Am. Corp., 490 U.S. 93, 100, 101, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989) ). We review the district court's preemption decision de novo. Weaver's Cove Energy, LLC, 589 F.3d at 472. Though the NGA itself does not expressly provide for a comprehensive regulatory scheme pursuant to which FERC must consider environmental, siting, and safety factors when issuing a CPCN, FERC's regulations implementing that statute do provide such a scheme. Prior to authorization, FERC is required to prepare an environmental assessment under NEPA, 18 C.F.R. § 380.5(b)(1) ; see also 42 U.S.C. § 4332 ; 40 C.F.R. § 1508.9. An environmental assessment must discuss "the need for the proposal, ... alternatives [to the project], ... [and] the environmental impacts of the proposed action and alternatives." 40 C.F.R. § 1508.9(b). In addition, an environmental assessment must include an analysis determining whether a full-blown environmental impact statement must be prepared and whether the project will have a significant environmental impact. Id. § 1508.9(a)(1). This process entails FERC taking a close look at the "intensity" of the project's environmental consequences, including "[t]he degree to which the proposed action affects public health or safety," "proximity to ... wetlands," the extent to which "the possible effects on the human environment are highly uncertain or involve unique or unknown risks," and "[w]hether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment." 40 C.F.R. § 1508.27(b). In addition, FERC's regulations require a developer to include in its application for a CPCN "all information necessary to advise [FERC] fully concerning the ... construction ... for which a certificate is requested." 18 C.F.R. § 157.5(a). This includes information detailing the location and size of a proposed facility and environmental reports detailing the projected local and environmental consequences of the project. See 18 C.F.R. § 157.14(a)(6)-(7). Specifically, these environmental reports must identify the wetlands that will be affected and available mitigation measures, id. § 380.12(d)-(e), the land use, public health, safety, and aesthetic consequences of the project, id. § 380.12(j), and any air quality impacts the proposal might have, id. § 380.12(k). Then, pursuant to FERC's Certificate Policy Statement, FERC determines whether a project is in the public convenience and necessity by "balanc[ing] the public benefits against the potential adverse consequences." Certification of New Interstate Nat. Gas Pipeline Facilities, 88 FERC ¶ 61,227, 61,745 (1999), clarified, 90 FERC ¶ 61,128 (2000), further clarified, 92 FERC ¶ 61,094 (2000). This balancing weighs the economic vitality of the project and any adverse effects on existing customers before proceeding to "an independent environmental review" of the project, whereby FERC considers the NEPA analysis, "the other interests of landowners and the surrounding community," potential "route[s] other than the one proposed by the applicant," and the goal of avoiding "unnecessary disruptions of the environment." Id. ¶¶ 61,737 ; 61,745 ; 61,749. Pursuant to this process, FERC-in both its environmental assessment and its CPCN-considered essentially the same environmental and safety concerns that the Conservation Commission relied upon in denying Algonquin a Weymouth WPO permit. FERC's environmental analysis addressed water resources, wetlands, land use, recreational, air quality, and safety considerations associated with the Atlantic Bridge Project and the Weymouth Compressor Station. See Algonquin, 2017 WL 383829, at *10. And in its CPCN, FERC specifically addressed environmental justice, aesthetic, and air quality concerns regarding the siting of the compressor station but found such impacts either not significant or adequately addressable. Id. at *23-24, 37-39. The CPCN also considered risks from flooding and impacts from hurricanes but concluded that the station's proposed design would minimize these risks. Id. at *26-27. It further concluded that the project would have no direct impact on water resources or nearby wetlands since no dredging or in-water construction at the Weymouth site would be required. Id. at *30-34. Finally, as to risks from a potential explosion, FERC's CPCN noted that Algonquin has committed to comply with all applicable Pipeline and Hazardous Materials Safety Administration regulations, thereby minimizing any such risk. Id. at *53. Based on its economic and environmental review, and its finding that there was no better site for the Weymouth Compressor Station, id. at *26, FERC concluded that its construction and operation would serve the public interest, id. at *5-6. The Conservation Commission's order reaches the opposite conclusion based on essentially the same environmental considerations. In so doing, the Conservation Commission's permit denial certainly poses a significant obstacle, indeed an effectively complete obstacle, to FERC's ultimate determination that "public convenience and necessity" "require" that the Weymouth Compressor Station be built. 15 U.S.C. § 717f(e) (emphasis added). Accordingly, FERC's issuance of a CPCN to Algonquin in this case conflict preempts the Conservation Commission's WPO permit denial. See Oneok, Inc., 135 S.Ct. at 1595. Weymouth seeks to avoid this result by arguing that Algonquin breached a duty to "make a reasonable attempt to obtain an approval before asserting that the local authority has 'prohibited' the project." Weymouth provides no support for the existence of such a duty under federal law. To the extent that Weymouth makes this argument in reliance on the portion of FERC's certificate that "encourages cooperation between interstate pipelines and local authorities," Algonquin, 2017 WL 383829, at *12, we note that this provision does not require such cooperation from Algonquin; it merely "encourages" it, perhaps to the satisfaction of FERC. But nothing in the FERC certificate or any federal law to which Weymouth points would allow us to forgo our preemption ruling on the basis that Algonquin did not try hard enough to convince Weymouth to allow the project to proceed. Weymouth also passingly invokes the doctrine of unclean hands to suggest that we should decline to grant the declaratory and injunctive relief that Algonquin seeks in this case. See generally Texaco P.R., Inc. v. Dep't of Consumer Affairs, 60 F.3d 867, 880 (1st Cir. 1995). But even assuming (without deciding) that Algonquin somehow owed an enforceable duty to Weymouth to seek Weymouth's approval of the project under its ordinance, Weymouth points to no evidence in the record to support its proposition that Algonquin pursued a WPO permit in less than good faith. Weymouth also argues that FERC's CPCN cannot have preemptive effect in this case due to its "conditional" nature. We reject this argument for essentially the same reasons we found this dispute to be ripe. FERC has conclusively and finally weighed the environmental, safety, and siting considerations associated with this project in its CPCN, and FERC's determination that the project is necessary and in the public interest is at this point only "conditional" in that it awaits the conclusion of MassDEP's proceeding and a consistency determination from Massachusetts OCZM, both of which, in turn, hinge on our preemption decision. Whether and to what extent the FERC permit is otherwise conditioned we need not decide. Likely for similar, albeit unstated reasons, we have, in at least one instance, readily assumed that FERC approvals containing similar conditions precedent still have preemptive force. See Weaver's Cove Energy, LLC, 589 F.3d at 472-474. And the D.C. Circuit has applied this same assumption. See, e.g., Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1308, 1319-22 (D.C. Cir. 2015) ; Dominion Transmission, Inc. v. Summers, 723 F.3d 238, 245 (D.C. Cir. 2013). On the other side of the ledger, Weymouth directs us to no case holding that such a FERC authorization-final in all respects aside from requiring the applicant to obtain additional approvals prior to commencing construction-lacks the ability to preempt contrary state or local law. With these considerations in mind, we hold that FERC's CPCN conflict preempts the Conservation Commission's WPO permit denial. III. For the foregoing reasons, we affirm the district court's entry of summary judgment for Algonquin to the extent that it held that FERC's issuance of a CPCN authorizing construction of the Weymouth Compressor Station conflict preempts Weymouth's application of its ordinance to Algonquin's FERC-approved project. Algonquin does not claim in this action that the statewide, minimum requirements of the Massachusetts WPA are preempted as applied to the compressor station. Weymouth holds the position that MassDEP's stay is not an impediment to Algonquin's receipt of a consistency determination from Massachusetts OCZM. However, as will be addressed, infra, Massachusetts OCZM appears to require the submission of a final Massachusetts WPA permit, when applicable, before completing its CZMA review. Weymouth disputes that the stay of its challenge to MassDEP's superseding order of conditions is an impediment to Algonquin's receipt of a consistency determination from Massachusetts OCZM. However, Massachusetts OCZM maintains that it "cannot complete its review and issue a decision of consistency with its enforceable program policies until all applicable licenses, permits, certifications and other authorizations have been issued by Massachusetts environmental agencies." And it is not contested that the Massachusetts WPA is such an enforceable policy under Massachusetts' coastal-management program. It follows that MassDEP must complete its adjudication of Weymouth's challenge before Massachusetts OCZM will complete its CZMA review. If Weymouth means to raise a lack of cooperation as a collateral challenge to Algonquin's compliance with FERC's certificate, that issue is not before us. On this point, Weymouth argues that entry of summary judgment for Algonquin would be inappropriate before discovery has been conducted. Weymouth, though, did not move to defer the district court's consideration of the summary judgment motion to allow for discovery pursuant to Fed. R. Civ. P. 56(d). Weymouth argues that Weaver's Cove is inapposite because concurrence with the state's coastal-management program could be presumed for the court's preemption analysis there. This ignores the fact that the Weaver's Cove project required additional authorizations before construction could commence, including one from the Army Corps of Engineers under the Rivers and Harbors Act, 33 U.S.C. § 403, which Weaver's Cove had not yet obtained at the time of appeal. See Weaver's Cove Energy, LLC, 589 F.3d at 463, 468. Our decision in that case also noted an amendment to the original plan that required additional "federal regulatory approval" before construction could begin. See id. at 468.

Oregon Coast Scenic Railroad v. Oregon Department of State Lands

OPINION THOMAS, Chief Judge: This case presents the question whether the federal Surface Transportation Board (“the Board”) has exclusive jurisdiction over railroad repair work done at the direction of a federally regulated rail carrier but performed by a contractor rather than the carrier itself. We conclude that it does, and we therefore reverse and remand. I The Oregon Coast Scenic Railroad (“Oregon Coast”) is a non-profit corporation that operates tourist trains on a portion of track in Oregon that is owned by the Port of Tillamook Bay (“the Port”). The Port is a federally regulated railroad authorized by the Board. The Port operates freight trains; it formerly ran trains on the portion of the railroad used by Oregon Coast, but in 2007 part of the track was damaged by a winter storm and freight traffic ceased on that portion of the track. In 2012, Oregon Coast and the Port entered into a five-year agreement under which Oregon Coast would continue leasing this portion of the track, but instead of paying the Port for use of the track, Oregon Coast would instead use those funds “for deferred.maintenance and upgrading of [the Port’s] rail line and right-of-way.” The agreement provided that Oregon Coast would be “solely responsible” for rehabilitation of the railway, track maintenance, and compliance with federal and state safety and maintenance requirements. The agreement contemplated that the repair work might reestablish the track’s “connection to a mainline carrier providing service,” ' and freight traffic might resume at some point. If and when that happened, the parties agreed to negotiate a modification to the agreement that would allow Oregon Coast to continue to run tourist trains alongside the Port’s anticipated freight traffic. Oregon Coast began repair work under this agreement in early 2014. On March 11, 2014, after approximately five weeks of work had beén completed and two to four weeks of work remained, the State of Oregon’s Department of State Lands (“the State”) sent Oregon Coast a cease and desist order. The order alleged that Oregon Coast’s repair work was violating a state “removal-fill law,” which, among other things, requires a state permit for the removal of any amount of material from waters designated as Essential Salmonid Habitat. The State alleged that Oregon Coast was engaging in unpermitted “removal-fill activity” in or near an Essential Salmonid Habitat section of the Salmon-berry River, and it contested Oregon Coast’s assertion that federal law preempted application of this state law to railroad repair work. Oregon Coast filed a complaint in federal district court the following day, seeking declaratory and injunctive relief. Oregon Coast argued that the removal-fill law is preempted by the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. §§ 10101 et séq., which governs federal regulation of railroads. Oregon Coast sought a permanent injunction and a determination that application of the state law is federally preempted; that enforcement of the .removal-fill law constituted an impermissible burden on interstate commerce in violation of the Commerce Clause; and that enforcement of the law violated Oregon Coast’s federal rights under 42 U.S.C. § 1988. Oregon Coast also immediately moved for a preliminary injunction against the law’s enforcement. The district court held a hearing on the preliminary injunction in April 2014. At the State’s request, the district court consolidated the preliminary injunction hearing with a hearing on the merits; it then issued a single order on all of Oregon Coast’s requested relief. The court concluded that the removal-fill law was not preempted because Oregon Coast’s tourist train activities were not sufficiently related to interstate commerce to bring Oregon Coast within the exclusive federal jurisdiction provision of the ICCTA. The court also concluded that Oregon Coast’s agreement with the Port was insufficient to establish federal preemption as to Oregon Coast on the basis of the Port’s status as a federally licensed carrier. Having concluded that Oregon Coast’s claims failed on the merits, the district court denied Oregon Coast’s requests for preliminary and permanent injunctions and for declaratory relief, and it dismissed the case. Oregon Coast appeals, challenging (1) the district court’s conclusion that federal preemption does not apply to the repair work done by Oregon Coast; (2) its conclusion that Oregon Coast was not acting as an agent of the Port; and (3) its denial of Oregon Coast’s requests for preliminary and permanent injunctions and declaratory relief, Oregon Coast presents a federal question by alleging that enforcement of the state removal-fill law is preempted by the federal ICCTA; thus the district court had subject matter jurisdiction under 28 U.S.C. § 1331. See Indep. Training & Apprenticeship Program v. Cal. Dep’t of Indus. Relations, 730 F.3d 1024, 1031 (9th Cir. 2013) (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). We have jurisdiction over the appeal under 28 U.S.C. § 1291. We review de novo a district court’s decision granting or denying declaratory relief. Wagner v. Prof'l Eng’rs in Cal. Gov’t, 354 F.3d 1036, 1040 (9th Cir. 2004). We review a district court’s denial of a preliminary or permanent injunction for abuse of discretion. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011); Cummings v. Connell, 316 F.3d 886, 897 (9th Cir. 2003). In this context, “[a]n abuse of discretion will be found if the district court based its decision ‘on an erroneous legal standard or clearly erroneous finding of fact.’ ” Cottrell, 632 F.3d at 1131 (quoting Lands Council v. McNair, 537 F.3d 981, 986 (9th Cir. 2008) (en banc)). Because it is a question of law, we review de novo a district court’s conclusion about the extent of federal preemption. In re Korean Air Lines Co., Ltd., 642 F.3d 685, 691 n.3 (9th Cir. 2011). Here, because the district court’s decisions on the preliminary injunction, permanent injunction, and declaratory relief all relied on the same analysis of the preemption question, a legal error in that analysis would affect the court’s decision on all three forms of requested relief. We therefore'focus our analysis on the district court’s conclusion as to the federal preemption question. II The ICCTA was passed in 1995, in part with the purpose of expanding federal jurisdiction and preemption of railroad regulation. See H.R. Rep. No. 104-311 at 95 (1995) (“[C]hanges are made to reflect the direct and complete preemption of State economic regulation of railroads.”). In order for federal preemption to apply under the ICCTA, the activity in question must first fall within the statutory grant of jurisdiction to the Surface Transportation Board, one of several federal agencies charged with railroad regulation. 49 U.S.C. § 10501(a). As modified by the ICCTA, 49 U.S.C. § 10501(a) provides in relevant part: (1) Subject to this chapter, the Board has jurisdiction over transportation by rail carrier that is— . (A) only by railroad; or (B) by railroad and water [under specified circumstances]. (2) Jurisdiction under paragraph (1) applies only to transportation in the United States between a place in— (A) a State and a place in the same or another State as part of the interstate rail network.... If the Board has jurisdiction under 49 U.S.C. § 10501(a), the question whether jurisdiction is exclusive—i.e., whether state regulation is preempted—is a separate question governed by 49 U.S.C. § 10501(b), which provides that “[t]he jurisdiction of the Board over ... (1) transportation by rail carriers ... and (2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State, is exclusive.” In short, under the factual scenario presented by this case, Board jurisdiction under § 10501(a) is a threshold question requiring that the disputed activity meet three statutory prongs: it must be (1) “transportation” (2) “by rail carrier” (3) “as part of the interstate rail network.” Id. The parties do not dispute that the repair work done by Oregon Coast qualifies as “transportation,” which the ICCTA defines as including any “property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail” as well as “services related to that movement.” 49 U.S.C. § 10102(9). The parties’ central dispute focuses on the other two prongs of the jurisdiction analysis—that is, on whether the repair work can be considered work done “by rail carrier” through Oregon Coast’s relationship with the Port, and whether maintenance work done on an intrastate section of track can be considered “part of the interstate rail network.” For the reasons described below, we answer both questions in the affirmative. A The ICCTA defines “rail carrier” as “a person providing common carrier railroad transportation for compensation.” 49 U.S.C. § 10102(5). But the statute does not address whether, in the jurisdiction provision, the term “transportation by rail carrier” may include work actually performed by another party under the auspices of the rail carrier. Here, it is undisputed that the Port is a federally licensed and regulated rail carrier, authorized by the Board under the procedures set out in 49 U.S.C. § 10901. The State has conceded that the track repair work in this ease would fall under the Board’s jurisdiction if the Port were undertaking the repairs itself. Instead, the Port has essentially hired Oregon Coast to do this maintenance work on its behalf during the five-year agreement; the Port is paying Oregon Coast in the form of free track use for the duration of the agreement. This leaves us with the question whether the Port somehow divested the Board of jurisdiction over the repairs by hiring Oregon Coast to perform the work on its behalf. We conclude that it did not. The Board itself has considered this question in similar contexts, and its decisions are instructive here. See Ass’n of Am. R.R.s v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1097 (9th Cir. 2010) (drawing “guidance on the scope of ICCTA preemption from the decisions of the Surface Transportation Board ..., to which we owe Chevron deference” (citing DHX, Inc. v. Surface Transp. Bd., 501 F.3d 1080, 1086 (9th Cir. 2007))). The Board’s decisions show that work done by a non-carrier can be considered activity “by a rail carrier” if there is a sufficient degree of integration between the work done by the non-carrier and the authorized rail carrier’s own operations. See, e.g., City of Alexandria, No. 35157, 2009 WL 381800, at *2 (S.T.B. Feb. 17, 2009); Town of Babylon, No. 35057, 2008 WL 275697, at *3 (S.T.B. Feb. 1, 2008); Hi Tech Trans, LLC, No. 34192, 2003 WL 21952136, at *4 (S.T.B. Aug. 14, 2003). The Board’s decisions emphasize that this question is a “case-by-case, fact-specific determination.” City of Alexandria, 2009 WL 381800, at *2. Factors considered by the Board include the degree of control exercised by the carrier over the non-carrier’s operations, the involvement of the carrier in day-to-day operations, the structure of payments and cost agreements, and other terms of the agreement between the carrier and the non-carrier. Id. The Board weighs these factors to determine whether the non-carrier’s activities are “an integral part of [the rail carrier’s] provision of transportation by rail carrier.” Hi Tech, 2003 WL 21952136, at *4. Applying this framework to the current case, the repairs are properly considered done by the Port. The agreement between Oregon Coast and the Port gives Oregon Coast responsibility for the specified repair and maintenance operations; yet. Oregon Coast must adhere to the agreed-upon maintenance plan, which gives the Port a degree of control by specifying particular tasks and timelines .that Oregon Coast must meet. Moreover, track maintenance and repair are essential to providing transportation over a railway. Thus by helping the Port maintain its track and re-establish its connection to the interstate rail network, the repair work performed by Oregon Coast is “an integral part of [the Port’s] provision of transportation by rail carrier.” See id. Finally, we note the absurd result that would occur if the Port were able to divest the Board of jurisdiction simply by hiring a contractor to perform repair or maintenance work on its behalf. The ICCTA and its predecessor, the Interstate Commerce Act, ch. 104, 24 Stat. 379 (1887), have “been recognized as ‘among the most pervasive and comprehensive of federal regulatory schemes,'” City of Auburn v. United States, 154 F.3d 1025, 1027 (9th Cir. 1998) (quoting Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 318, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981)). Allowing a rail carrier to avoid federal jurisdiction by hiring a contractor would defeat Congress’s purpose in creating such a far-reaching regulatory scheme. Because “statutory interpretations which would produce absurd results are to be avoided,” Ma v. Ashcroft, 361 F.3d 553, 558 (9th Cir. 2004) (citing United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992)), we cannot conclude that Congress intended to exclude from federal jurisdiction any party carrying out a rail carrier’s essential transportation-related functions on its behalf. Accordingly, the repair work done by Oregon Coast is properly considered “transportation by rail carrier” within the meaning of'49 U.S.C. § 10501(a)(1). The district court erred in concluding otherwise. td Once the other prongs of the jurisdictional inquiry are met, the ICCTA gives the Board jurisdiction over domestic rail transportation “between a place in ... a State and a place in the same or another State as part of the interstate rail network.” 49 U.S.C. § 10501(a)(2)(A). Because Oregon Coast’s repair work takeS place entirely within the state of Oregon, it satisfies this prong if it is done “as part of the interstate rail network.” Id. We conclude that it is. ' The phrase “as part of the interstate rail network” is not defined by statute, but the Board has interpreted it “broadly to include (but not be limited to) facilities that are part of the general system of rail transportation and are related to the movement of passengers or freight[ ]in interstate commerce.” DesertXpress Enters., LLC, No. 34914, 2010 WL 1822102, at *9 (S.T.B. May 7, 2010). The Board has also emphasized that the ICCTA actually expanded the Board’s jurisdiction to ensure that “transportation between places in the same state would be within the Board’s jurisdiction as long as that transportation was related to interstate commerce.” Id. at *6. We confirmed this interpretation in City of Auburn, where we held that the Board had exclusive jurisdiction over an 'intrastate railroad repair project that aimed to prepare a section of track—at the time used only for local traffic—to join, a reestablished main line for through traffic. 154 F.3d at 1031. In that case, we “not[ed] that Congress and the courts long have recognized a need to regulate railroad operations at the federal level.” Id. at 1029. We also highlighted the fact that § 10501 itself expressly refers to the Board’s jurisdiction over “the construction ... of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State.” Id. at 1030 (emphasis added) (quoting 49 U.S.C. § 10501(b)(2)). The facts of the current case closely mirror City óf Auburn. Oregon Coast contracted with -the Port to perform repair work on a section of track that was previously connected to the interstate rail network and that would, once fully repaired, reconnect the track to the interstate rail network. The agreement between Oregon Coast-and the Port expressly contemplates that the track may be reconnected to the interstate network within the five-year span of the agreement, allowing the parties to negotiate a modification to the agreement—but leaving the agreement in place—if the'“rail connection to a mainline carrier providing service [is] re-established and freight traffic resumefs].” Similarly, the lease agreement gives Oregon Coast the “option ... to reinstall the rail line and recover” eighteen train cars that are currently stranded on the severed portion of track. These provisions suggest that Oregon Coast’s repair work is aimed at reconnecting the disconnected track to the interstate rail network. Thus, as in Auburn, this repair work is done “as part of the interstate rail network.” Moreover, even if Oregon Coast’s work did not result in full reconnection of the track,- the repairs would still be considered “part of the interstate rail network” because they involve track that is still federally authorized as part of the interstate rail system. In a similar case that is instructive here, the Board concluded that it had jurisdiction over a project to rehabilitate a depot serving a rail line that had not been in service for years but was still federally authorized. City of Creede, No. 34376, 2005 WL 1024483, at *8 (S.T.B. May 3, 2005). Here, similarly, the repair work is being done on track that is owned by the Port and is still federally authorized under the Port’s Certifícate of Public Convenience and Necessity, despite the physical disconnection caused by storm damage. The fact these repairs are integral to the functioning of a federally authorized track segment establishes that the repairs are done “as part of the interstate rail network”' within the meaning of § 10501(a)(2)(A). Although the State cites several cases purportedly demonstrating that the Board does- not have jurisdiction over wholly intrastate segments of track, those cases do not affect our analysis. We note that Mag-ner-O’Hara Scenic Railway v. Interstate Commerce Commission, a Sixth Circuit case considering a similar question, was decided before the ICCTA expanded Board jurisdiction over intrastate transportation. 692 F.2d 441, 442-43 (6th Cir. 1982). And we are unpersuaded by the logic of more recent cases citing Magner without acknowledging the significant expansion of jurisdiction under the ICCTA. See RLTD Ry. Corp. v. Surface Transp. Bd., 166 F.3d 808, 813 (6th Cir. 1999); Fun Trains, Inc., No. 33472, 1998 WL 92052, at *2 (S.T.B. Mar. 5, 1998). We conclude, therefore, that the repair work performed by Oregon Coast under the agreement with the Port is properly considered done “as part of the interstate rail network.” 49 U.S.C. § 10501(a)(2)(A). Because the repair work also qualifies as “transportation by rail carrier,” as discussed above, we conclude that it falls within the Board’s jurisdiction under 49 U.S.C. § 10501(a). Ill Once jurisdiction is established under 49 U.S.C. § 10501(a), the broad preemption provision of 49 U.S.C. § 10501(b) makes the Board’s jurisdiction exclusive over “(1) transportation by rail carriers” and “(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State.” This subsection also expressly provides that “the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.” 49 U.S.C. § 10501(b). Because the repair work here falls squarely within this preemption provision, we conclude that state regulation is preempted. Our decision on this question ■ is controlled by City of Auburn, in which we held that 49 U.S.C. § 10501(b) preempted not just economic but also environmental regulation, “[f]or if local authorities have the ability to impose.‘environmental’ permitting regulations on the railroad, such power will in fact amount to ‘economic regulation’ if the carrier is prevented from constructing, acquiring, operating, abandoning, or discontinuing a line.” 154 F.3d at 1031. Looking to the language of 49 U.S.C. § 10501(b), we emphasized in City of Auburn that “[i]t is difficult to imagine a broader statement of Congress’s intent to preempt state regulatory authority over railroad operations.” Id. at 1030 (quoting CSX Transp., Inc. v. Ga. Pub. Serv. Comm’n, 944 F.Supp. 1573, 1581 (N.D. Ga. 1996)). As a result, we held that 49 U.S.C. § 10501(b) “explicitly grant[ed] the [Board] exclusive authority over railway projects like” the intrastate rail repair project at issue in City of Auburn, which closely resembles the project in this case. City of Auburn, 154 F.3d at 1030. Our subsequent decision in Association of American Railroads v. South Coast Air Quality Management District clarified that the ICCTA “does not preempt state or local laws if they are laws of general applicability that do not unreasonably interfere with interstate commerce,” but it “preempts all ‘state laws that may reasonably be said to have the effect , of managing or governing rail transportation.’ ” 622 F.3d 1094, 1097 (9th Cir. 2010) (first, citing Bos. & Me. Corp. & Town of Ayer, No. 33971, 2001 WL 458685, at *4-6 (S.T.B. May 1, 2001); then quoting N.Y. Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 252 (3d Cir. 2007)). In determining whether a law of general applicability is permissible, we explained that “[w]hat matters is the degree to which the challenged regulation burdens rail transportation.” Id. at 1097-98 (quoting N.Y. Susquehanna, 500 F.3d at 252). Here, the State’s removal-fill law requires that Oregon Coast apply for and be granted a permit before removing “any amount of material within waters designated Essential Salmonid Habitat.” Because “the ability to impose ‘environmental’ permitting regulations on the railroad” can in fact give local authorities the power to “prevent[ a carrier] from constructing, acquiring, operating, abandoning, or discontinuing a line,” City of Auburn, 154 F.3d at 1031, such a permitting scheme would “have the effect of managing or governing rail transportation,” Ass’n of Am. R.R.s, 622 F.3d at 1097 (quoting N.Y. Susquehanna, 500 F.3d at 252). Thus even under the more subjective approach used in Association of American Railroads, we conclude that the State’s removal-fill law is preempted by the ICCTA as applied to the repair work in this case. IV In sum, the repair work done by Oregon Coast under its agreement with the Port falls under the Board’s jurisdiction because the work is done under the auspices of a federally regulated rail carrier and is sufficiently related to the provision of transportation over the interstate rail network. The State’s removal-fill law is preempted as applied to this work, and the district court erred in concluding otherwise. Because the district court’s rulings on the preliminary injunction, permanent injunction, and declaratory relief were all premised on this incorrect legal' determination, we reverse and remand for further proceedings with respect to each form of relief. REVERSED and REMANDED. . In fact, the Port undertook- very similar maintenance and repair work on almost the same segment of track in the mid-1990s. The Port hired a contractor to perform this work, and that contractor has testified that he completed the work under the auspices of the Port, without going through state permitting processes. . Although the parties focus on whether an agency relationship was created under Oregon law, the question whether a federal statute grants jurisdiction over a particular activity is a question of federal law that does not depend on the contours of a particular state’s agency law, See, e.g., Ass'n of Am. R.R.s v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1096-98 (9th Cir. 2010) (analyzing the issue of Board jurisdiction and preemption under federal law); City of Auburn v. United States, 154 F.3d 1025, 1029-31 (9th Cir. 1998) (same). . Although this language appears in the preemption provision, 49 U.S.C. § 10501(b), rather than in the jurisdictional grant, 49 U.S.C. § 10501(a), it nevertheless informs our interpretation of the jurisdictional provision, because the general jurisdictional grant of § 10501(a) must be at least as broad as the te elusive jurisdiction provision Of § 10501(b). See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485-86, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (explaining that a court may properly look to the statutory framework and surrounding provisions for guidance in interpreting the scope of preemption).

Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses Commission

WESLEY, Circuit Judge: Plaintiff-Appellant Goodspeed Airport LLC appeals from a judgment of the United States District Court for the District of Connecticut (Kravitz, /.), entered after a bench trial, in favor of Defendants-Appellees East Haddam Inland Wetlands and Watercourses Commission and James Ventres. Goodspeed Airport sought declaratory and injunctive relief establishing and protecting its right to cut certain trees on its property, part of which is protected wetlands. Under Connecticut law and municipal regulations, a person must apply for permission to undertake activities affecting wetlands. We write to claxdfy what to date this Court has suggested only in dicta: that Congress has established its intent to occupy the entire field of air safety, thereby preempting state regulation of that field. However, the state and local laws and regulatory scheme at issue in the instant appeal do not sufficiently intrude upon the field of air safety to be preempted. Nor are they expressly preempted by the Airline Deregulation Act. Accordingly, the judgment of the district court is Affirmed. I. BACKGROUND The facts of this case, as well as the statutory and regulatory context, are discussed at length in the district court’s thorough and well-reasoned opinion. Goodspeed Airport, LLC v. East Haddam Inland Wetland & Watercourses Comm’n (Goodspeed), 681 F.Supp.2d 182 (D.Conn. 2010). We discuss only those aspects of the case necessary to an understanding of the issues presented on appeal. Appellant Goodspeed Airport (the “Airport”) is a small, state-licensed, privately owned and operated commercial airport in East Haddam, Connecticut. Appellee James Ventres is the enforcement officer for Appellee East Haddam Inland Wetlands and Watercourses Commission (“IWWC”). The IWWC is a municipal regulatory body established pursuant to the Connecticut Inland Wetlands and Watercourses Act (“IWWA”). The IWWA declares that it is “the public policy of [Connecticut] to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the [state’s] various municipalities or districts.” Conn. Gen.Stat. § 22a-42(a). The IWWC may issue cease and desist orders and bring actions to enforce the act’s provisions. Persons within its jurisdiction are required to apply to the IWWC for permission before undertaking activities affecting protected land. The Airport’s property is partly composed of protected wetlands. This protected land contains trees and other vegetation which the Airport wishes to cut down. In January 2001, the IWWC issued the Airport a Cease and Desist Order (the “Order”) instructing it to refrain from “all regulated activity within seventy-five feet of inland/wetlands and watercourses (regulated areas) on your property!.]” The Order cited as its authority certain regulations of the Town of East Haddam, adopted and promulgated under Connecticut General Statute Section 22a. This Order was later withdrawn, but Appellees continue to assert that the Airport is obliged to obtain a permit before cutting the trees. The Airport contends — -and Appellees do not contest — -that some of the trees it wishes to cut down fall within the definition of “obstructions to air navigation” under 14 C.F.R. Part 77 (“FAA Regulations”). The FAA Regulations establish standards for identifying these obstructions, defining an imaginary surface in the shape of a bowl around regulated runways. Id. § 77.23. Objects breaching this imaginary surface are declared to be obstructions. Id. The Airport argues that, since these trees qualify as obstructions, they are therefore hazards to air navigation under the FAA Regulations and the otherwise applicable state and local statutory and regulatory framework establishing the IWWC’s permit process is preempted. Specifically, the Airport contends it should be allowed to take whatever steps are necessary to remove the trees without first applying for a permit, and that both IWWA and the Connecticut Environmental Protection Act (“CEPA,” codified at Conn. GemStat. §§ 22a-14 to 22a-20) are preempted as to any restriction they might otherwise impose on this activity. The Airport offers two theories of preemption. First, it argues that the state and local statutes, regulations and actions pursuant to IWWA and CEPA are impermissible intrusions upon a field of regulation which Congress (via the Federal Aviation Act of 1958 (“Aviation Act”) and the FAA Regulations promulgated thereunder) has indicated its intent to entirely occupy. Second, the Airport argues for express preemption pursuant to language in the Airline Deregulation Act of 1978 (“ADA”). The Airport sought a declaratory judgment establishing its right to cut down the trees without applying to the IWWC for a permit. It also sought to enjoin the defendants from bringing any action under state or local law to prohibit or otherwise regulate the removal of any trees constituting obstructions to air navigation. After a bench trial, the district court ruled that neither theory of preemption was established. Specifically, the district court found that, while Congress in passing the Aviation Act intended to occupy the entire field of air safety, the state and local statutes, regulations and actions in question do not intrude into that field and are therefore not field-preempted. Further, the district court found no express preemption as a result of the ADA language. The Airport timely appealed from this judgment. For the reasons stated below, we agree with the district court on all points. II. DISCUSSION Federal preemption of state law can be express or implied. See New York SMSA Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97, 104 (2d Cir.2010) (per curiam). To establish implied preemption, evidence of Congressional intent to displace state authority is required. See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). There is a rebuttable presumption against the preemption of the states’ exercise of their historic police power to regulate safety matters. See New York State Rest. Ass’n v. New York City Bd. of Health, 556 F.3d 114, 123 (2009) (citing Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 718, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985)). The Airport argues that, once a tree becomes an “obstruction” to air navigation under the FAA Regulations, the local permit process becomes ipso facto inapplicable to the Airport’s efforts to trim or remove that tree. However, it does not claim that the permit process is entirely preempted or invalidated by federal law, merely that it cannot operate so as to interfere with the removal of obstructions to air navigation. Generally, facial challenges must demonstrate that there is no possible set of conditions under which the challenged state permit process could be constitutional. See, e.g., Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 580, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987). However, this showing need not be made when a plaintiff claims that “what is preempted [ ] is the permitting process itself, not the length or outcome of that process in particular cases.” Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 644 (2d Cir.2005). On their face, the IWWA, CEPA, and the local permit process established pursuant thereto do not address issues of air safety. Nor do they prohibit removal of the trees; they merely impose a permit requirement on their removal. A proper examination of the Airport’s claim therefore requires us to consider whether federal law occupies the field of air safety, and if it does, whether the state laws and regulations intrude upon that field. “The United States Government has exclusive sovereignty of airspace of the United States.” 49 U.S.C. § 40103(a)(1). The district court took this language, as well as the overall statutory and regulatory scheme initiated by the Aviation Act, as evidence of “a clear congressional intent to occupy the entire field of aviation safety to the exclusion of state law.” Goodspeed, 681 F.Supp.2d at 201. In Air Transport Ass’n of America, Inc. v. Cuomo (ATA), 520 F.3d 218, 225 (2d Cir.2008), this Court observed that several of our sister circuits, and several district courts within our own circuit, have concluded that Congress intended to occupy the entire field of air safety and thereby preempt state regulation of that field. ATA examined evidence of Congressional “intent to centralize air safety authority and the comprehensiveness of [] regulations pursuant to that authority,” under both the Aviation Act and the ADA. Id. However, as the district court was careful to observe, ATA stopped short of formally holding that Congress intended to occupy the field of air safety. See Goodspeed, 681 F.Supp.2d at 199. Today we join our sister circuits. But concluding that Congress intended to occupy the field of air safety does not end our task. As the district court recognized, the inquiry is twofold; we must determine not only Congressional intent to preempt, but also the scope of that preemption. “The key question is thus at what point the state regulation sufficiently interferes with federal regulation that it should be deemed pre-empted[.]” Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 107, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992). We agree with the district court that although Congress intended to occupy the entire field of air safety, the state laws at issue here do not interfere with federal laws and regulations sufficiently to fall within the scope of the preempted field. Goodspeed, 681 F.Supp.2d at 201-02. The district court correctly distinguished a recent case, also from the District of Connecticut, which held that the Aviation Act impliedly preempts certain town regulatory actions. Tweed-New Haven Airport Auth. v. Town of East Haven, Conn. (Tweed), 582 F.Supp.2d 261, 267 (D.Conn.2008). There, municipal defendants sought to prevent a commercial airport from “obstruct[ing] construction of a federally-mandated, federally-funded, and state- and federally-approved” runway project intended to enhance aviation safety. Id. at 263. The local regulatory action at issue in Tweed constitutes a much more direct intrusion of local authority on the preempted field of air safety than do the regulatory actions challenged here. Unlike Tweed-New Haven Airport, Goodspeed Airport is not licensed by the FAA; it is not federally funded, and no federal agency has approved or mandated the removal of the trees from its property. Indeed, in its response to a formal inquiry from the district court in this case, the federal government disclaimed any authority to order the trees’ removal. Therefore, while in Tweed the construction project was approved, indeed required, by the federal regulatory authority, in this case there is no federal interest in the Airport’s proposed actions. Moreover, IWWA and CEPA are environmental laws that do not refer to aviation or airports. Neither statute prohibits the trimming or removal of any tree located in a protected area. Instead, the Wetlands Act requires only that Appellant obtain a permit before removing the trees in question. See Conn. Gen.Stat. § 22a-42a. Thus, Appellant’s contention that IWWA and CEPA have the impermissible “effect” of “prohibiting the removal of the obstructions” under the Aviation Act, Appellant’s Brief at 20, is unsupported. “[P]art of the preempted field is defined by reference to the purpose of the state law in question ... another part of the field is defined by the state law’s actual effect[.]” English v. Gen. Elec. Co., 496 U.S. 72, 84, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). The state laws at issue here do not enter the scope of the preempted field in either their purpose or their effect. In occupying the field of air safety, Congress did not intend to preempt the operation of state statutes and regulations like the ones at issue here, especially when applied to small airports over which the FAA has limited direct oversight. Appellant’s contention that the IWWC’s permit application process is impliedly preempted by federal law is without merit. Appellant also argues that both IWWA and CEPA are expressly preempted by language in the Aviation Act, as modified by the ADA, codified at 49 U.S.C. § 41713(b)(1): Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, rule, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart. In ATA this Court found the New York Passenger Bill of Rights expressly preempted by § 41713(b)(1): “We hold that requiring airlines to provide food, water, electricity, and restrooms to passengers during lengthy ground delays does relate to the service of an air carrier and therefore falls within the express terms of the ADA’s preemption provision.” 520 F.3d at 223. Today, by contrast, we hold that the ADA does not preempt applicable state and local environmental and land use statutes and regulations that impose permit requirements whose impact on air carriers, if any, is remote. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 390, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (cautioning that, while even indirect impact on air carriers may be preempted, state action with “tenuous, remote, or peripheral” effects on air carriers is not preempted) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). The state and local statutes, regulations and actions at issue here are neither field-preempted by the language of the Aviation Act, nor expressly preempted by the ADA. Accordingly, Appellant is obliged to observe the appropriate state procedures. III. CONCLUSION Although we hold that Congress has indicated its intent to occupy the entire field of aviation safety, the generally applicable state laws and regulations imposing permit requirements on land use challenged here do not, on the facts before us, invade that preempted field. Further, the impact on air carriers of the laws and regulations at issue here, if any, is too remote to be expressly preempted under the terms of the Airline Deregulation Act. Accordingly, the district court’s judgment of January 13, 2010 is hereby Affirmed. . Appellees contend that, while the FAA Regulations provide a definition of “obstructions,'' obstructions are not ipso facto "hazards to air navigation” absent a specific determination of that status by the FAA. We need not decide whether the FAA Regulations would preempt the state and local laws, regulations, and actions challenged here if the trees were declared hazards and their removal ordered by the FAA. Significantly, in this case the federal government renounced any intention — indeed, questioned whether it had the authority — to declare the trees hazards and/or to order their removal. . The Connecticut Environmental Protection Agency and one of its officers were also named in the complaint. The district court found that the Airport had failed to allege that the state defendants were involved in an ongoing violation of or threatening to violate federal law; accordingly, they were entitled to Eleventh Amendment immunity. Although the court urged the state defendants not to exercise the privilege, they refused to waive it and the claims against them were dismissed. Goodspeed Airport, LLC v. East Haddam Inland Wetlands & Watercourses Comm’n, 632 F.Supp.2d 185, 188, 189-90 (D.Conn.2009) (published ruling and order of dismissal). The State of Connecticut later appeared as amicus curiae. . “We review de novo a district court’s application of preemption principles.” New York SMSA Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97, 103 (2d Cir.2010) (per curiam). Findings of fact in a bench trial are reviewed for clear error; application of law to those facts is reviewed de novo. Bessemer Trust Co., N.A. v. Branin, 618 F.3d 76, 85 (2d Cir.2010). . Clarkstown discusses the three recognized forms of preemption: express preemption and the two types of implied preemption, “field” and "conflict.” These categories are not rigidly distinct; for example, it may be possible to recast held preemption as a subset of conflict preemption. English v. Gen. Elec. Co., 496 U.S. 72, 79 n. 5, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). . ATA, 520 F.3d at 225, collects the relevant circuit cases through 2008. Since then, at least one additional circuit has held that Congress intended to occupy the field of air safety. U.S. Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1326 (10th Cir.2010); see also Montalvo v. Spirit Airlines, 508 F.3d 464, 468 (9th Cir. 2007); Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d 784, 795 (6th Cir.2005); Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 367-68 (3d Cir. 1999); French v. Pan Am Express, Inc., 869 F.2d 1, 5 (1st Cir.1989). . The district court in Tweed rejected the claim that these regulatory actions were expressly preempted by the language of the Airline Deregulation Act discussed below. 582 F.Supp.2d at 268. . As the response was not the product of formal rulemaking, the district court afforded it limited Skidmore/Mead deference. See Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944); see also United States v. Mead Corp., 533 U.S. 218, 234-35, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Further, the district court confined its consideration of the response to its discussion of the Airport’s field preemption claim, as the court’s ruling on the express preemption claim depended on certain factual findings, Goodspeed, 681 F.Supp.2d at 192-98, unavailable to the federal Government. Id. at 213 n. 11. In any event, the district court explicitly noted that it would have reached the same result even had it afforded the response no deference at all. Id. at 213, 214.

Weaver's Cove Energy, LLC v. Rhode Island Coastal Resources Management Council

LYNCH, Chief Judge. The Rhode Island Coastal Resources Management Council (“CRMC”) challenges a decision by the federal district court, which has rejected two regulatory barriers CRMC imposed to plans to build a Liquified Natural Gas (“LNG”) terminal in the City of Fall River with a berth in Massachusetts coastal waters of Mount Hope Bay. Weaver’s Cove Energy, LLC (“Weaver’s Cove”) is the sponsor of the LNG terminal. Weaver’s Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 583 F.Supp.2d 259 (D.R.I.2008). The barriers, which CRMC has attempted to impose, are to necessary dredging by Weaver’s Cove in Rhode Island navigable waters, in a federal navigation channel. The Federal Energy Regulatory Commission (“FERC”) generally approved the project in 2005, subject to certain conditions. Until those conditions are met, Weaver’s Cove cannot start construction. The Commonwealth of Massachusetts, joined by the City of Fall River, has filed a brief as amicus curiae in support of CRMC. We address three main issues. The first is whether we have Article III jurisdiction to decide these matters. The second is whether the district court erred in holding that CRMC’s failure to respond within six months to Weaver’s Cove’s application for federal consistency review requires there be a presumption of concurrence in the project, pursuant to 16 U.S.C. § 1456(c)(3)(A) of the Coastal Zone Management Act of 1972 (“CZMA”). The third is whether CRMC’s use of its state law licensing program for alterations to the coast, 04 000 010 R.I.Code R. §§ 100.1, 300.1, to block the project is preempted by the Natural Gas Act (“NGA”). For the reasons set forth below, we affirm the district court’s decision. I. We first briefly explain the regulatory framework that governs this case. Central to this dispute are two federal statutes, the NGA, 15 U.S.C. §§ 717-717z, and the CZMA, 16 U.S.C. §§ 1451-66. The NGA was originally passed in the 1930s to facilitate the growth of the energy-transportation industry and requires FERC authorization for the importing of natural gas. 15 U.S.C. § 717b(a). FERC’s authority under the NGA to regulate facilities engaged in the import of natural gas has long been interpreted as “plenary and elastic,” Distrigas Corp. v. Federal Power Comm’n, 495 F.2d 1057, 1064 (D.C.Cir.1974), and courts have interpreted the NGA to preempt state regulatory authority within the scope of FERC’s jurisdiction, see, e.g., Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988). Following a 2005 amendment, the NGA explicitly grants FERC “exclusive authority to approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal.” Id. § 717b(e)(1). Parties wishing to build an LNG terminal must file an extensive application with FERC, 18 C.F.R. § 157.6, which must then consult with states regarding safety and environmental questions, 15 U.S.C. § 717b — 1(b). The NGA creates a consolidated regulatory process for approving LNG facilities that maintains the role of federal agencies and, in circumscribed areas, state agencies. It does so by limiting FERC’s exclusive authority in two ways relevant to this case. First, the NGA, except where expressly provided, does not affect “any Federal agency’s authorities or responsibilities related to LNG terminals.” Id. § 717b(e)(1) (emphasis added). In addition, the NGA explicitly states that, unless otherwise provided, it does not affect the rights of states under three federal regulatory statutes, of which only the CZMA is pertinent to this case. Id. § 717b(d)(1). The CZMA establishes the relationship between state bodies, like the Rhode Island CRMC, and federal agencies during the permitting process for LNG terminal construction projects that impact coastal zones. It provides states with a limited opportunity to review applications to ensure they are consistent with state regulations, 16 U.S.C. § 1456(c)(3)(A), and, in doing so, grants states “a conditional veto over federally licensed or permitted projects,” Weaver’s Cove, 588 F.Supp.2d at 267. That conditional veto, however, is itself subject to review. In order to conduct a consistency review, state agencies must first have obtained approval from the federal National Oceanic Atmospheric Administration (“NOAA”), a Department of Commerce agency, for the state agency’s own coastal management plan. 16 U.S.C. §§ 1454, 1455(d)-(e), 1456(c)(3)(A). Coastal management plans set forth general state polities for developing and maintaining coastal areas and, as is the case in Rhode Island, may include not only the conditions for federal consistency review but also for state licensing programs. Once a state coastal management plan has been approved, an applicant for a federal permit wishing to undertake any activity the state plan regulates must certify with the local agency that the proposed activity is consistent with the coastal management plan. Id. § 1456(c)(3)(A). In support of the application, the applicant must submit all “necessary data and information” identified in the coastal management plan. 15 C.F.R. § 930.58(a)(2). Under federal law, the state agency has thirty days from the time the application was submitted to notify the applicant and the federal agency if it takes the position that the applicant has failed to submit all of the required information. Id. § 930.60(a)(2). Importantly, the CZMA limits the time a state may conduct such a review, in order to prevent frustration of federal purposes. Whether CRMC failed to act within this limit is a key issue in this case. Once an applicant submits its consistency certification, the state agency has six months either to concur with the certification or to object if it concludes that the proposed activity is inconsistent with the coastal management plan. 16 U.S.C. § 1456(c)(3)(A). If the state agency fails to respond within six months, the state’s concurrence will be “conclusively presumed.” Id. If the application is incomplete and the state agency so informs the applicant within the required thirty-day time period, “the State agency’s six-month review period will commence on the date of receipt of the missing necessary data and information.” 15 C.F.R. § 930.60(a)(2). However, the state agency’s review of whether the application is complete “is not a substantive review of the adequacy of the information received,” and the agency’s request for clarification of the information provided or its assertion that the information is “substantively deficient” does not toll the six-month review period. Id. § 930.60(c). These rules encourage states to act quickly when reviewing applications so that no one state can delay the federal approval process. Congress was sufficiently concerned about the ability of local state agencies to delay projects that it did not use a generalized standard, such as “a reasonable period of time” as it did, for instance, in the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(3)(B), but capped the time at six months. The CZMA also limits state authority to delay or prohibit projects subject to consistency review, by providing for federal review of state agency determinations. If the state agency objects to consistency certification, the applicant may appeal the decision to the Secretary of Commerce, who can override the objection on a finding “that the activity is consistent with the objectives of this chapter or is otherwise necessary in the interest of national security.” 16 U.S.C. 1456(c)(3)(A). The Secretary’s decision, in turn, may be reviewed in federal district court. See, e.g., Millennium Pipeline Co., L.P. v. Gutierrez, 424 F.Supp.2d 168, 173-74 (D.D.C.2006). One other federal statute relevant to this case is the Rivers and Harbors Act, at section 10. 33 U.S.C. § 403. It prohibits construction or other work, such as dredging, in navigable U.S. waters without congressional authorization or a recommendation by the Army Corps Chief of Engineers as well as the Secretary of the Army’s authorization. Id. Because FERC’s exclusive authority under the NGA does not disturb the Army Corps’s authority under the Rivers and Harbors Act, 15 U.S.C. § 717b(e)(1), parties seeking FERC approval for LNG terminal proposals that include dredging in navigable waterways, like Weaver’s Cove, must also apply for approval from the Army Corps. In Rhode Island, the federally designated agency under the CZMA is the appellant, CRMC. CRMC is responsible for administering Rhode Island’s coastal management plan, the Rhode Island Coastal Resources Management Program (“CRMP”). When a party wishes to conduct an activity listed in the CRMP, such as dredging in Rhode Island, under state law, that party should obtain from the CRMC a state law license called an “Assent.” 04-000-010 R.I.Code R. § 100.1. The more extensive “Category B Assent” process under state law is required for approval of all projects that involve major alterations proposed for Rhode Island tidal waters, shoreline features, or areas contiguous with shoreline features. Id. §§ 100.1(A), (D), 300.1. If the party’s proposed listed activity is also part of a project that is subject to federal licensing, CRMC is the body tasked with providing the required federal consistency review. CRMC’s document, labeled the Federal Consistency Manual, emphasizes that although the Assent and consistency review processes may overlap, they are distinct approvals. R.I. Coastal Res. Mgmt. Council, Federal Consistency Manual 7, available at http://www.crmc.ri.gov/regulations/ Fed-Consistency.pdf. The same list of activities that require Assents also require consistency review. Id. at 12. Major alterations to the Rhode Island coastal area that trigger the more extensive Category B Assent process trigger the same level of review for consistency certifications. Id. at 8. Finally, the manual states that a grant or denial of an Assent in an application when a consistency review is ongoing constitutes a concurrence or an objection for the purposes of the review. Id. at 13. A key difference between the two forms of review is that whereas the CZMA limits consistency review through the six-month time limit, administrative review by the Secretary of Commerce, and federal judicial review, no federal statute limits how long state decisions regarding Category B Assent may take or provides for federal review. The substantive provision of the state CRMP most pertinent to this case is section 300.9(C), which requires approval by the CRMC for all dredging activities. Particularly in dispute in this case is the meaning of section 300.9(C)(7) of the CRMP, which requires that “[w]hen disposal is proposed for approved upland facilities, the applicant shall provide a letter of acceptance from that facility, unless the disposal is approved for the central landfill.” 04-000-010 R.I.Code R. § 300.9(C)(7). The CRMC also coordinates some of its responsibilities with another state agency, the Rhode Island Department of Environmental Management (“RIDEM”). Particularly relevant to this case is RIDEM’s role in identifying a list of approved upland sites for disposal of dredged material, which CRMC is responsible for incorporating into a comprehensive plan for dredged material management. R.I. Gen. Laws § 46-6.1-5. II. Weaver’s Cove proposes to build and operate a LNG terminal in Fall River. The proposed project received FERC approval in 2005, subject to certain conditions. Weaver’s Cove Energy, LLC, 112 F.E.R.C. ¶ 61,070, at 61,528 (2005). FERC found that the proposal “will promote the public interest by increasing the availability of natural gas supplies in the New England market.” Id. Under the original LNG proposal, submitted in 2003, ships carrying LNG would pass through waters in both Rhode Island and Massachusetts, traveling up the Taun-ton River to the terminal location. This has changed. According to Weaver’s Cove’s 2009 “Offshore Berth Amendment,” the proposal now calls for ships to deliver their cargo to an offshore berth in Mount Hope Bay, from which the LNG would be transported via a submerged pipeline to the onshore terminal. The offshore berth, the pipeline, and the terminal would all be located in Massachusetts. In both the original proposal and the amended version, the only planned activity in Rhode Island waters is dredging in a federal navigation channel to ensure the safe passage of the LNG tankers. That dredging is the subject of this litigation. On December 19, 2003, Weaver’s Cove filed an application, pursuant to the NGA, for FERC approval of the proposed LNG facility. FERC, as said, approved the application in 2005 subject to a number of conditions, one of which was that Weaver’s Cove was to “file ... prior to construction documentation of concurrence from the [CRMC] that the project is consistent with the Rhode Island [CRMP].” Weaver’s Cove Energy, LLC, 112 F.E.R.C. at ¶¶ 61,-550-51 (emphasis in original). Turning to state regulatory requirements, such as Category B Assent, FERC added that “state or local permits issued with respect to the jurisdictional facilities authorized herein must be consistent with the conditions in this order.” Id. at ¶ 61,-546. Although FERC encouraged Weaver’s Cove and local authorities to cooperate during local review of Weaver’s Cove’s proposal, it made clear that “this does not mean that state and local agencies, through application of state or local laws, may prohibit or unreasonably delay the construction or operation of facilities approved by this Commission.” Id. Following cross-motions for rehearing, FERC reaffirmed this order in 2006 in all respects relevant to this case. Weaver’s Cove Energy, LLC, 114 F.E.R.C. ¶ 61,058, at 61,164 (2006). This court declined then to review the conditional order on ripeness grounds. City of Fall River v. Fed. Energy Regulatory Comm’n, 507 F.3d 1, 6 (1st Cir.2007). Because the proposed dredging activities also required approval from the Army Corps under the Rivers and Harbors Act, Weaver’s Cove filed an application to the Army Corps on March 18, 2004. Dredging is a listed activity in Rhode Island’s federally approved CRMP. 04-000-010 R.I.Code R. § 300.9. On filing its application to the Army Corps, Weaver’s Cove was therefore also required by the CZMA to file a consistency certification with CRMC, which it did in July 2004. With this application, Weaver’s Cove also applied for Rhode Island’s state law license for dredging, Category B Assent. However, Weaver’s Cove informed CRMC that it believed the Assent unnecessary. Within the thirty-day window to inform applicants for concurrence that their applications are incomplete required by the CZMA, CRMC informed Weaver’s Cove by phone that its consistency certification and Category B Assent application were, in CRMC’s view, incomplete on two grounds. The validity of those grounds is at issue in this case. The first, quickly remedied by Weaver’s Cove, was that it had failed to submit the engineering plans with the stamp of a Rhode Island engineer. The second ground, at issue in this case, was that Weaver’s Cove’s application was incomplete, and so the six-month clock was not ticking, because Weaver’s Cove had failed to provide documentation, pursuant to section 300.9(C)(7) of the CRMP, that dredged materials would be accepted by “an approved upland facility].” In a letter dated August 2, 2004, Weaver’s Cove replied that because the dredged materials were to be disposed of in Massachusetts, and not in Rhode Island, section 300.9(C)(7) of the CRMP did not apply. On August 26, 2004, CRMC responded, informing Weaver’s Cove that its application was still incomplete because it failed to file a Water Quality Certificate but making no mention of the upland disposal issue. After additional communications, the parties failed to resolve the dispute. Because it claimed to lack necessary data and information, CRMC did not commence review of Weaver’s Cove’s consistency certification or its Category B assent. It still has not done so. In short, as of this date, the appellant state agency has not acted on the merits of an application which has been pending before it since July 2004. Over a year after its original application to CRMC, Weaver’s Cove made separate filings to NOAA, FERC, and the Secretary of Commerce, requesting a determination that CRMC’s concurrence be “conclusively presumed” because CRMC had failed to act on Weaver’s Cove’s application within the statutorily required six-month deadline. 16 U.S.C. § 1456(c)(3)(A). NOAA took no action, FERC concluded it did not have authority to address the issue, and the Secretary of Commerce determined that he could not review the matter without an actual objection from CRMC. This left the matter of whether CRMC’s concurrence should be conclusively presumed to the courts for resolution. Weaver’s Cove filed suit in the U.S. District Court for the District of Rhode Island on June 29, 2007. It sought declaratory and injunctive relief, claiming that the disposal information and the water quality certification, which the appellant CRMC had requested, were not “necessary data and information,” as required by the CZMA. Weaver’s Cove asserted the CZMA’s six-month deadline should not be tolled and CRMC’s concurrence should be conclusively presumed. In an amended complaint, Weaver’s Cove also argued that Category B Assent was preempted by provisions of the NGA that grant FERC “exclusive authority” in approving LNG facilities, 15 U.S.C. § 717b(e)(l), and unlawful under the dormant Commerce Clause. The district court granted summary judgment in favor of Weaver’s Cove, on both the CZMA and the NGA claims. Weaver’s Cove, 583 F.Supp.2d at 262. The court found that neither the disposal information, nor the water quality certificate were necessary data and information, and so Weaver’s Cove’s application was not incomplete. Id. at 272-73. Thus, CRMC had failed to meet the statutory deadline and its concurrence was conclusively presumed. Id. at 275. In particular, with respect to the disposal information, the court found, based on statutory interpretation and the interpretation which the other state agency of Rhode Island, RIDEM, had adopted, that the term “approved upland facilities” in section 300.9(C)(7) of the CRMP referred only to disposal facilities in Rhode Island. Weaver’s Cove, 583 F.Supp.2d at 270-75. Since Weaver’s Cove intended to dispose of the dredged material out of state (in Massachusetts) at that time, the court concluded that CRMC could not require proof that the material would be accepted. Id. The district court, acting under the NGA, also held the Category B Assent process utilized by CRMC was preempted on three grounds. First, it found the process expressly preempted by the language of 15 U.S.C. § 717b(3)(1), granting FERC “exclusive authority to approve or deny an application” to build an LNG terminal. Weaver’s Cove, 583 F.Supp.2d at 280-83. Second, the court found the assent process implicitly field preempted because “Congress clearly intended that the NGA occupy the entire field of LNG regulation.” Id. at 283-84. Finally, the district court found the Category B Assent process preempted here because it specifically conflicted with FERC’s jurisdiction to regulate LNG facilities. Id. at 284-85. The court also held that the case was not rendered moot by the changes in the project that occurred after the date Weaver’s Cove submitted its consistency certification. Id. at 275-76. It did not reach the dormant Commerce Clause question. III. A. Jurisdiction We first hold that we have jurisdiction to hear this case. CRMC does not raise any challenge to standing, mootness, or ripeness. Massachusetts, in its brief amicus curiae to this court (but not to the district court), argues broadly that there is no case or controversy here, based on standing, mootness, and lack of ripeness. Amici cannot insert new arguments, not made by a party, into a case. Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d 66, 74 n. 5 (1st Cir.2001). Nonetheless, we review standing, mootness, and ripeness in the constitutional sense to see whether we have Article III jurisdiction because we are independently obligated to do so, regardless of whether the parties raise the issue. Pagan v. Calderon, 448 F.3d 16, 26 (1st Cir.2006). For the reasons discussed below, we are satisfied we have jurisdiction. We first address standing. Massachusetts asserts that because Weaver’s Cove has not shown that a decision in their favor “will relieve a discrete injury” to them, Weaver’s Cove lacks standing. Massachusetts v. EPA 549 U.S. 497, 525, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (quoting Larson v. Valente, 456 U.S. 228, 243 n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982)) (internal quotation marks omitted). It argues that “events completely unrelated to CRMC’s regulatory processes” have prevented the project from proceeding. Massachusetts is not entirely clear in explaining what those events are, but its briefs earlier description of the project suggests it is referring to challenges Weaver’s Cove has faced in satisfying other state and federal permitting requirements. Because CRMC’s regulatory requirements do affect Weaver’s Cove’s ultimate ability to receive federal approval, we conclude that Weaver’s Cove has standing. A plaintiff wishing to establish standing must show “a concrete and particularized injury in fact, a causal connection that permits tracing the claimed injury to the defendant’s actions, and a likelihood that prevailing in the action will afford some redress for the injury.” City of Bangor v. Citizens Commc’ns Co., 532 F.3d 70, 92 (1st Cir.2008) (quoting Me. People’s Alliance & Natural Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 283 (1st Cir.2006)) (internal quotation marks omitted). The plaintiff need not show that “the defendant’s actions are the very last step in the chain of causation” for the injury. Bennett v. Spear, 520 U.S. 154, 169, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). It suffices if the plaintiff can show “injury produced by determinative or coercive effect upon the action of someone else.” Id. In this case, CRMC’s actions have directly affected the federal regulatory processes that determine whether the LNG terminal project can proceed. Consistency review is a condition for FERC approval, and FERC has stated it has no authority to address CRMC’s refusal to act. While CRMC’s inaction may not be the exclusive reason federal approval has not been granted, it is clear that failure to obtain concurrence from CRMC has a “determinative or coercive effect” on the federal agencies. Bennett, 520 U.S. at 169, 117 S.Ct. 1154. Weaver’s Cove therefore has standing to make its CZMA-related claims. In addition, Weaver’s Cove has standing to make its preemption claims because it suffers a concrete injury from Rhode Island subjecting it to a preempted state law. Even if CRMC’s concurrence in Weaver’s Cove’s consistency certification were presumed, Category B Assent would still bar LNG construction if we did not address it here. This “would impose a palpable and considerable hardship” on its project. Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 201-02, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). This case is not rendered moot by Weaver’s Cove’s failure to achieve complete regulatory approval for its original proposal or by its submission of the Offshore Berth Amendment. “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). We will only find a case moot if an intervening event “makes it impossible for the court to grant any effectual relief.” Gulf of Me. Fisherman’s Alliance v. Daley, 292 F.3d 84, 88 (1st Cir.2002) (quoting Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)) (internal quotation marks omitted). Weaver’s Cove’s efforts to obtain regulatory approval for the LNG terminal from all of the relevant actors do indeed constitute a live issue. These efforts are ongoing and the Offshore Berth Amendment represents an attempt by Weaver’s Cove to address some of the concerns that may have earlier delayed approval. While Weaver’s Cove still has conditions to meet following the amendment, Weaver’s Cove did, for example, get approval from the Coast Guard, which previously had been a hurdle. Since CRMC’s consistency certification remains a requirement of FERC and of the Army Corps, that question is clearly live. This is especially so because the Offshore Berth Amendment itself does not render moot the dispute here with Rhode Island. As the Army Corps has itself noted, the planned dredging activities in Rhode Island have not changed, even under the amendment. A decision in favor of the plaintiff in this case would provide “effectual relief’ because it would clear a barrier to achieving approval for the project. This case is also ripe. Although federal regulatory approval for the Offshore Berth Amendment is ongoing, our review of this case is neither “advisory” nor “irrelevant to the ultimate approvability of the project.” Fall River, 507 F.3d at 8. Massachusetts cites Fall River in an attempt to argue that this case will lack ripeness until the project receives authorization from several key federal agencies. But it disregards important differences in the facts and procedural background of this case. In Fall River, we held that a challenge to FERC’s conditional approval of this project was not ripe because the decision was not final until the completion of reviews by the United States Coast Guard and the Department of the Interior. Id. at 7. Because FERC’s decision was not final we could not be sure our opinion would not be advisory. Id. at 7-8. In contrast, the plaintiffs requested relief in this case would be final. CRMC’s consistency review and Category B Assent requirements would cease to be barriers to ultimate approval of the project. Another difference from Fall River is that FERC and the other relevant agencies have expressly declined to resolve the issue raised by this appeal on the grounds that they have no authority to do so. It is true that resolutions of these issues might not secure the project’s ultimate approval, but it would neither be “advisory” nor “irrelevant.” B. CZMA Consistency Review: “Conclusive Presumption of Concurrence ” We hold that CRMC’s concurrence with Weaver’s Cove’s dredging plans must be conclusively presumed under 16 U.S.C. § 1456(c)(3)(A). We affirm the district court. Weaver’s Cove, 583 F.Supp.2d at 270-75. A district court may grant summary judgment on a finding that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “An issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,’ and a fact is material if it has the ‘potential to affect the outcome of the suit.’ ” Velázquez-García v. Horizon Lines of P.R., Inc., 473 F.3d 11, 15 (1st Cir.2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000)) (citation omitted). On appeal, we review a district court’s grant of summary judgment de novo. Torrech-Hernandez v. General Elec. Co., 519 F.3d 41, 46 (1st Cir.2008). We review the district court’s holding that, in this case, a letter certifying acceptance of dredged material, as listed in section 300.9(C)(7) of the CRMP, did not constitute necessary data and information within the meaning of 15 C.F.R. § 930.58(a)(2) because Weaver’s Cove did not intend to dispose of the waste in Rhode Island. Weaver’s Cove, 583 F.Supp.2d at 271-72. If, as CRMC contends, the letter is necessary data and information required by the CRMP, CRMC is not compelled to commence reviewing the consistency certification until Weaver’s Cove provides it. 15 C.F.R. § 930.60(a)(2). The six-month deadline for presumed concurrence would be tolled until that time. Id. If, on the other hand, the letter is not necessary data and information, as the district court found, the six-month period from Weaver’s Cove’s submission of the consistency certification in July 2004 has clearly expired, and we are required to find CRMC’s concurrence presumed. 16 U.S.C. § 1456(c)(3)(A). We affirm the district court’s conclusion. As the district court noted, the state CRMP does not define “approved upland facilitfy].” Weaver’s Cove, 583 F.Supp.2d at 271. However, other Rhode Island laws have shed light on the language’s meaning. Rhode Island’s Marine Waterways and Boating Facilities Act of 2001 (“Waterways and Boating Act”), R.I. Gen. Laws §§ 46-6.1-1 to -10, and associated regulations, set forth a comprehensive system regulating dredging activities and disposal of dredged materials in the state. The district judge relied on these regulations to conclude that facilities outside of Rhode Island are not among the “approved upland facilities” from which the CRMP requires a letter of acceptance. Weaver’s Cove, 583 F.Supp.2d at 271-72. We agree with the district court that the language of section 300.9(C)(7) of the CRMP can only be read to cover facilities located in the state of Rhode Island because the state’s regulatory framework for dredging only provides for the identification of “approved upland facilities” within the state. We begin with the Rhode Island statutes that govern regulation of dredging in the state. Rhode Island law makes the CRMC responsible for “preparing], adopting] and maintaining] ... a comprehensive plan for dredged material management for dredging that takes place in the coastal zone.” R.I. Gen. Laws. § 46-6.1-5(a). But the same statute delegates to RIDEM the task of “adopting] by rule a list of upland sites and types of areas suitable for beneficial use and disposal of dredged materials.” Id. § 46-6.1-5(b). This list is then “incorporated in the [CRMC’s] comprehensive plan for dredged material management.” Id. The Waterways and Boating Act does not define “upland sites,” but it does define “[ujpland areas” as “areas that are not in the coastal zone.” Id. § 46-6.1-4(16). Thus, while both agencies may be responsible for interpreting whether “upland disposal facilities” can include out of state disposal facilities, only RIDEM is charged with approving upland sites. RIDEM has in turn promulgated its own Rules and Regulations for Dredging and the Management of Dredged Material (“Dredging Regulations”) pursuant to the Waterways and Boating Act. R.I. Dept, of Envtl. Mgmt., Rules and Regulations for Dredging and the Management of Dredged Material § 2, available at http:// www.dem.ri.gov/pubs/regs/regs/water/dred 0203.pdf [hereinafter “R.I. Dredging Regulations”]. These regulations are also intended to be consistent with the CZMA, id., and must be implemented according to a written protocol jointly adopted by CRMC and RIDEM, id. § 3. Among the stated purposes of these regulations is to “[ijdentify and list upland sites suitable for beneficial use and/or disposal of dredged material,” id. § 1.5, and, as the district court noted, the Dredging Regulations “apply to all aspects of dredging proposed in marine waters of the State of Rhode Island,” id. § 3. The Dredging Regulations do not contain an express definition for “approved upland facilities,” but they do define “Upland Areas” more narrowly than the corresponding term in the Waterways and Boating Act, R.I. Gen. Laws § 46-6.1-4(16), as “[a]ll areas of the state that are not in the coastal zone.” R.I. Dredging Regulations § 4.20 (emphasis added). Since RIDEM is tasked with approving upland disposal facilities, R.I. Gen. Laws § 46-6.1-5(b), and it only approves upland facilities within the state of Rhode Island, R.I. Dredging Regulations § 4.20, it follows that the “approved upland facilities” referred to by section 300.9(C)(7) of the CRMP should be read to be facilities within the state of Rhode Island. “To hold otherwise would render the C[R]MP’s specific language a nullity.” Weaver’s Cove, 583 F.Supp.2d at 272. In any event, appellant has not pointed to any regulatory process for the approval of upland sites outside of Rhode Island, nor has it produced a list of approved facilities outside of the state. Absent language in Rhode Island law to the contrary, we presume state laws, like this one, not to have extraterritorial effect. Cf. Carnero v. Boston Sci. Corp., 433 F.3d 1, 7 (1st Cir.2006). CRMC responds that it has an interest in confirming that material dredged from its coast is properly disposed, regardless of the ultimate location, and that the district court improperly relied on another agency’s interpretation of the Waterways and Boating Act, which it administers. Citing language from both the Waterways and Boating Act, R.I. Gen. Laws § 46-6.1-3(1), and the CRMC’s organic statute, id. § 46-23-l(e), that designate CRMC as the “lead agency” for purposes of regulating dredging activities, CRMC argues that federal courts must defer to its broader interpretation of its own regulations for its own purposes. It explains that although RI-DEM may, in its limited role of approving disposal sites, only be concerned with upland facilities within Rhode Island, CRMC is more broadly concerned with ensuring the proper disposal of dredged material. CRMC cites no authority in support of its view, and in this context, the view is untenable. Since for the purposes of CZMA consistency review, we are only concerned with the requirements of the CRMP, CRMC’s argument that it is entitled to deference in its interpretation of the Waterways and Boating Act is inappo-site. We are concerned only with its interpretation of section 300.9(C)(7) of the CRMP, and complementary regulatory schemes to the extent they shed light on its meaning. It is true, as CRMC points out, that federal agency interpretations of their own regulations (when authorized by Congress) are “controlling unless ‘plainly erroneous or inconsistent with the regulation.’ ” Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). However, even if we applied that standard here, CRMC cannot satisfy it because the plain language of section 300.9(C)(7) of the CRMP calls for “approved upland facilities” (emphasis added). Thus, even if upland facilities can be interpreted to include facilities outside of Rhode Island, CRMC has not pointed to any regulatory scheme that deals with the approval of out-of-state facilities or even a list of approved out-of-state facilities. The only regulatory scheme for approving upland facilities is that administered by RI-DEM, and CRMC’s interpretation of its regulation is therefore clearly erroneous. This construction of state law also permits us to avoid an issue of whether a different construction would violate federal law. As noted, see supra note 1, an individual state may not purport to undertake out of state regulation for consistency review purposes without getting NOAA’s consent. 15 C.F.R. § 930.154(e). C. Preemption of State Category B Assent to Dredging by Section S of the Natural Gas Act and by FERC’s Conditional Approval We review the district court’s finding that CRMC’s state law licensing program for coastal dredging, the Category B Assent process, is preempted by the NGA, at least on the facts here. At stake is whether CRMC may still delay the project based on Weaver’s Cove’s failure to satisfy section 300.9(C)(7) of the CRMP or other CRMP requirements, despite our conclusion that concurrence in Weaver’s Cove’s consistency certification should be presumed. Our standard when reviewing a district court’s finding of preemption is de novo. Fitzgerald v. Harris, 549 F.3d 46, 52 (1st Cir.2008); SPGGC, LLC v. Ayotte, 488 F.3d 525, 530 (1st Cir.2007). While the district court found the Category B Assent process preempted on a number of grounds, Weaver’s Cove, 583 F.Supp.2d at 279-85, we affirm for the narrowest reason, that of conflict preemption. In its order, FERC analyzed Weaver’s Cove’s proposed dredging activities in both Rhode Island and Massachusetts, assessed the environmental impact the dredging would have and compared it with alternatives, and analyzed the effect on the water and wildlife, land use, recreation, ship traffic, and air quality. Weaver’s Cove Energy, LLC, 112 F.E.R.C. at ¶ 61,540 (discussing environmental issues reviewed and adopting the findings of FERC’s Final Environmental Impact Statement (“FEIS”)); Office of Energy Projects, Fed. Energy Regulatory Comm’n, Docket No. CP04-36-000, Weaver’s Cove LNG Project Final Environmental Impact Statement (May 2005) [hereinafter “Weaver’s Cove FEIS ”]. Further, FERC concluded that the dredging was part of the construction and operation of the terminal project. Thus, Category B Assent clearly conflicts with FERC’s “exclusive authority,” as exercised here, to license the “siting, construction, expansion, or operation” of LNG terminals. 15 U.S.C. § 717b(e)(1). To simplify a complex area of law, preemption arguments are generally divided into three categories. Fitzgerald, 549 F.3d at 52. The first, express preemption, results from language in a statute revealing an explicit congressional intent to preempt state law. Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996). The second, field preemption, is that Congress may implicitly preempt a state law by creating a pervasive scheme of regulation. Fitzgerald, 549 F.3d at 52; N. Natural Gas Co. v. Iowa Utils. Bd., 377 F.3d 817, 823 (8th Cir.2004) (holding a state’s site-specific environmental review field preempted because FERC has authority under the NGA to consider environmental issues). The third category is conflict preemption. In this category, state law is “pre-empted to the extent it actually conflicts with federal law, that is, when compliance with both state and federal law is impossible, or when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. at 53 (quoting Good v. Altria Group, Inc., 501 F.3d 29, 47 (1st Cir.2007)). Weaver’s Cove asks us to find preemption under the first two grounds. It also stresses the district court’s application of a field preemption test set forth in a NGA preemption case. Weaver’s Cove, 583 F.Supp.2d at 285 (citing Schneidewind, 485 U.S. at 301, 108 S.Ct. 1145). We prefer to decide on the narrowest grounds: conflict preemption. In this case, FERC has interpreted the dredging activities in the Weaver’s Cove’s project, including those in Rhode Island, to be within its preemptive jurisdiction. See Fitzgerald, 549 F.3d at 55 (“The proposition that federal agency action, taken pursuant to its interpretation of a statute, may itself preempt is quite correct.”). CRMC does not argue that the proposed dredging is not a part of the LNG terminal’s “siting, construction, ... or operation” under 15 U.S.C. § 717b(e)(1), although Massachusetts, as amicus, does. In its original order, FERC extensively reviewed the dredging as part of the overall terminal construction and operational plan. Weaver’s Cove Energy, LLC, 112 F.E.R.C. at ¶ 61,535-36, 61,545, 61,550. Here, FERC carefully reviewed the very dredging Rhode Island seeks to further regulate and, after considering environmental impacts, authorized the project. Id. at 61,-546. The FEIS, adopted by reference in the FERC order, id. at 61,540, found that the dredging was necessary “to accommodate the passage of LNG ships” to the facility, Weaver’s Cove FEIS, at 2-25 (May 2005), and that it would be impossible to “reduce, the volume or extent of dredging and still satisfy the objectives of the project at the proposed site,” id. at 3-70. Thus, FERC concluded that the dredging was part of the construction and the operation of the terminal facility. That ruling is final and binding because no objections were made to FERC’s findings on these points in the parties’ request for rehearing. Further, the dredging is in an approved federal navigation channel. By finding the dredging activities were part of the construction and operation of the terminal facility, FERC has interpreted the Rhode Island dredging at issue in this case to be within its jurisdiction. Thus, the Category B Assent process utilized by Rhode Island clearly collides with FERC’s delegated authority and is preempted. FERC made this clear in its order regarding Weaver’s Cove’s application, which stated that state agencies could not use state law to “prohibit or unreasonably delay the construction or operation of facilities approved by this Commission.” Weaver’s Cove Energy, LLC, 112 F.E.R.C. at ¶ 61,546. FERC affirmed this point on rehearing, in response to the City of Fall River’s challenge. Weaver’s Cove Energy, LLC, 114 F.E.R.C. at ¶ 61,185-86. CRMC’s handling of the Category B Assent process both conflicts with and is an obstacle to the authority FERC has asserted in this case. Unlike CZMA consistency review, which allows the CRMC to review the dredging proposals, limited by a six-month deadline and administrative and federal judicial review, the Category B Assent process contains no such limitations, and to this date the appellant has not processed this application or reached any decision on the merits. CRMC has taken the position that it must carry out the Category B Assent process concurrently with the consistency review, and because the consistency review has not commenced, it cannot address the application for Category B Assent. Thus, even if concurrence were presumed, CRMC’s position is that the Category B Assent process would itself independently block full licensing of the facility. This is clearly an application of state law that delays or has the potential to prohibit the ultimate licensing and construction of the LNG terminal. Weaver’s Cove Energy, LLC, 112 F.E.R.C. at ¶ 61,546. Further, CRMC’s two bites at the apple approach necessarily conflicts with the federal process for and interest in defining what is necessary data. Because CRMC’s actions here conflict with FERC’s jurisdiction and the limits for consistency review, it is preempted. D. Rivers and Harbors Act Finally, CRMC argues that the federal Rivers and Harbors Act saves its state Category B Assent process from preemption. Pointing to language in the NGA qualifying FERC’s exclusive authority to the extent that it affects law “related to” the authority of other federal agencies, 15 U.S.C. § 717b(e)(1), CRMC argues that the NGA preserves not only the Army Corps’s role in approving dredging activities but also the entire body of law “related to” that role. Since the Army Corps’s approval process under the Rivers and Harbors Act does not preempt state licensing schemes, CRMC argues that the savings clause in the NGA must therefore protect Category B Assent. These arguments, assuming arguendo they were preserved in the district court, are meritless. The language of § 717b(e)(1) is plainly aimed at preserving the authority of federal agencies and not that of state agencies like CRMC. CRMC’s argument that its state licensing program is “related to” the authority of FERC is also untenable. As CRMC points out in other parts of its brief, CRMC’s authority to require Category B Assent derives from Rhode Island’s status as a sovereign, whereas the Army Corps’s authority derives from the federal government. The fact that the Rivers and Harbors Act does not itself preempt Category B Assent is therefore irrelevant to the NGA’s preemptive effect. Under its exclusive authority, FERC considers the dredging in Rhode Island to be a part of the LNG construction. FERC, as required by the NGA, has provided CRMC an opportunity to review the project through CZMA consistency review. CRMC cannot now avoid presumed concurrence by relying on a nearly identical state law licensing procedure. The district court’s judgment is affirmed. . A state is prohibited from undertaking interstate consistency review of activities occurring in a different state unless the state requests and obtains interstate review authority from NOAA. 15 C.F.R. § 930.154(e). . A state may reopen review of a certification if the applicant makes a "major amendment” to the project. 15 C.F.R. §§ 930.51(b)-(c), (e), 930.66(b). That provision is inapplicable here. . LNG, produced by cooling natural gas to a liquid state, has less volume and so can be more economically transported. The terminal proposed by Weaver’s Cove would receive imported LNG from tanker ships, regasify it, and inject it into the U.S. natural gas grid. According to Weaver’s Cove, the proposed terminal would supply fifteen percent of New England’s "peak day" natural gas demand in 2010. Weaver’s Cove, 583 F.Supp.2d at 262-63, 262 n. 2. . The original proposal to the Army Corps set forth a Massachusetts disposal site but also considered offshore disposal at a federal ocean disposal site approved by the Environmental Protection Agency and the Army Corps. . Because CRMC has not itself challenged the district court's finding with respect to mootness, we do not address CRMC’s challenge to the jurisdictional questions raised in footnote 18 of the district court’s opinion. In re Williams, 156 F.3d 86, 90 (1st Cir.1998) ("[F]ederal appellate courts review decisions, judgments, orders, and decrees — not opinions, factual findings, reasoning, or explanations.”). . The Army Corps also requires Weaver's Cove to submit verification that its application to CRMC is complete before it can complete its review. . We affirm the district court's holding that the Offshore Berth Amendment does not affect CRMC’s consistency review. Weaver’s Cove, 583 F.Supp.2d at 275-78. That FERC is reviewing the Offshore Berth Amendment is irrelevant and does not moot this appeal regarding findings by a Rhode Island agency. What effect that amendment may have on dredging activities in Massachusetts is not at issue before us. . We note that Weaver's Cove no longer intends to dispose of the dredged materials at any “upland facility]” and instead now plans to dispose of the waste at an offshore site. As CRMC points out in its reply brief, this was not the case at the time of the original consistency review application. Weaver’s Cove at that time planned to dispose of the waste at its Fall River Facility. We do not address this change, because it occurred after the time concurrence would have been presumed, and neither party has raised it on appeal. . Thus, in order to prevent a hypothetical “trash barge to nowhere scenario,” in which Rhode Island is forced to dispose of dredged material that no one else will accept, CRMC is entitled to demand proof that Weaver's Cove's proposed upland disposal facility will accept it. Of course, this is not a barge to nowhere situation, because Weaver's Cove has identified a disposal site subject to the jurisdiction of other agencies that play a role under the CZMA. . We also reject CRMC's argument that it deserves deference under Mountain Rhythm Resources v. Fed. Energy Regulatory Comm'n, 302 F.3d 958 (9th Cir.2002). That case involved review of a federal agency's decision to adopt a state's interpretation of its coastal management plan under the arbitrary and capricious standard. Id. at 966. Here we are reviewing the state agency's interpretation itself. . This provision of the NGA was not in effect until August 8, 2005, after FERC issued its order on July 15, 2005. However, FERC’s interpretation of its own preemptive authority under the NGA to regulate construction of LNG facilities was clearly articulated before this provision came into force. Weaver’s Cove Energy, LLC, 112 F.E.R.C. at ¶ 61,546. Further, FERC reaffirmed its approval of Weaver's Cove’s application after the provision became effective. Weaver’s Cove Energy, LLC, 114 F.E.R.C. at ¶ 61,185-86. . Rather CRMC argues that Section 10 of the River and Harbors Act saves Category B Assent from preemption by the NGA, a contention we consider below. . The parties never raised objections to these findings in their request for rehearing to FERC and thus courts have no jurisdiction to review this determination by FERC. 15 U.S.C. § 717r(a) (“No proceeding to review any order of the Commission shall be brought by any person unless such person shall have made application to the Commission for a rehearing thereon.”). . CRMC and Massachusetts also incorrectly argue that the district court based its Category B Assent preemption on the doctrine of federal navigational servitude and that a finding of preemption under the servitude was improper because Congress failed to invoke it expressly within the NGA. The argument misreads the district court's holding and is irrelevant. Congress’s power to preempt state regulation here emanates not only from its power to regulate navigation but also from its power to regulate commerce itself. U.S. Const. art. I, § 8, cl. 3; 43 U.S.C. § 1314(a) ("The United States retains all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, [and] navigation see also First Iowa Hydro-Elec. Coop. v. Federal Power Com., 328 U.S. 152, 182, 66 S.Ct. 906, 90 L.Ed. 1143 (1946) ("The states possess control of the waters within their borders, subject to the acknowledged jurisdiction of the United States under the Constitution in regard to commerce and the navigation of the waters of rivers.’ ”) (quoting United States v. Appalachian Elec. Power Co., 311 U.S. 377, 404, 61 S.Ct. 291, 85 L.Ed. 243 (1940)). In its reply brief, CRMC raises a new argument that while Congress could preempt commercial regulation under the Commerce Clause, it could not displace Rhode Island's property rights without invoking the navigational servitude doctrine. Because arguments raised for the first time in reply briefs are procedurally barred, we need not consider this contention. United States v. Hall, 557 F.3d 15, 20 n. 3 (1st Cir.2009). In any event, the argument is wrong. The Supreme Court has held that state property interests in land may not preempt federal statutes enacted pursuant to the Commerce Clause. Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 283-84, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977).

Fitzgerald v. Harris

LYNCH, Chief Judge. This case raises the issue of whether a Maine statute governing the management of a state-administered river, the Allagash Wilderness Waterway (“AWW”), Me.Rev. Stat. Ann. tit. 12, § 1882, is preempted by certain sections of a federal statute, the Wild and Scenic Rivers Act (“WSRA”), 16 U.S.C. § 1271 et seq. Plaintiffs Charles FitzGerald and Kenneth Cline (collectively “FitzGerald”) are avid canoeists who sued Willard R. Harris, Director of the Maine Bureau of Parks and Lands, seeking a declaration that the Maine statute is preempted by federal law, as well as injunctive relief against the enforcement of the Maine statute. Their essential complaint is that the provisions of Maine’s statute maintaining certain bridges and public access points to the AWW destroy the “wild” character of the river. There have been, to our knowledge, no prior federal courts of appeals decisions squarely involving claims of preemption of state statutes by the WSRA, which was enacted in 1968. The district court granted Harris’s motion to dismiss under Fed.R.Civ.P. 12(b)(6), adopting the magistrate judge’s recommended decision holding that the Maine statute is not preempted by federal law. We affirm. I. A. The Federal Statutory Structure Congress enacted the WSRA to “preserve ... selected rivers or sections thereof in their free-flowing condition[,] to protect the water quality of such rivers[,] and to fulfill other vital national conservation purposes.” 16 U.S.C. § 1271. Congress described the eligibility criteria for inclusion in the system of protected rivers as follows: A wild, scenic or recreational river area eligible to be included in the system is a free-flowing stream and the related adjacent land area that possesses one or more of the values referred to in section 1271 of this title. Every wild, scenic or recreational river in its free-flowing condition, or upon restoration to this condition, shall be considered eligible for inclusion in the national wild and scenic rivers system and, if. included, shall be classified, designated, and administered as one of the following: (1) Wild river areas — Those rivers or sections of rivers that are free of im-poundments and generally inaccessible except by trail, with watersheds or shorelines essentially primitive and waters unpolluted. These represent vestiges of primitive America. (2) Scenic river areas — Those rivers or sections of rivers that are free of impoundments, with shorelines or watersheds still largely primitive and shorelines largely undeveloped, but accessible in places by roads. (3) Recreational river areas- — -Those rivers or sections of rivers that are readily accessible by road or railroad, that may have some development along their shorelines, and that may have undergone some impoundment or diversion in the past. Id. § 1273(b). Rivers may be designated for protection under the WSRA in one of two ways: (1) by act of Congress under section 2(a)(i); or (2) by application of a state to the Secretary of the Interior under section 2(a)(ii). Id. § 1273(a). Those rivers included under section 2(a)(ii) “are to be permanently administered as wild, scenic or recreational rivers by an agency or political subdivision of the State or States concerned.” Id. Those two methods for inclusion create a system of both state and federally-administered rivers. State-administered rivers are those rivers designated after a state applies to the federal Secretary of the Interior under section 2(a)(ii). Federally-administered rivers are those established by Congress under section 2(a)(i). A list of federally-administered rivers is contained in 16 U.S.C. § 1274. When Congress creates a federally-administered river, it designates the federal department charged with managing the river. See, e.g., id. § 1274(a)(1) (designating the Middle Fork of the Clearwater River in Idaho as a federally-administered river to be managed by the Secretary of Agriculture); id. § 1274(a)(8) (designating a portion of the Wolf River in Wisconsin as a federally-administered river to be managed by the Secretary of the Interior). A single river may have zones that are state-administered and others that are federally-administered. E.g., id. § 1274(a)(9) (designating a section of the Lower Saint Croix River as federally-administered and providing that the governors of Wisconsin and Minnesota may apply to have another segment designated as state-administered). The AWW is entirely a state-administered river. The WSRA, like many cooperative federalism statutes, uses carrots and sticks to encourage states to comply with its objectives. The carrots include three categories of benefits: protection, assistance, and funding. The protections are primarily contained in 16 U.S.C. § 1278, entitled “Restrictions on water resources projects.” Those protections: (1) prohibit construction projects licensed by the Federal Energy Regulatory Commission on or directly affecting a designated river; (2) prevent all United States agencies or departments from assisting by any means in the construction of any water resources project or from recommending any water resources project that would have “a direct and adverse effect on the values for which such river was established”; and (3) require prior notice to certain secretaries of federal departments before requesting authorization or appropriations for water resources projects and give special notice to Congress of the conflict between the project and the values protected by the WSRA. See id. § 1278(a). Executive agencies may also assist the states in managing their rivers as set forth in 16 U.S.C. § 1282, entitled “Assistance to State and local projects.” The Secretary of the Interior must encourage and assist the states “in formulating and carrying out their comprehensive statewide outdoor recreation plans” to consider the “needs and opportunities for establishing State and local wild, scenic and recreational river areas.” Id. § 1282(a). The Secretaries of the Interior and Agriculture and the heads of other federal agencies “shall assist, advise, and cooperate” with the states “to plan, protect, and manage river resources,” which may be accomplished through “written agreements or otherwise.” Id. § 1282(b)(1). Further assistance under the WSRA may be made available to volunteers and volunteer organizations in the form of federal “facilities, equipment, tools, and technical assistance.” Id. § 1282(b)(3). The authority of federal agencies to negotiate agreements regarding the management of protected rivers is, however, notably restricted: the issuance of a permit or other authorization cannot be conditioned on such an agreement. Id. § 1282(b)(4). As for financial assistance to participating states, the Secretary of the Interior must assist the states in proposals for financial assistance under the Water Conservation Fund Act of 1965. Id. § 1282(a). The Secretaries of the Interior and Agriculture or other federal agency heads may enter into agreements for “limited financial or other assistance to encourage participation in the acquisition, protection, and management of river resources.” Id. § 1282(b)(1). Yet despite this financial assistance, Congress has been clear that the states must fund the administration of their own designated rivers. Id. § 1273(a) (“Each river designated under clause (ii) shall be administered by the State or political subdivision thereof without expense to the United States other than for administration and management of federally-owned lands.”). There are also sticks to encourage state compliance. Congress chose not to provide the stick of an explicit cause of action to enforce the goals of the WSRA against the states. But one available stick is the denial of the benefits described above. Another is that federal agencies, such as the Army Corps of Engineers, may refuse to grant needed permits for bridge construction where they consider a river not to be in compliance. There is a third stick-the removal of a state-administered river from the system of protected rivers, either by Congress or the relevant federal agencies. The Departments of the Interi- or and Agriculture have recognized the power of the Secretary of the Interior to reclassify or withdraw a mismanaged section 2(a)(ii) river from the wild and scenic rivers system. See U.S. Dep’ts of the Interior & Agrie., Guidelines for Evaluating Wild, Scenic and Recreational River Areas Proposed for Inclusion in the National Wild and Scenic Rivers System Under Section 2, Public Law 90-512 6 (1970) (“Future construction of such structures that would have a direct and adverse effect on the values for which that river area was included in the national system ... would not be permitted. In the case of rivers added to the national system pursuant to Sec. 2(a)(ii), such construction could result in a determination by the Secretary of the Interior to reclassify or withdraw the affected river area from the system.”). Fitz-Gerald denies that there is any such power in the Secretary of the Interior, arguing that only Congress may downgrade or remove rivers. We need not resolve this dispute to decide this case. B. The AWW’s Inclusion Under the WSRA The AWW is approximately eighty-five miles long and connects a series of forty lakes and ponds, as well as numerous streams and brooks in northern Maine. It has provided a wilderness canoeing experience for centuries. Henry David Thoreau canoed the river during July 1857. He wrote of his experience: It is wonderful how well watered this country is.... Generally, you may go in any direction in a canoe, by making frequent but not very long portages. You are only realizing once more what all nature distinctly remembers here, for no doubt the waters flowed thus in a former geological period, and instead of being a lake country, it was an archipelago. H.D. Thoreau, The Maine Woods 251-52 (1864). Before Congress passed the WSRA, Maine took independent steps to protect the AWW through the Allagash Wilderness Waterway Act of 1966, now codified at Me.Rev.Stat. Ann. tit. 12, § 1871 et seq. The Act defines an eighty-five mile stretch of the Allagash River as the AWW, id. § 1872(12), and establishes a “restricted zone” extending between a minimum of 400 feet and maximum of 800 feet in width around the watercourse to “preserve, protect and develop the maximum wilderness character of the watercourse,” id. § 1873(3). The Act leaves administration of the AWW largely to Maine’s Bureau of Parks and Lands. Id. § 1874. The Bureau is empowered to enact rules and regulations governing the AWW to preserve “the natural beauty, historic integrity and character of the Allagash Wilderness Waterway.” Id. § 1803. Before 2006, the state Act further provided that “[t]he bureau may determine the location of access points, control stations and watercourse crossings within the waterway.” Id. § 1882 (2005). In this suit, FitzGerald challenges the amendments made to § 1882 in 2006. The AWW was included for protection under section 2(a)(ii) of the WSRA in 1970. On April 10, 1970, then-Maine Governor Kenneth M. Curtis requested that then-Secretary of the Interior Walter J. Hickel designate a portion of the AWW as a state-administered “wild” river under section 2(a)(ii) of the WSRA. On May 4, 1970, Governor Curtis asked Secretary Hickel to include the entire AWW under the WSRA and submitted a report on the AWW in support of the state’s application. On July 13, 1970, Secretary Hickel “determined that the entire Allagash Wilderness Waterway meets the requirements for classification as a wild river area under the provisions of the Wild and Scenic Rivers Act,” 35 Fed.Reg. 11,525, 11,525 (July 17, 1970), and approved the AWW “as a wild river area to be administered by the State of Maine,” id. at 11,526. In the Notice of Approval, Secretary Hickel recognized that there were three small dams on the AWW, six established areas for water aircraft traffic, various private logging roads, and trails for snowmobile use along the AWW. Id. With respect to public access to the AWW, Secretary Hickel noted: Public access over private roads will be permitted to and along a portion of Te-los Lake at the southern end of the waterway and to the northern boundary at West Twin Brook. Existing private roads within the waterway which have been developed for logging purposes will be closed to public use. These private roads do not create a substantial impact on the overall wilderness character of the river. Id. As to bridges over the AWW, Secretary Hickel stated that “[tjemporary bridges for short-term logging purposes may be authorized by the State. Any such crossing is designed to provide minimum impact on the wilderness character of the waterway.” Id. Secretary Hickel also found that “[tjhere is no substantial evidence of man’s intrusion within the 400- to 800-foot restricted zone adjoining the watercourse.” Id. After the 1970 designation of the AWW as a state-administered wild river, the Maine Park and Recreation Commission, and later the Maine Bureau of Parks and Lands, continued to administer the AWW under the terms of the state Allagash Wilderness Waterway Act of 1966. On April 26, 2006, Maine amended part of the Alla-gash Wilderness Waterway Act, the relevant section of which is now codified at Me.Rev.Stat. Ann. tit. 12, § 1882, to provide for the maintenance of six seasonal motor vehicle access points to the edge of the AWW, id. § 1882(1), five seasonal motor vehicle access points to short trails leading to the AWW, id. § 1882(2), and six permanent bridges over the AWW, id. § 1882(4). The motor vehicle access points and bridges described in the statute existed before the AWW’s designation as a “wild” river under the WSRA, and thus the challenged state law maintains what was there before the designation and allows for the reconstruction of certain preexisting bridges. On February 1, 2007, FitzGerald filed a federal suit against Harris, the state official charged with managing the AWW, alleging that Me.Rev.Stat. Ann. tit. 12, § 1882, as amended in 2006, is preempted by the WSRA. Specifically, FitzGerald contended that the Maine statute would “degrade the value which caused the AWW to be included in the National Wild and Scenic Rivers System” and “erode[ ] the AWW’s wild condition,” contrary to the mission of the WSRA. On March 19, 2007, Harris moved to dismiss the case, arguing that the suit was barred by the Eleventh Amendment, that the WSRA did not preempt the Maine statute, and that Fitz-Gerald’s requested injunctive relief was not a permissible remedy under the Supremacy Clause. On August 20, 2007, a magistrate judge recommended that the case be dismissed under Fed.R.Civ.P. 12(b)(6) because the Maine statute was not preempted by the WSRA. On February 11, 2008, the district court affirmed the magistrate judge’s recommended decision and granted Harris’s motion to dismiss. FitzGerald timely appealed. II. We review de novo the district court’s dismissal under Fed.R.Civ.P. 12(b)(6). Thomas v. Rhode Island, 542 F.3d 944, 948 (1st Cir.2008). We assume the truth of all well-pleaded facts in the complaint, drawing all reasonable inferences in the plaintiffs’ favor. Id. To survive a motion to dismiss, the complaint must allege “a plausible entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1967, 167 L.Ed.2d 929 (2007); see also N.J. Carpenters Pension & Annuity Funds v. Biogen Idec Inc., 537 F.3d 35, 44 (1st Cir.2008). The preemption issues raised are ones of law, not of fact, and are amenable to resolution by a motion to dismiss the complaint. Plaintiffs have shown no plausible entitlement to relief. Under the Supremacy Clause, “the Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2. State law may be preempted by federal law in three ways. First, Congress can include “language in the federal statute that reveals an explicit congressional intent to pre-empt state law.” Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996). The Maine statute challenged here, Me. Rev.Stat. Ann. tit. 12, § 1882, is not preempted expressly by the WSRA. Nothing in the text of the federal statute expressly preempts state law regulation of rivers administered under section 2(a)(ii) of the WSRA, and FitzGerald agrees that there is no express preemption. Second, Congress may implicitly preempt state law by “creating] a scheme of federal regulation ‘so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.’ ” Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). This form of implied preemption is often called “field preemption.” SPGGC, LLC v. Ayotte, 488 F.3d 525, 530 (1st Cir.2007). There is no field preemption here-FitzGerald admits that the states play a significant role in the management of section 2(a)(ii) rivers. FitzGerald instead relies upon the third category of preemption, “conflict preemption.” Under that theory, “state law is ... pre-empted to the extent it actually conflicts with federal law, that is, when compliance with both state and federal law is impossible, or when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Good v. Altria Group, Inc., 501 F.3d 29, 47 (1st Cir.2007) (quoting California v. ARC Am. Corp., 490 U.S. 93, 100-01, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989)). Conflict preemption is particularly difficult to show when “the most that can be said about the state law is that the direction in which state law pushes [behavior] is in general tension with broad or abstract goals that may be attributed to ... federal laws.” L.H. Tribe, American Constitutional Law § 6-26, at 487 (2d ed.1988); see also Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 222-23, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983); Commonwealth Edison Co. v. Montana, 453 U.S. 609, 634, 101 S.Ct. 2946, 69 L.Ed.2d 884 (1981) (recognizing that “general expressions of ‘national policy’ ” in a federal statute were insufficient to preempt state law). FitzGerald asserts that there are two types of conflicts: first, he contends that the state statute generally stands as an obstacle to accomplishing the purposes of the federal statute; second, he argues that it is impossible to comply with both the Maine statute and the language of 16 U.S.C. § 1273(b)(1) that “wild” rivers are to be “generally inaccessible except by trail.” He argues that the state law’s requirement that there be eleven seasonal motor vehicle access points and six permanent bridges violates both the federal statute and the expressed intent of the 1970 federal approval of the AWW under the WSRA that the state authorize only temporary bridges for short-term logging purposes and that there be only two points of overland public access, located at either end of the AWW. A. Preemption by the WSRA FitzGerald’s broader preemption argument rests on the policy embodied by the WSRA in 16 U.S.C. § 1271 that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations. FitzGerald asserts that “the outstandingly remarkable value for the AWW is that it provides a wild condition for a wilderness canoe experience.” He contends that the Maine statute threatens the wilderness condition of the AWW by permitting motor vehicle traffic close to the AWW and by installing six permanent bridges over the watercourse. Specifically, this level of accessibility, FitzGerald argues, is contrary to the WSRA’s definition of a “wild” river area, which the statute specifies is one that is “generally inaccessible except by trail.” Id. § 1273(b)(1). Further, FitzGerald claims that the management plan embodied in Me.Rev. Stat. Ann. tit. 12, § 1882 is contrary to the state’s duty under the WSRA “to protect and enhance” the special characteristics of the AWW that caused it to be included within the system of protected rivers. 16 U.S.C. § 1281(a) (“Each component of the national wild and scenic rivers system shall be administered in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values.”). He argues that Maine’s obligation “to protect and enhance” the wilderness character of the AWW is perpetual because the WSRA charges the states with “permanently” administering section 2(a)(ii) rivers as wild and scenic rivers. Id. § 1273(a)®. These three arguments, based on Fitz-Gerald’s reading of the policy set forth in § 1271, on the management obligations in § 1281(a), and on the “permanently” language in § 1273(a)®, do not establish preemption. FitzGerald reads these phrases in isolation from the specific command in the text that the administration of section 2(a)® rivers is to be “by an agency or political subdivision of the State or States concerned.” Id. § 1273(a)® (emphasis added). The WSRA does not mandate that states adopt management plans for section 2(a)(ii) rivers which meet any specific standard. Instead, the statute embraces flexibility as to management plans, recognizing that “[mjanagement plans for any such component may establish varying degrees of intensity for its protection and development, based on the special attributes of the area.” Id. § 1281(a). FitzGerald attempts to buttress his reading of the term “permanently” by pointing to Department of the Interior guidelines, which use the term “must”: The values which cause the river to be qualified for the National System must be assured of permanent protection and management by or pursuant to State statute.... [TJhe State must adopt a program of action which will provide permanent protection for the natural and cultural qualities of the river and adjoining lands. 45 Fed.Reg. 63,148, 63,149 (Sept. 23,1980). But earlier departmental guidelines permit the reclassification or withdrawal of section 2(a)® rivers. See U.S. Dep’ts of the Interior & Agrie., Guidelines for Evaluating Wild, Scenic and Recreational River Areas Proposed for Inclusion in the National Wild and Scenic Rivers System Under Section 2, Public Law 90-512 6 (1970). Thus, the rivers are not necessarily a permanent part of the system. Maine is obligated to administer the AWW “in such manner as to protect and enhance the values which caused it to be included” in the system of protected rivers. Id. But the statute leaves the determination of how best to administer the AWW to meet those objectives to Maine. There is at most a disagreement between FitzGer-ald and the state regarding how best to administer the AWW to meet those ends. That sort of disagreement does not give rise to a viable claim of preemption. The cases that FitzGerald cites as supporting his preemption argument all involve claims that federal authorities are violating the WSRA in the management of federally-administered rivers. See, e.g., Wilderness Watch v. U.S. Forest Serv., 143 F.Supp.2d 1186 (D.Mont.2000); Or. Natural Desert Ass’n v. Singleton, 75 F.Supp.2d 1139 (D.Or.1999). Those cases involve challenges to permits issued by federal agencies allowing certain usages of land along federally-administered rivers and are reviewed under the Administrative Procedure Act (“APA”). See, e.g., Wilderness Watch, 143 F.Supp.2d at 1203. Fitz-Gerald argues that this caselaw must be applied to state-administered rivers if the WSRA is to have any meaning, otherwise section 2(a)(ii) rivers will receive a lesser level of protection. But that argument would require us to ignore the clear text of the federal statute and its recognition of state authority over state-administered wild rivers. See 16 U.S.C. § 1273(a)(ii). Further, the WSRA defines a limited role for the federal government, a role primarily of cooperation with and assistance to the states in the management of section 2(a)(ii) rivers. See id. § 1281(e) (“The States and their political subdivisions shall be encouraged to cooperate [with federal agencies] in the planning and administration of components of the system which include or adjoin State or County-owned lands.”); id. § 1283 (“The Secretary of the Interior, the Secretary of Agriculture, ... or other department or agency head shall, where appropriate, enter into written cooperative agreements with the appropriate State or local official for the planning, administration, and management of Federal lands which are within the boundaries of any rivers for which approval has been granted under section 1273(a)(ii) of this title.”); cf. id. § 1282(a) (“The Secretary of the Interior shall encourage and assist the States to consider ... needs and opportunities for establishing State and local wild, scenic and recreational river areas.”). The WSRA does address preemption, but in ways distinctly unhelpful to FitzGer-ald. Specific provisions of the WSRA limit any federal displacement of a state’s authority over its section 2(a)(ii) rivers. Even on federally-administered rivers (unless within a national park or monument), state jurisdiction over hunting and fishing laws is unaffected by the WSRA. Id. § 1284(a). With respect to state water rights, the WSRA is neither a claim nor denial on the part of the federal government of state jurisdiction over the waters of any included river. Id. § 1284(d). Moreover, the WSRA expressly disclaims preemption of a state’s right to access-the beds of component rivers. Id. § 1284(f). And the WSRA specifically prohibits federal condemnation of state-owned lands. Id. § 1277(a)(1). The WSRA’s overarching respect for a state’s authority over its own designated rivers refutes FitzGerald’s claim of conflict preemption. B. Preemption by Federal Agency Action FitzGerald falls back on the proposition that the Maine statute is nonetheless preempted by federal agency action, even if not by the statute. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). The proposition that federal agency action, taken pursuant to its interpretation of a statute, may itself preempt is quite correct. But a review of the interpretation of the WSRA by the relevant agencies further undercuts FitzGerald’s preemption claim. FitzGerald relies on correspondence from the National Park Service (“NPS”) to the Army Corps of Engineers (“ACE”) regarding Maine’s request for permits from the ACE relating to the replacement of the Henderson Brook Bridge, one of the six bridges mentioned in Me.Rev.Stat. Ann. tit. 12, § 1882(4). We will assume, in FitzGerald’s favor, that such correspondence can be pertinent federal regulatory action. In a letter dated June 29, 2007, Chysandra Walter, NPS Acting Northeast Regional Director, stated: [T]he State’s 1970 application for federal designation, as well as the applicable state statutes upon which that application and today’s management are based, highlight the affirmative responsibility of. the State to manage the Allagash Wilderness Waterway for wilderness recreational opportunities, and to affirmatively develop “maximum wilderness character.” The State of Maine ... is responsible for managing and administering the Al-lagash Wilderness Waterway in a manner consistent with the Wild and Scenic Rivers Act. In addition to issues associated with Section 7 (federally assisted water resource development projects) and Section 2 (classification) that have been noted above, all administering agencies have the responsibility to further the purposes of the Act as articulated in Section 1 (purposes) and Section 10 (management direction). Later, NPS Northeast Regional Director Dennis R. Reidenbach wrote in a letter dated November 15, 2007: As a river designated as a component of the National Wild and Scenic Rivers System under Section 2(a)(ii) of the Act (16 U.S.C. § 1273(a)(ii)), the State of Maine is responsible for administering the Allagash Wilderness Waterway in “such manner as to protect and enhance the values which cause it to be included in [the System]” pursuant to Section 10 of the Act (16 U.S.C. § 1281(a)). FitzGerald argues that these statements from the NPS form an independent basis for preemption. But these statements provide no stronger basis for preemption than the text of the WSRA itself. The sections of the NPS letters upon which FitzGerald relies do little more than recite the text and structure of the WSRA. Indeed, the record of federal regulatory action under the WSRA undercuts Fitz-Gerald’s preemption argument. Even before the issue of the permit for the Henderson Brook Bridge arose, the guidelines issued by the Departments of the Interior and Agriculture recognized that the management policies for rivers under the WSRA may vary depending upon whether the river is state-or federally-administered. See 47 Fed.Reg. 39,454, 39,459 (Sept. 7, 1982) (“Managing agencies will implement [the principles from section 10(a) of the WSRA] to the fullest extent possible under their general statutory authorities and existing Federal, State and local laws. Because of these limitations, however, implementation of the principles may differ among and within components of the system depending on whether the land areas involved are federally, State, locally or privately owned.”). Reports from the Interagency Wild and Scenic Rivers Coordinating Council also recognize that the WSRA is deferential to the states regarding the management of section 2(a)(ii) rivers. See, e.g., Inter-agency Wild & Scenic Rivers Coordinating Council, Protecting Resource Values on Non-Federal Lands 4 (1996), available at http://www.rivers.gov/publications/non-federal-lands-protection.pdf (“[T]here are no explicit standards for resource protection on non-federal lands in the [WSRA] or Interagency Guidelines.”); Interagency Wild & Scenic Rivers Coordinating Council, A Compendium of Questions and Answers Relating to Wild and Scenic Rivers 42 (1997), available at http://www.rivers. gov/publications/q-a.pdf (“Although the [WSRA] includes provisions encouraging the protection of river values through state and local government land use planning, there are no binding provisions on local governments.”). Moreover, as to the AWW itself, the federal regulatory action regarding the ACE permit for the Henderson Brook Bridge contradicts FitzGerald’s claim of preemption. Indeed, Reidenbach’s November 15, 2007 letter, on which FitzGer-ald relies, went on to say: “The State of Maine is responsible for deciding how to best administer the Allagash Wilderness Waterway to protect and enhance the values which caused it to be designated under Section 10 of the Act.” He determined that “[bjeeause the bridge existed at the time of the Waterway’s classification as ‘wild,’ we conclude that replacing the bridge as proposed by the Bureau will not degrade the Waterway’s ‘wild’ character as compared to the condition at the time of designation (and existing presently),” noting that the WSRA “does not require that a water resources project enhance the wilderness character of a wild river area.” Additionally, on October 9, 2007, the ACE issued a permit to Maine for the work relating to the Henderson Brook Bridge without noting any objections from any of the federal agencies concerned. Because both the NPS and the ACE approved Maine’s plans for the Henderson Brook Bridge, it cannot be said that the Maine statute authorizing the permanent bridges over the AWW is preempted by federal agency action. III. The judgment of dismissal is affirmed. . We bypass the questions regarding whether a cause of action for preemption is available to these plaintiffs and of the limits imposed on the remedial power of the federal courts by the Eleventh Amendment. Instead, we engage in a merits-based analysis, which avoids any potential constitutional issues. Parella v. Ret. Bd. of the R.I. Employees’ Ret. Sys., 173 F.3d 46, 53-57 (1st Cir.1999). . The jurisdictional doctrine of "complete preemption” has no application here. "Complete preemption is a short-hand for the doctrine that in certain matters Congress so strongly intended an exclusive federal cause of action that what a plaintiff calls a state law claim is to be recharacterized as a federal claim.” Fayard v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 45 (1st Cir.2008) (emphasis in original); see also Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). . The access points described in Me.Rev.Stat Ann. tit. 12, § 1882(1) allow vehicles to drive up to the edge of the watercourse. The access points in § 1882(2) to the short trails leading to the AWW permit vehicles within the following distances of the watercourse: 100 feet at Bissonette Bridge; 40 feet at Ramsey Ledge Campsite; 20 feet at Finley Bogan; and 10 feet at John's Bridge. Vehicles may also drive up to the water's edge at Indian Stream. . State administration does not necessarily make section 2(a)(ii) rivers any less protected than federally-administered rivers. States have a strong incentive to manage their rivers in a manner consistent with their designation because, as discussed above, poor stewardship of a state-administered river could cause a state to lose its benefits of protection, assistance, and funding under the WSRA. Further, FitzGerald is free to take his claims to the political branches of the state government in Maine and argue for greater protection for the AWW. . FitzGerald could have challenged the ACE permit under the APA but did not.

Ten Taxpayer Citizens Group v. Cape Wind Associates, LLC

LYNCH, Circuit Judge. This appeal is an early round in the legal battle over whether a commercial wind energy farm may be built in Nantucket Sound. In October 2002, Ten Taxpayer Citizens Group and several additional plaintiffs (together, Ten Taxpayer) filed a lawsuit in Massachusetts state court to prevent Cape Wind Associates from erecting a 197-foot data collection tower in Nantucket Sound. The complaint alleged that Massachusetts state courts had jurisdiction over the project and that Cape Wind had failed to obtain the necessary permits under state law. Cape Wind removed the action to federal court and Ten Taxpayer moved to remand. After denying the motion to remand, the district court dismissed the complaint on August 19, 2003. On appeal, Ten Taxpayer argues that the district court was obligated to remand the case to state court for lack of federal subject-matter jurisdiction. Ten Taxpayer also challenges the court’s dismissal of the complaint. We affirm. I. The facts underlying this case are essentially undisputed. Where the parties disagree, we accept as true the well-pleaded factual allegations in the plaintiffs’ complaint, drawing all reasonable inferences in their favor. Soto-Negron v. Taber Partners I, 339 F.3d 35, 38 (1st Cir.2003). Cape Wind is a limited liability corporation based in South Yarmouth, Massachusetts. Its goal is to construct a commercial windmill farm on Horseshoe Shoals, a shallow area of Nantucket Sound more than three miles offshore. The proposed windmill farm includes at least 130 industrial wind turbines, each 470 feet tall. If it is completed as presently envisioned, the facility will spread across 28 square miles of Nantucket Sound and will be visible from shore. The project is the first of its kind in North America. To construct the wind farm, Cape Wind needs extensive meteorological and oceanographic data concerning conditions on Horseshoe Shoals. For that purpose, Cape Wind in late 2001 announced plans to build a “scientific measurement device station” (SMDS) on Horseshoe Shoals. Intended as a temporary facility, the SMDS was designed to collect data for five years. It would consist of a data tower rising approximately 200 feet in the air, supported by three steel pilings driven 100 feet into the seabed. Together with its tripodal support structure, the tower would occupy about 900 square feet of ocean surface. On August 19, 2002, the United States Army Corps of Engineers issued a permit to Cape Wind under § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., for construction of the SMDS. Cape Wind neither sought nor obtained permits for the SMDS project under Massachusetts law. A few weeks later, the Coast Guard issued a public notice that construction of the data tower would commence on or about October 11, 2002. Construction was briefly delayed when Ten Taxpayer obtained a temporary restraining order from a state court in a related lawsuit. Ten Taxpayer voluntarily dismissed that suit, however, and the temporary restraining order lapsed by its own terms. On October 27, 2002, Cape Wind began construction of the SMDS. It is now complete and in operation. Ten Taxpayer filed this action in Barnstable Superior Court on October 16, 2002, shortly before construction of the data tower began. In its complaint, Ten Taxpayer acknowledged that the SMDS site is more than three miles from the nearest Massachusetts shoreline and that, accordingly, the location falls under the jurisdiction of the federal government. Nevertheless, Ten Taxpayer contended, Cape Wind could not build the SMDS without regulatory approval from Massachusetts because Congress has ceded to Massachusetts the power to regulate any activity affecting fishing in Nantucket Sound. Under the Massachusetts laws regulating fisheries and fish habitats, administrative approval is required for structures erected on the seabed. Because Cape Wind did not obtain such approval, Ten Taxpayer alleged, the SMDS project was in violation of Massachusetts law. Ten Taxpayer sought an injunction blocking construction of the SMDS or, if the court would not enjoin construction, a $25,000 fine for every day that the SMDS remained on Horseshoe Shoals. Cape Wind immediately removed the case to federal court, asserting that federal jurisdiction was proper because Ten Taxpayer’s complaint, on its face, states a federal question' — i.e., whether Congress has in fact delegated to Massachusetts the necessary regulatory authority over Nantucket Sound. In the alternative, Cape Wind argued that regardless of what Ten Taxpayer actually pleaded in its complaint, deciding Ten Taxpayer’s state claims would require resolution of a substantial question of federal law, cf. Almond v. Capital Props., Inc., 212 F.3d 20, 23 (1st Cir.2000) (describing so-called Smith jurisdiction), and that federal law completely preempts state law beyond three miles from the coast, cf. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6-7, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003) (describing the “complete preemption” doctrine). Ten Taxpayer moved to remand. On November 14, 2002, the district court denied the motion to remand without opinion. Ten Taxpayer appealed that order, but this court dismissed the appeal on the ground that it was not a final judgment. Meanwhile, on November 6, 2002, Cape Wind filed a motion in federal court to dismiss Ten Taxpayer’s complaint. Cape Wind attached to its motion two letters from the Massachusetts Department of Environmental Management indicating that, at least under Mass. Gen. Laws ch. 132A, Massachusetts does not claim regulatory authority over activities on Horseshoe Shoals. Cape Wind also argued that Ten Taxpayer lacks standing to assert the Commonwealth’s regulatory interest in offshore lands. On August 19, 2003, the district court granted Cape Wind’s motion to dismiss. Ten Taxpayers Citizen Group v. Cape Wind Assocs., LLC, 278 F.Supp.2d 98, 101 (D.Mass.2003). The court concluded that although Congress did delegate to Massachusetts the power to regulate fishing in Nantucket Sound, that grant did not confer on the Commonwealth a general warrant to “polic[e] the entire Nantucket Sound for environmental disturbances that could impact fishing.” Id. Massachusetts had no authority over the construction of the SMDS, and thus no state permits were required. Id. Ten Taxpayer filed this timely appeal. II. This case implicates the complex and rather obscure body of law that divides regulatory authority over Nantucket Sound between the state and federal governments. Because that body of law is essential to our disposition of this appeal, we summarize it briefly. A. Regulation of the Seabed and Attached Structures As a general rule, “paramount rights to the offshore seabed inhere in the Federal Government as an incident of national sovereignty.” United States v. Maine (Maine I), 420 U.S. 515, 524, 95 S.Ct. 1155, 43 L.Ed.2d 363 (1975). In a series of cases beginning in 1947, the Supreme Court established that the United States enjoys exclusive title in the lands underlying the sea, regardless of a state’s historical claims to the waters off its coast. See United States v. Texas, 339 U.S. 707, 719-20, 70 S.Ct. 918, 94 L.Ed. 1221 (1950); United States v. Louisiana, 339 U.S. 699, 705-06, 70 S.Ct. 914, 94 L.Ed. 1216 (1950); United States v. California, 332 U.S. 19, 29-39, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947). Together, those eases established that the “control and disposition” of the seabed is “the business of the Federal Government rather than the States.” Maine I, 420 U.S. at 522, 95 S.Ct. 1155. That background rule, however, has been modified by Congress in several significant respects. Most importantly, Congress in 1953 passed the Submerged Lands Act (SLA), 43 U.S.C. § 1301 et seq., which grants to the states full title to the seabed within three geographical miles of their shores. See 43 U.S.C. §§ 1301, 1311. Moreover, Congress expressly recognized that three-mile line as the official seaward boundary of the coastal states. Id. § 1312. Shortly thereafter, however, Congress enacted the Outer Continental Shelf Lands Act of 1953 (OCSLA), 43 U.S.C. § 1331 et seq. A major purpose of the OCSLA was to specify that federal law governs on the "outer Continental Shelf"-defined as all submerged lands under U.S. sovereign control lying seaward of the three-mile boundary, see 43 U.S.C. § 1331(a)-and on any fixed structures attached to the outer Continental Shelf. Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 355, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969); see also 43 U.S.C. § 1332 (declaring it to be "the policy of the United States that . the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition"). The OCSLA makes the Constitution, laws, and civil and political jurisdiction of the United States fully applicable to the outer Continental Shelf. 43 U.S.C. § 1333(a)(1). It also establishes nationwide rules for the leasing and development of natural resources in the seabed outside of state territory. Id. § 1337. Further, the OCSLA provides a federal cause of action for any person aggrieved by a violation of those rules, id. § 1349(a)(1), and grants the federal district courts jurisdiction to hear such cases, id. § 1349(b). It is, in short, a sweeping assertion of federal supremacy over the submerged lands outside of the three-mile SLA boundary. See id. § 1332 (declaring it to be "the policy of the United States that . the outer Continental Shelf is a vital national resource reserve held by the Federal Government for the public" (emphasis added)). In 1975, the Supreme Court confirmed this broad understanding of the OCSLA in Maine I. The United States had brought an original complaint in the Supreme Court against thirteen states bordering the Atlantic Ocean, alleging that each state had claimed some right or title in the outer Continental Shelf that was inconsistent with federal interests. 420 U.S. at 516-17, 95 S.Ct. 1155. In reply, the defendant states (including Massachusetts) had denied the United States’s title in the outer Continental Shelf, asserted a variety of historical claims to the seabed beyond the SLA’s three-mile boundary, and urged the Court to overrule its decisions in California, Louisiana and Texas. Id. at 517-19, 95 S.Ct. 1155. The Supreme Court ruled for the United States, reaffirming that “paramount rights” in the seabed belong to the federal government as national sovereign. Id. at 524, 95 S.Ct. 1155. The SLA, the Court acknowledged, had transferred title to the states in a narrow band of the seabed. But that statute did not alter the federal government’s rights outside of that narrow band. Id. at 526, 95 S.Ct. 1155. On the contrary, the Court explained, Congress in the OCSLA had “emphatically implemented its view that the United States has paramount rights to the seabed beyond the three-mile limit.” Id. B. Regulation of Fishing and Marine Fisheries With the framework for regulating the seabed thus settled, Congress in 1976 enacted the Magnuson (now Magnuson-Ste-vens) Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq. Like the OCSLA, the Magnuson-Ste-vens Act asserts federal control over the waters outside of the three-mile limit of state jurisdiction. The Act creates a “national framework for conserving and managing marine fisheries.” S.Rep. No. 104-276, at 2 (1996), U.S.Code Cong. & Admin.News 1996 at 4073, 4074 -(describing the history and purposes of the Act). It claims for the federal government “exclusive fishery management authority” in outer Continental Shelf waters within and beyond the United States’s “exclusive economic zone,” which extends approximately 197 nautical miles seaward from the three-mile boundary of state jurisdiction. See 16 U.S.C. § 1811. Within that exclusive economic zone, the Act further claims for the United States “sovereign rights ... over all fish, and all Continental Shelf fishery resources.” Id. § 1811(a); see also id. § 1801(c)(1) (declaring Congress’s intent “to maintain without change the existing territorial or other ocean jurisdiction of the United States for all purposes other than the conservation and management of fishery resources”). At the same time, the Magnuson-Ste-vens Act establishes that the states enjoy the power to regulate fishing activities within their borders, including within the three-mile SLA boundary: “[Njothing in this chapter shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries.” 16 U.S.C. § 1856(a)(1). By' so providing, Congress “confirmed state jurisdiction over fisheries within a State’s internal waters and, for coastal states, out to' the three-mile limit.” Davrod Corp. v. Coates, 971 F.2d 778, 786 (1st Cir.1992); see also Massachusetts ex rel Div. of Marine Fisheries v. Daley, 170 F.3d 23, 25 (1st Cir.1999) (Magnuson-Stevens Act, with limited exceptions, does not apply within state territorial waters). C. Federal v. State Jurisdiction in Nantucket Sound Nantucket Sound, where the disputed tower has been built, presents special difficulties in distinguishing the respective spheres of state and federal jurisdiction. Nantucket Sound is almost completely enclosed by Massachusetts's territorial sea; only at the extreme eastern end of the Sound does a channel of federal water approximately one mile wide connect it to the open ocean. But the Sound is a large body of water, and its center portion-including the site of Cape Wind's data tower on Horseshoe Shoals-is more than three miles from any coast. Despite that fact, Massachusetts in the early 1970s took the position that all of Nantucket Sound, including Horseshoe Shoals, is within Massachusetts’s territorial jurisdiction under the doctrine of “ancient title.” The Supreme Court rejected that claim in United States v. Maine (Maine II), 475 U.S. 89, 106 S.Ct. 951, 89 L.Ed.2d 68 (1986), holding that the Commonwealth did not inherit title to the Sound from the British Crown. Id. at 103, 106 S.Ct. 951. After Maine II, it is incontrovertible that Cape Wind’s data tower is located on the outer Continental Shelf, outside of Massachusetts’s territorial jurisdiction. 43 U.S.C. § 1331(a). But there is a complication. In 1984-while the Maine II litigation was pending-Congress passed a bill defining all of Nantucket Sound to be within the "jurisdiction and authority" of Massachusetts "[filor the purposes of' the Magnuson-Stevens Act. See Pub.L. No. 98-623, § 404(4), 98 Stat. 3394, 3408 (Nov. 8, 1984) (codified at 16 U.S.C. § 1856(a)(2)(B)). In Davrod Corp. v. Coates, supra, this court held that § 1856(a)(2)(B) "expressly confirms" Massachusetts's power to regulate the length of fishing vessels in Nantucket Sound. See 971 F.2d at 786. In this case, Ten Taxpayer contends that the same provision authorizes Massachusetts to regulate the construction of Cape Wind's data tower, which Ten Taxpayer claims has the potential to affect fishing and fish habitats. III. A. Removal With that background in mind, we turn to Ten Taxpayer’s arguments on appeal. The first question is whether the district court should have remanded this case to the Barnstable Superior Court for lack of federal subject-matter jurisdiction. Our review is de novo. Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 33 (1st Cir.1998). Removal is permitted under 28 U.S.C. § 1441 in civil actions over which the district courts have “original jurisdiction.” The Supreme Court has interpreted that requirement to bar removal unless the state action could have been filed in federal court in the first instance. Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 33, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002); Okla. Tax Comm’n v. Graham, 489 U.S. 838, 840, 109 S.Ct. 1519, 103 L.Ed.2d 924 (1989) (per curiam); see also BIW Deceived v. Local S6, 132 F.3d 824, 830 (1st Cir.1997). Here, the most obvious bases for federal subject-matter jurisdiction are lacking: the parties are nondi-verse, and Ten Taxpayer’s complaint does not (at least on its face) assert a cause of action based on federal law. The question, accordingly, is whether any of several alternative bases for subject-matter jurisdiction applies. We reject the primary argument for removal offered by Cape Wind, but find removal proper on a different ground. 1. Delegation of Regulatory Authority Under the Magnusom-Stevens Act Cape Wind first relies on federal preemption under the Magnuson-Stevens Act. It argues that Ten Taxpayer’s claims “arise under” federal law, and thus support removal under § 1441, because Ten Taxpayer cannot prevail without showing that Congress in fact granted to Massachusetts the authority to regulate on Horseshoe Shoals. This, Cape Wind argues, constitutes a “federal question” on the face of Ten Taxpayer’s well-pleaded complaint under 28 U.S.C. § 1331. We disagree. In this posture, the contention that federal law does not authorize Ten Taxpayer’s claims is simply a federal preemption defense available to Cape Wind. It is hornbook law that a federal defense does not confer “arising under” jurisdiction, regardless whether that defense is anticipated in the plaintiffs complaint. Beneficial Nat’l Bank, 539 U.S. at 6, 123 S.Ct. 2058; Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908). That is generally true even where the asserted defense is the preemptive effect of a federal statute. Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (well-pleaded complaint rule may bar removal even where the only question for decision is the viability of a federal preemption defense). Cape Wind argues that the case at bar is distinguishable from an ordinary case involving a federal preemption defense because the question is not whether Congress precluded state regulation, but whether it affirmatively permitted it. The Supreme Court rejected that precise argument in Gully v. First Nat’l Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). In Gully, a state tax collector sued to collect taxes from a national bank. Id. at 111, 57 S.Ct. 96. The bank tried to remove the case, arguing that if the state government had the power to collect taxes from a national bank, it enjoyed that power only to the extent conferred by federal statute. Id. at 112, 57 S.Ct. 96. Therefore, the bank argued, removal was proper because the state tax collector necessarily relied on’ federal law in bringing the suit. Id. The Supreme Court rejected that reasoning: The argument ... proceeds on the assumption that, because permission is at times preliminary to action, the two are to be classed as one. But the assumption will not stand.... Here, the right to be established is one created by the state. If that is so, it is unimportant that federal consent is the source of state authority. To reach the underlying law we do not travel back so far. By unimpeachable authority, a suit brought upon a state statute does not arise under an act of Congress or the Constitution of the United States because prohibited thereby. With no greater reason can it be said to arise thereunder because permitted thereby. Id. at 116, 57 S.Ct. 96 (citations omitted). The same reasoning applies here. No matter how the argument is framed, Cape Wind’s contention that Massachusetts has no power to regulate on Horseshoe Shoals does not support removal. 2. Federal Incorporation of State Law on the Outer Continental Shelf For an entirely different reason, however, we hold that Ten Taxpayer’s claims do arise under federal law. That is because Congress has explicitly incorporated state law on the outer Continental Shelf as federal law: To the extent they are applicable and not inconsistent with this subchapter ..., the civil and criminal laws of each adjacent State, now in effect or hereinafter adopted ... are declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf.... All of such applicable laws shall be administered and enforced by the appropriate officers and courts of the United States. 43 U.S.C. § 1333(a)(2) (emphasis added). Interpreting this provision, the Supreme Court has held that “federal law is ‘exclusive’ in its regulation of this area, and ... state law is adopted only as surrogate federal law.” Rodrigue, 395 U.S. at 357, 89 S.Ct. 1835; see also Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 480, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981) (“All law applicable to the Outer Continental Shelf is federal law, but to fill the substantial ‘gaps’ in the coverage of federal law, OCS-LA borrows the ‘applicable and not inconsistent’ laws of the adjacent States as surrogate federal law.”). The consequence for Ten Taxpayer’s complaint is clear. The SMDS is a “fixed structure! ] erected” on the “subsoil and seabed of the outer Continental Shelf’ in territory adjacent to Massachusetts. As a result, the Massachusetts statutes and regulations at issue in this case are, by federal statute, treated as federal law to the extent that they apply on Horseshoe Shoals. See Union Texas Petroleum Corp. v. PLT Engineering, Inc., 895 F.2d 1043, 1047 (5th Cir.1990). In its supplemental brief, Ten Taxpayer opposes this interpretation of the OCSLA. It contends that § 1333(a)(2) merely specifies the rule of decision that should apply in cases brought under 43 U.S.C. § 1349(b)(1), the provision that grants the district courts subject-matter jurisdiction to hear cases arising from certain activities on the outer Continental Shelf. Moreover, Ten Taxpayer says, the OCSLA is predominantly concerned with oil and gas exploration on the outer Continental Shelf, and the Act’s incorporation of state law must be understood in that context. These arguments are unfounded. The text of § 1333(a)(2) is unequivocal: on the seabed of the outer Continental Shelf and on any fixed structures attached thereto, the “civil and criminal laws of each adjacent State ... are declared to be the law of the United States.” No reference is made to actions brought under § 1349(b)(1). On the contrary, Congress’s explicit reference to state criminal laws belies any suggestion that § 1333(a)(2) merely defines the rule of decision for civil actions brought under § 1349. And Congress left no doubt that it expected the federal courts to have control over the administration of adopted state laws on the outer Continental Shelf. See § 1333(a)(2) (“All such applicable laws shall be administered and enforced by the appropriate officers and courts of the United States.”). Likewise, nothing in § 1333(a)(2) limits the incorporation of state law to activities involved in exploring for oil and gas. Nor is there any reason to infer such a limitation, as Congress had good reason to adopt state law in its entirety (except where inconsistent with federal law). Federal law is interstitial by its nature, and no other body of law applies on the outer Continental Shelf. So rather than legislate for every conceivable circumstance that might arise, Congress simply incorporated state law, thereby simultaneously retaining federal control over the outer Continental Shelf and ensuring that a comprehensive body of substantive law will be available to resolve disputes. See Gulf Offshore, 453 U.S. at 480, 101 S.Ct. 2870; Chevron Oil Co. v. Huson, 404 U.S. 97, 103, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); Rodrigue, 395 U.S. at 357, 89 S.Ct. 1835. We hold that Ten Taxpayer’s claims, though ostensibly premised on Massachusetts law, arise under the “law of the United States” under § 1333(a)(2). A federal question thus appears on the face of Ten Taxpayer’s well-pleaded complaint. See 28 U.S.C. § 1331. Accordingly, the case was properly removed. Id. § 1441(b); see Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 351 (5th Cir.1999) (allowing removal because the plaintiffs state statutory claim was incorporated as federal law under the OCSLA); Hodges v. Shell Oil Co., No. Civ. A. 97-1573, 1997 WL 473809, at *3-*5 (E.D.La. Aug. 19, 1997) (same). B. Dismissal of Ten Taxpayer’s Complaint Having determined that the case was properly removed to federal court, we turn to the question whether the district court properly dismissed Ten Taxpayer’s complaint under Fed.R.Civ.P. 12(b)(6). Once again, our review is de novo. Peña-Borrero v. Estremeda, 365 F.3d 7, 11 (1st Cir.2004). The district court dismissed the complaint on the ground that the Magnuson-Stevens Act did not grant to the Commonwealth sufficiently broad authority to regulate the construction of a tower in federal waters in Nantucket Sound. See Ten Taxpayers, 278 F.Supp.2d at 100-01 (“Congress did not delegate its complete sovereign authority over the pocket of federal waters in Nantucket Sound to the Commonwealth, but only that part necessary to establish consistent fishing regulations throughout the Sound.”). On appeal, the parties devote considerable attention to the same question. Ten Taxpayer says that by placing Nantucket Sound under the “jurisdiction and authority” of Massachusetts “for the purposes of’ the Magnu-son-Stevens Act, see 16 U.S.C. § 1856(a)(2), Congress must have intended to empower the Commonwealth to regulate activities on the seabed of Nantucket Sound that, like the SMDS, have the potential to affect fishing. Cape Wind responds, inter alia, that the “purposes” of the Magnuson-Stevens Act do not include regulation of structures attached to the seabed. We frame the issue differently. Whatever Congress meant by its reference to “the purposes of’ the Magnuson-Stevens Act in § 1856(a)(2), the Massachusetts statutes at issue here are available on the outer Continental Shelf in any event as surrogate federal law, provided they are not inconsistent with other applicable federal law. 43 U.S.C. § 1333(a)(2). So the critical question for this court is not whether Congress gave Massachusetts the authority to regulate on Horseshoe Shoals. Rather, we must decide (1) whether the Massachusetts statutes in question apply, by their own terms, to activities on Horseshoe Shoals; and (2) if they do apply, whether their application to Cape Wind’s construction-of the SMDS would be inconsistent with federal law. We conclude that Ten Taxpayer’s complaint falters on both grounds. 1. Scope of the Asserted Massachusetts Statutes First, we are extremely doubtful that the Massachusetts statutes on which Ten Taxpayer relies apply to the SMDS site. Obviously, no permit was required for the SMDS if Massachusetts has not purported to regulate activities on that site. Ten Taxpayer asserts claims under three Massachusetts statutes: Mass. Gen. Laws chapters 91,130, and 132A. On our reading of Massachusetts law, none of those statutes applies to the erection of a tower on Horseshoe Shoals. In Count I of its complaint, Ten Taxpayer asserts that Cape Wind failed to comply with Mass. Gen. Laws ch. 130. Ten Taxpayer is correct that chapter 130, which regulates fishing and marine fisheries in Massachusetts, applies broadly to “all marine fisheries and fish within the jurisdiction of the commonwealth.” Id. § 1. Ten Taxpayer’s claim, however, arises under § 16, which is considerably more narrow: “Any occupation under this chapter of tide waters or any work done therein, shall be subject to the pertinent [permitting and licensing] provisions of chapter ninety-one.” Significantly, the term "tide waters" is not defined in chapter 130 or in the implementing regulations, and there are no published Massachusetts cases interpreting § 16. Ten Taxpayer argues that "tide waters" embraces all waters "subject to the rise and fall of the tides"-a definition that, it says, includes Horseshoe Shoals, where Coast Guard records indicate that the sea depth varies by as much as three feet between high and low tides. In our view, that interpretation is too broad. Massachusetts cases referring to “tide waters,” “tidal waters,” “tidewaters,” and the like invariably concern developments in harbors or along the shoreline. See, e.g., Trio Algarvio, Inc. v. Comm’r of Dep’t of Envtl. Prot., 440 Mass. 94, 795 N.E.2d 1148, 1151-53 (2003) (discussing wharves and other occupations of “tide waters”); Boston Waterfront Dev. Corp. v. Massachusetts, 378 Mass. 629, 393 N.E.2d 356, 358 (1979) (describing “the shores of the sea” as “tidal areas”); Comm’r of Pub. Works v. Cities Serv. Oil Co., 308 Mass. 349, 32 N.E.2d 277, 281 (1941) (discussing the construction of piers and wharves as the “erection of structures in tide waters”). At most, the term refers to the waters “belong[ing] to the Commonwealth.” Trio Algarvio, 795 N.E.2d at 1153 n. 9. Ten Taxpayer relies on the ancient case of Commonwealth v. Vincent, 108 Mass. 441 (1871), which opines that “tide waters” means “waters, whether salt or fresh, wherever the ebb and flow of the tide from the sea is felt.” Id. at 447. On its facts, however, that case involved only the question whether a pond on the mainland qualified as “tide waters” by virtue of a narrow channel connecting it to the sea. Notwithstanding the broad dictum, we do not think Vincent supports Ten Taxpayer’s sweeping notion that “tide waters” embraces any location where the depth of the sea is affected by the tides, even in waters that do not “belong” to the Commonwealth. We conclude that Mass. Gen. Laws ch. 130, § 16 is inapplicable to the SMDS site by its own terms. In any event, even if § 16 were applicable on Horseshoe Shoals, we would still conclude that no permit was required. That is because § 16 merely subjects structures erected in the tide waters to the “pertinent provisions” of Mass. Gen. Laws ch. 91. Chapter 91 requires a license from the Massachusetts Department of Environmental Protection (DEP) for structures built in protected waters. See Mass. Regs. Code tit. 310, § 9.05(l)(a). The DEP’s regulations, however, limit this licensing and permitting requirement to activities in “waterways” and “filled tidelands.” Id. § 9.04. Neither of those terms, as defined in the regulations, embraces Horseshoe Shoals. Consequently, Cape Wind was not obligated to seek a permit for its data tower under Mass. Gen. Laws ch. 91. Finally, Ten Taxpayer asserts in Count II of its complaint that Cape Wind was required to obtain approval for the SMDS under the Massachusetts Ocean Sanctuaries Act, Mass. Gen. Laws ch. 132A. Chapter 132A expressly provides that Nantucket Sound is within the Cape and Islands Ocean Sanctuary. See id. § 13(c). With few exceptions, the statute prohibits “the building .of any structure on the seabed” in any ocean sanctuary. Id. § 15. From this, Ten Taxpayer concludes that Cape Wind erected the SMDS in violation of chapter 132A. The problem with this theory is that the Massachusetts Department of Environmental Management (DEM), which is charged with implementing the Ocean Sanctuaries Act, id. § 12C, including the “care, oversight and control” of ocean sanctuaries, id. § 14; Mass. Regs.Code tit. 302, § 5.09, has expressly disclaimed authority over Horseshoe Shoals. In a letter to counsel for Ten Taxpayer dated January 24, 2002, Myron Gildesgame, the DEM’s director of the Office of Water Resources and the agency’s official Ocean Sanctuaries Coordinator, explained that the Cape and Islands Ocean Sanctuary is not considered to include the Horseshoe Shoals area. Although chapter 132A purports to include Nantucket Sound in that sanctuary, that legislation was passed pri- or to the Supreme Court’s decision in Maine II. Now, he concluded, “jurisdiction over the central portion of the Sound, including Horseshoe Shoals, is with the federal government.” Gildesgame was even more explicit in response to a subsequent letter from Ten Taxpayer: While I appreciate your legal research ... relative to state jurisdiction claims, the Department and the Ocean Sanctuaries Program have not claimed jurisdiction over the area of the sound which includes Horseshoe Shoals, and respectfully decline to seek to expand our current jurisdiction. That is the end of the matter. Because the responsible Massachusetts agency has disclaimed regulatory authority over the SMDS site, we hold that Cape Wind was not required to seek approval for the project under Mass. Gen. Laws. ch. 132A. 2. Inconsistency with Federal Law There is a second reason why the district court was correct to dismiss Ten Taxpayer’s complaint. Even if our interpretation of state law is incorrect and one or more of the cited Massachusetts statutes does require a permit for the SMDS, there is a further question: whether that requirement should be incorporated and enforced as federal law under 43 U.S.C. § 1333(a)(2)(A). We conclude that it should not. Under § 1333(a)(2)(A), the Massachusetts statutes cited by Ten Taxpayer apply on the outer Continental Shelf, if at all, solely as surrogate federal law. Id.; see also Gulf Offshore, 453 U.S. at 480, 101 S.Ct. 2870 ("All law applicable to the Outer Continental Shelf is federal law. . . But under the OCSLA, state laws are not adopted as surrogate federal law to the extent that they are "inconsistent with [the OCSLA] or with other Federal laws. . . Id.; see also Rodrigue, 395 U.S. at 355-56, 89 S.Ct. 1835 (explaining that state law applies to fixed structures on the outer Continental Shelf "only as federal law and then only when not inconsistent with applicable federal law"). In our view, the OCSLA leaves no room for states to require licenses or permits for the erection of structures on the seabed on the outer Continental Shelf. Congress retained for the federal government the exclusive power to authorize or prohibit specific uses of the seabed beyond three miles from shore. See § 1333(a)(3) (“The provisions of this section for adoption of State law as the law of the United States shall never be interpreted as a basis for claiming any interest in or jurisdiction on behalf of any State for any purpose over the seabed and subsoil of the outer Continental Shelf....”). If adopted and enforced on the outer Continental Shelf, statutes like Mass. Gen. Laws chs. 91 and 132A, which require the approval of state agencies prior to construction, would effectively grant state governments a veto power over the disposition of the national seabed. That result is fundamentally inconsistent with the OCSLA. See id. § 1332(3) (declaring it to be the policy of the United States that “the outer Continental Shelf is a vital national reserve held by the Federal Government for the public, which should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs” (emphasis added)). Ten Taxpayer contends that the Magnu-son-Stevens Act, which was enacted after the OCSLA, changed this calculus by defining the “body of water commonly known as Nantucket Sound” to be within the “jurisdiction and authority” of Massachusetts. See 16 U.S.C. § 1856(a)(2)(B). Yet nothing in the Magnuson-Stevens Act purports to repeal or amend the OCSLA. Cf. Passamaquoddy Tribe v. Maine, 75 F.3d 784, 790 (1st Cir.1996) (implied repeal of federal statutes is disfavored). On the contrary, the two statutes can readily coexist: the Magnuson-Stevens Act authorizes Massachusetts to regulate fishing-related conduct throughout Nantucket Sound, but “the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon,” 43 U.S.C. § 1333(a)(2)(A), remain the exclusive province of the federal government. Congress was perfectly clear in the Magnuson-Ste-vens Act that it did not intend to alter the rights of the United States in the outer Continental Shelf. See 16 U.S.C. § 1801(c)(1) (declaring it to be the policy of Congress in the Magnuson-Stevens Act “to maintain without change the existing territorial or other ocean jurisdiction of the United States for all purposes other than the conservation and management of fishery resources”). We conclude that any Massachusetts permit requirement that might apply to the SMDS project is inconsistent with federal law and thus inapplicable on Horseshoe Shoals under the OCSLA. The district court did not err in dismissing Ten Taxpayer’s complaint. IV. The judgment of the district court is affirmed. Costs are awarded to Cape Wind. . We express no view concerning the validity of this permit, which is the subject of a separate appeal in this court. See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep't of the Army, No. 03-2604 (1st Cir. docketed Nov. 24, 2003). . See generally http://capewind.whgrp.com (last visited June 22, 2004) (reporting real-time data from the SMDS). . The three-mile boundary is subject to certain exceptions not relevant here. E.g., 43 U.S.C. § 1301(b). .The Magnuson-Stevens Act does not create this "exclusive economic zone,” but rather incorporates by reference the 200-nautical mile exclusive economic zone that President Reagan created by executive order in 1983. See 16 U.S.C. § 1802(11); Proclamation No. 5030, 48 Fed.Reg. 10,605 (Mar. 14, 1983). Congress, however, modified that zone for purposes of the Magnuson-Stevens Act, defining it to include only that portion of the original exclusive economic zone that is seaward of the SLA boundary of state jurisdiction. See § 1802(11); Massachusetts ex rel. Div. of Marine Fisheries v. Daley, 170 F.3d 23, 25 (1st Cir.1999). . There is an exception, not relevant in this case, for the regulation of "highly migratory” fish species. See 16 U.S.C. § 1812. . Once again, there are certain exceptions not relevant in the present case. E.g., 16 U.S.C. § 1856(b). . Cape Wind also renews its argument that the plaintiffs lack standing to bring this suit. We disagree. A Massachusetts statute expressly allows groups like Ten Taxpayer to bring suit to enjoin environmental harms under any "statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment," Mass. Gen. Laws ch. 214, § 7A, and the plaintiffs here (all of whom reside in towns border- ■ ing Nantucket Sound and many of whom work in the Sound itself) allege sufficiently concrete and personal injuries from Cape Wind’s activities to support standing. In addition, no party has suggested that the appeal is moot because the SMDS has already been built; indeed, Ten Taxpayer says that Massachusetts regulatory clearance for the project remains both available and required. . At oral argument, the court invited the parties to file supplemental briefs directed to whether 43 U.S.C. § 1333(a)(2) supports federal subject-matter jurisdiction in this case. Both parties accepted the invitation. . We express no view as to whether other provisions of the OCSLA are so limited. That question is implicated in a related appeal pending before this court. See supra note 1. . Because we hold that Ten Taxpayer’s claims arise directly under federal law, we do not decide whether the so-called Smith doctrine, see Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 199, 41 S.Ct. 243, 65 L.Ed. 577 (1921), or the doctrine of complete preemption, see Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6-7, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003), would support federal jurisdiction in this case. . Congress may not have intended the phrase as a substantive restriction. Section 1856(a)(2) defines the term ‘jurisdiction and authority of a State.” In that context, a natural interpretation of the phrase "[f]or the purposes of this chapter” is simply that Congress wanted the definition stated in § 1856(a)(2) to apply throughout the Magnuson-Stevens Act. Congress employed similar language in definitional clauses elsewhere in the Magnuson-Stevens Act. See, e.g., 16 U.S.C. § 1802(11); id. § 1821(e)(2)(A); id. § 1823(c)(2). . Under DEP regulations, "waterway” means “any area of water and associated submerged land or tidal flat lying below the high water mark of any navigable river or stream, any Great Pond, or any portion of the Atlantic Ocean within the Commonwealth.” Mass. Regs.Code tit. 310, § 9.02 (emphasis added). Horseshoe Shoals is not "within the Commonwealth” under the SLA, and nothing in the Magnuson-Stevens Act alters that fact. Similarly, the SMDS is not located on "filled tidelands,” which are defined as "former submerged lands and tidal flats which are no longer subject to tidal action due to the presence of fill.” IcL. . The Ocean Sanctuaries Coordinator is a position created under the DEM's regulations. See Mass. Regs.Code tit. 302, § 5.09(3). The Coordinator is charged with carrying out the responsibilities of the DEM under the Ocean Sanctuaries Act and is authorized to perform or order investigations to determine whether particular activities are consistent with chapter 132A. Id. . We recognize that under DEM regulations, it is the Commissioner of the DEM and not the Ocean Sanctuaries Coordinator who is formally empowered to make determinations regarding the applicability of permit requirements to particular situations. See Mass. Regs.Code tit. 302, § 5.09(4). Nevertheless, we are satisfied that Gildesgame’s letters to counsel for Ten Taxpayer represent the official position of the DEM concerning the Commonwealth’s jurisdiction over Horseshoe Shoals. Ten Taxpayer has not disputed that the letters represent the agency's position. Moreover, prior to filing the instant lawsuit, Ten Taxpayer notified both the Commissioner of the DEM and the Massachusetts Attorney General of its intent to sue. See Mass. Gen. Laws ch. 214, § 7A (requiring such notice). Despite this notice, neither the Commissioner nor the Attorney General sought to intervene in this action or initiate an enforcement proceeding against Cape Wind.

United States v. Sutter

ORDER The Opinion filed on August 25, 2003 [340 F.3d 1022], is amended as follows: 1) At slip op., p. 11983, paragraph 3, 2d line [340 F.3d at 1027], change “Sutter’s indictment on September 18, 2001” to “Sutter’s arraignment on September 18, 2001.” 2) At slip op., p. 11983, paragraph 3, line 5 [340 F.3d at 1027], change “October 22, 2002” to “October 22, 2001.” 3) At slip op., p. 11992, paragraph 11, line 7 [340 F.3d at 1032], add the words “of the discovery dispute” after “settlement” and before the closing parenthetical. With these amendments, the panel has unanimously voted to deny appellant’s petition for rehearing and petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 85. The petition for rehearing and the petition for rehearing en banc are DENIED.

United States v. Milner

Betty B. FLETCHER, Circuit Judge: In this appeal we decide whether a group of waterfront homeowners are liable for common law trespass and violations of the Rivers and Harbors Appropriation Act of 1899(RHA), 33 U.S.C. § 403, and the Clean Water Act (CWA), 33 U.S.C. § 1311, because the ambulatory tideland property boundary has come to intersect shore defense structures the homeowners have erected. In a series of summary judgment rulings and after a bench trial, the district court found against the homeowners and ordered them to remove violating structures and to pay a $1500 civil penalty. We affirm in part and reverse in part. I. In 1855, the United States executed the Treaty of Point Elliott with several Indian tribes, thereby acquiring a vast swath of what is now western Washington. Treaty Between the United States and the Dwámish, Suquámish, and Other Allied and Subordinate Tribes of Indians in Washington Territory, Jan. 22,1855,12 Stat. 927 (1859) (the “Treaty of Point Elliott” or the “Treaty”). Under the terms of the Treaty, the tribes were relegated to certain reserved areas, including “the island called Chahehoo-sen,” on which the Lummi Indian Reservation was created for the plaintiffintervenor, the Lummi Nation. Id at 928. Although the Lummi initially occupied only the island, by an executive order, President Grant in 1873 expanded the reservation to encompass portions of the mainland, including Sandy Point, a sandy spit, all in what is now Whatcom County, Washington. Exec. Order (Nov. 22, 1873), reprinted in 1 Charles J. Zappler, Indian Affairs: Laws and Treaties 917 (1904), available at http://digital.library.okstate. edu/kappler/Voll/Images/vlp0917.jpg. Importantly, the order extended the reservation boundaries to “the low-water mark on the shore of the Gulf of Georgia.” Id. In other words, President Grant explicitly expanded the reservation to include the tidelands of the relevant area. United States v. Stotts, 49 F.2d 619, 619, 621 (W.D.Wash. 1930). As allowed under President Grant’s executive order, the uplands were divided into lots and patented by members of the tribe. Defendants-appellants Keith and Shirley Milner (the “Milners”), Mary Sharp, Brent and Mary Nicholson (the “Nicholsons”), and Ian Bennett and Marcia Boyd (“Bennett/Boyd”) (collectively, the “Homeowners”) are the successors in interest to some of the parcels derived from these original patents. The Homeowners’ parcels all adjoin tidelands on the Strait of Georgia. Unlike the Homeowners’ properties, the tidelands within the Lummi Reservation have otherwise never been alienated. Plaintiff-appellee the United States claims that it continuously has held the tidelands in trust for the Lummi Nation, pursuant to President Grant’s executive order. Not surprisingly, then, it is at the boundary between the tidelands and the uplands that the present dispute finds its locus. Although each property is slightly different, the Homeowners or their predecessors erected various “shore defense structures” to limit erosion and storm damage to their properties. The structures generally include “rip rap,” large boulders used to dissipate the force of incoming waves, and bulkheads placed landward of the rip rap. Between 1963 and 1988, a homeowners’ organization (the “Organization”) had leased the tidelands from the Lummi Nation, giving waterfront property owners the right to erect shore defense structures on the tidelands; however, once the lease expired, both the Organization and the individual Homeowners declined to renew the lease. Under federal law, the upper boundary of any tidelands is the mean high water (MHW) line, which is determined by projecting onto the shore the average of all high tides over a period of 18.6 years. Borax Consol. v. City of Los Angeles, 296 U.S. 10, 26-27, 56 S.Ct. 23, 80 L.Ed. 9 (1935). Over time, the Sandy Point shoreline has eroded significantly, so that as of January 2002, the date of the most recent survey in the record, some of the Homeowners’ shore defense structures sat seaward of the MHW line and within the Lummi tidelands. Given the expiration of the lease, the Homeowners do not have permission from the United States or the Lummi Nation to maintain structures on the tidelands, and they also lack permits to maintain structures in navigable waters of the United States or to discharge fill material into the waters of the United States. The United States Army Corps of Engineers, and later the United States Attorney for the Western District of Washington, sent letters to the Homeowners demanding removal of the structures or alternatively that the Homeowners enter into agreements to lease the tidelands. When the Homeowners did not remove the structures, the United States filed virtually identical complaints against the separate Homeowners, alleging three causes of action: (1) trespass; (2) violation of § 10 of the Rivers and Harbors Appropriation Act of 1899(RHA), 33 U.S.C. § 403; and (3) violation of § 301(a) of the Clean Water Act (CWA), 33 U.S.C. § 1311(a). The Lummi Nation intervened in the consolidated action to assert its interest as the beneficial owner of the tidelands. In a series of partial summary judgment rulings, District Judge Rothstein held that (1) the tidelands were owned by the United States, not the state of Washington; ■ (2) the erosion of the Homeowners’ property was not caused by an avulsive event inundating the uplands; and (3) the tideland boundary line was ambulatory and was not arrested by the Homeowners’ shore defense structures, so that it lay where the MHW line would be located but for the Homeowners’ structures. Judge Rothstein then ruled on summary judgment that the Homeowners were liable for trespass and violation of the RHA, and that the Nicholsons had violated the CWA. Although the United States had sued the other Homeowners for violation of the CWA, it later dismissed those claims against all but the Nicholsons. After finding liability, Judge Rothstein imposed an injunction under the RHA ordering the Homeowners to remove any shore defense structures located seaward of the MHW line. District Judge Leigh-ton subsequently conducted a bench trial to determine what penalties to impose on the Nicholsons for the CWA violation. He imposed a $1500 fine — far less than what the government sought — and ordered them to remove rip rap below a certain point. Additionally, Judge Leighton heard the Milners’ and Bennett/Boyd’s motion for attorneys’ fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, which he denied. The Homeowners timely appealed, challenging the summary judgment rulings on the trespass, RHA, and CWA claims, as well as the injunctive relief imposed by the district court. The Homeowners also argue that the district court erred in denying the EAJA motion. We address these arguments in turn. II. The district court had jurisdiction over the trespass claims under 28 U.S.C. § 1345, the RHA claims under 28 U.S.C. §§ 1331,1345 and 33 U.S.C. § 406, and the CWA claims under 28 U.S.C. §§ 1331 and 1345. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s grant of summary judgment de novo. Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004). We review a district court’s grant of injunctive relief for abuse of discretion and will reverse if the district court based its decision on an erroneous legal standard or a clearly erroneous finding of fact. Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1079 (9th Cir.2004). The decision whether to award fees under the EAJA also is reviewed for abuse of discretion. United States v. Marolf, 277 F.3d 1156, 1160 (9th Cir.2002). III. A. Federal common law governs an action for trespass on Indian lands. United States v. Pend Oreille Pub. Util. Dist. No. 1, 28 F.3d 1544, 1549 n. 8 (9th Cir.1994); see also Oneida County v. Oneida Indian Nation of New York State, 470 U.S. 226, 235-36, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985). That law generally comports with the Restatement of Torts, and in any event, Washington law conforms to the Restatement definition of trespass. See United States v. West, 232 F.2d 694, 699 (9th Cir.1956) (citing Arizona case law and the Restatement (First) of Torts to define trespass); Edwardsen v. Morton, 369 F.Supp. 1359, 1371 (D.D.C.1973) (applying Restatement (Second) of Torts to federal trespass action); United States v. Osterlund, 505 F.Supp. 165, 167 (D.C.Colo.1981) (same); cf. Bradley v. Am. Smelting & Ref. Co., 104 Wash.2d 677, 709 P.2d 782, 785 (1985) (quoting Restatement (Second) of Torts definition of trespass). Under the Restatement, a person is hable for trespass “if he intentionally ... causes a thing [to enter land in the possession of another], ... [or] fails to remove from the land a thing which he is under a duty to remove.” Restatement (Second) of Torts § 158 (2009). The district court found it uncontested that portions of the Homeowners’ shore defense structures were seaward of the MHW line and therefore in Lummi tidelands. Nevertheless, the Homeowners make three arguments that they cannot be liable for trespass. First, they argue that Washington state, not the United States, owns the tidelands; therefore, the United States cannot properly assert an action for trespass against them. Second, they contend that because their structures were lawfully built landward of the MHW line— that is, on the Homeowners’ property— they cannot be liable for trespass, despite the movement of the tideland boundary. Finally, they argue that the elements of intent and causation were not satisfied. We conclude that none of these arguments is correct. 1. The Homeowners’ ownership argument turns on the effect of President Grant’s executive order and its force under the “equal footing” doctrine. To put newly admitted states on an “equal footing” with the original states, the doctrine creates a strong presumption that newly admitted states acquire title to lands under navigable waters upon their admission to statehood. Idaho v. United States, 533 U.S. 262, 272-73, 121 S.Ct. 2135, 150 L.Ed.2d 326 (2001). The presumption is rebutted (1) if such lands have been reserved by the United States, and (2) if Congress recognizes the reservation in a way that demonstrates an intent to rebut the presumption. Id. at 273, 121 S.Ct. 2135. According to the Homeowners, because President Grant’s executive order could not permanently reserve the tidelands for the Lummi, under the equal footing doctrine, title passed to the state of Washington when it became a state. Prior quiet title actions make clear that President Grant’s executive order was sufficient to prevent ownership from passing to Washington. In United States v. Romaine, the United States sought to quiet title against individuals who had bought Lummi tidelands from the state of Washington. 255 F. 253, 253 (9th Cir.1919). This court held the president’s executive order to be decisive and rejected an argument that the reservation extended only to the high-water mark. Id. at 259-GO. Romaine noted that when Washington was admitted as a state, it disclaimed any right and title to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States. Id. at 260 (quoting Act of Feb. 22, 1889, ch. 180, § 4, 25 Stat. 676, 677). United States v. Stotts similarly involved a suit by the United States to quiet title in Lummi tidelands purchased from the state. 49 F.2d 619, 619 (W.D.Wash.1930). Distinguishing United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 (1926), one of the earliest cases establishing the contours of the equal footing doctrine, Stotts held that unlike in Holt the Lummi had a specific declaration reserving the tidelands for them. Stotts, 49 F.2d at 621. Stotts also noted that the Treaty of Point Elliott clearly gave the Lummi and other tribes the right to fish in their “usual and accustomed grounds and stations” and that possession of the tidelands was “a necessary perquisite to the enjoyment of fishing.” Id. at 620-21. In more recent litigation, we again gave effect to the 1873 executive order as definitively establishing the boundaries of the Lummi reservation, including the order’s reservation of tidelands. United States v. Washington, 969 F.2d 752, 755-56 (9th Cir.1992). Notably, in Washington, the state took the position that the Lummi reservation extends to the low-tide line and did not claim the tidelands. Id. at 753. In this lawsuit, the state has expressly declined to claim ownership of the tidelands and to intervene. We have remarked before that stare decisis “applies with special force to decisions affecting title to land,” given the special reliance that such decisions command. Confederated Salish & Kootenai Tribes v. Namen, 665 F.2d 951, 960 (9th Cir.1982); see also Minnesota Min. Co. v. Nat’l Min. Co., 3 Wall. 332, 70 U.S. 332, 334, 18 L.Ed. 42 (1865) (“Where questions arise which affect titles to land it is of great importance to the public that when they are once decided they should no longer be considered open. Such decisions become rules of property, and many titles may be injuriously affected by their change.”); Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.2001) (“Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court.”). The Lummi and homeowners on Sandy Point have long relied on the fact that the Lummi own the tidelands. Until 1988, Homeowners leased the tidelands from the Lummi, with both sides believing that the Lummi owned the tidelands. We see no reason, then, to overturn 90 years of precedent, especially when the supposed title holder has declined to claim ownership. Additionally, evaluating the executive order against contemporary case law, we find it sufficient to rebut the presumption of the equal footing doctrine. As the Supreme Court has explained, “the two-step test of congressional intent is satisfied when an Executive reservation clearly includes submerged lands, and Congress recognizes the reservation in a way that demonstrates an intent to defeat state title.” Idaho, 533 U.S. at 273, 121 S.Ct. 2135 (citing United States v. Alaska, 521 U.S. 1, 41-46, 55-61, 117 S.Ct. 1888, 138 L.Ed.2d 231 (1997) (Alaska (Arctic Coast))). Although “disposals by the United States during the territorial period are not lightly to be inferred,” Holt State Bank, 270 U.S. at 55, 46 S.Ct. 197, because the two-step test of congressional intent is met, the tidelands did not pass to Washington upon its admission to statehood. The first part of the test is easily met. Article VII of the Treaty of Point Elliott provides that “[t]he President may hereafter, when in his opinion the interests of the Territory shall require and the welfare of the said Indians be promoted, remove them from either or all of the special reservations hereinbefore made to the said general reservation, or such other suitable place within said Territory as he may deem fit.” 12 Stat. at 929. Thus, in ratifying the Treaty, Congress gave the President the discretionary power to alter the boundaries of the reservation; he later exercised these powers by explicitly extending the reservation to the low-water mark, thereby including the tidelands. Cf. Alaska v. United States, 545 U.S. 75, 101— 02, 125 S.Ct. 2137, 162 L.Ed.2d 57 (2005) (Alaska (Glacier Bay)) (finding that executive proclamation reserving submerged lands as part of national monument met first prong of congressional intent test). When Congress admitted Washington to statehood, it was aware that the President’s executive order added the tidelands to the reservation. See Alaska (Arctic Coast), 521 U.S. at 45, 117 S.Ct. 1888 (finding that the President’s executive order “placed Congress on notice that the President had construed his reservation authority to extend to submerged lands and had exercised that authority to set aside uplands and submerged lands in the Reserve”). And while Congress admitted Washington on an equal footing, 25 Stat. at 679, it also recognized the validity of the executive order reservation by requiring Washington state to “forever disclaim all right and title ... to all lands ... owned or held by any Indian or Indian tribes.” Id. at 677. This proviso was written more broadly than Congress’s specific recognition of ownership over the National Petroleum Reserve in Alaska (Arctic Coast), see 521 U.S. at 41-42, 117 S.Ct. 1888, but a broad congressional statement can still be a clear expression of intent. In Alaska (Glacier Bay), the Supreme Court held that an exception that prevented the transfer of “lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife” to the state of Alaska was a sufficient indication of intent so as to defeat state title to submerged lands in the Glacier Bay National Monument. 545 U.S. at 105, 125 S.Ct. 2137 (quoting the Alaska Statehood Act, Pub.L. No. 85-508, § 6(e), 72 Stat. 339, 341 (1958)). As in Alaska (Glacier Bay), Congress made it abundantly clear here that Washington would not have title to the lands in question, thereby satisfying the second step of the congressional intent test. Historically, the Lummi and other Pacific Northwest tribes have depended heavily on fishing and digging for shellfish as a means of subsistence. See Stotts, 49 F.2d at 620-21; Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 665-67, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). President Grant’s reservation of the tidelands thus served to promote the tribe’s access to fishing and shellfish, and the welfare of the tribe more generally. Longstanding precedent has established that the tidelands were reserved for the Lummi, and both the tribe and others have relied on this understanding for years. But even were there no such precedent, the executive order reserving the tidelands was promulgated pursuant to congressional authority and subsequently recognized by Congress in a way that indicates a clear intent to prevent title from passing to the state of Washington. We therefore hold that the United States owns the tidelands and holds them in trust for the Lummi. 2. The problem of riparian and littoral property boundaries is a recurring and difficult issue. These disputes can be especially complicated where the land borders tidal waters, because the waters fluctuate dramatically and because private title claims often have to be balanced against federal and state interests in the ownership and use of the submerged lands. At issue in the Homeowners’ second challenge to the trespass claim are two competing common law principles. On the one hand, courts have long recognized that an owner of riparian or littoral property must accept that the property boundary is ambulatory, subject to gradual loss or gain depending on the whims of the sea. See, e.g., County of St. Clair v. Lovingston, 23 Wall. 46, 90 U.S. 46, 68-69, 23 L.Ed. 59 (1874). On the other hand, the common law also supports the owner’s right to build structures upon the land to protect against erosion. See, e.g., Cass v. Dicks, 14 Wash. 75, 44 P. 113, 114 (1896) (“If a landowner whose lands are exposed to inroads of the sea[ ] ... erects sea walls or dams for the protection of his land, and by so doing causes the tide, the current, or the waves to flow against the land of his neighbor ... [he] is not responsible in damages to the latter, as he has done no wrong having acted in self-defense, and having a right to protect his land.” (citation omitted)). In this case, the Homeowners’ land has eroded away so dramatically that the ambulatory tideland boundary has reached and become fixed at their shore defense structures. While the Homeowners cannot be faulted for wanting to prevent their land from eroding away, we conclude that because both the upland and tideland owners have a vested right to gains from the ambulation of the boundary, the Homeowners cannot permanently fix the property boundary, thereby depriving the Lummi of tidelands that they would otherwise gain. Under the common law, the boundary between the tidelands and the uplands is ambulatory; that is, it changes when the water body shifts course or changes in volume. See Jefferis v. East Omaha Land Co., 134 U.S. 178, 189, 10 S.Ct. 518, 33 L.Ed. 872 (1890); California ex rel. State Lands Comm’n v. United States, 805 F.2d 857, 864 (9th Cir.1986); United States v. Boynton, 53 F.2d 297, 298 (9th Cir.1931). The uplands owner loses title in favor of the tideland owner-often the state-when land is lost to the sea by erosion or submergence. The converse of this proposition is that the littoral property owner gains when land is gradually added through accretion, the accumulation of deposits, or reliction, the exposure of previously submerged land. See County of St. Clair, 90 U.S. at 68-69, 23 Wall. 46; Jefferis, 134 U.S. at 189, 10 S.Ct. 518; 65 C.J.S. Navigable Waters § 95 (2009). These rules date back to Roman times, and have been noted in Blackstone’s Commentaries and many other common law authorities and cases. See County of St. Clair, 90 U.S. at 66-67, 23 Wall. 46 (citing inter alia the Institutes of Justinian, the Code Napoleon, and Blackstone’s Commentaries); John M. Gould, A Treatise on the Law of Waters 306-08 (3d ed. 1900) (“Land formed by alluvion, or the gradual and imperceptible accretion from the water, and land gained by reliction, or the gradual and imperceptible recession of the water, belong to the owner of the contiguous land to which the addition is made.... Conversely land gradually encroached upon by navigable waters ceases to belong to the former owner.”); 3 Emory Wash-burn, A Treatise on the American Law of Real Property 75 (6th ed. 1902) (“[T]he boundary line of an owner’s land bordering upon the sea varies with the gradual increase or diminution of quantity by the addition of alluvion, or by the encroachments of the water upon the land, the line of the shore varying accordingly.”). Importantly, the upland owner’s right to accretions is a vested right and “rests in the law of nature.” County of St. Clair, 90 U.S. at 68, 23 Wall. 46. It is justified in large part because the upland owner’s land is subject to erosion. As the Supreme Court stated in County of St. Clair, The riparian right to future alluvion is a vested right. It is an inherent and essential attribute of the original property. The title to the increment rests in the law of nature. It is the same with that of the owner of a tree to its fruits, and of the owner of flocks and herds to then-natural increase. The right is a natural, not a civil one. The maxim ‘qui sentit onus debet sentiré commodum’ [‘he who enjoys the benefit ought also to bear the burdens’] lies at its foundation. The owner takes the chances of injury and of benefit arising from the situation of the property. If there be a gradual loss, he must bear it; if, a gradual gain, it is his. Id. at 68-69, 23 Wall. 46; see also Nebraska v. Iowa, 143 U.S. 359, 360-61, 12 S.Ct. 396, 36 L.Ed. 186 (1892) (“Every proprietor whose land is thus bounded [by water] is subject to loss by the same means which may add to his territory; and, as he is without remedy for his loss in this way, he cannot be held accountable for his gain.” (quoting New Orleans v. United States, 35 U.S. (10 Pet.) 662, 717, 9 L.Ed. 573 (1836))); Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 326, 94 S.Ct. 517, 38 L.Ed.2d 526 (1973) (“Since a riparian owner is subject to losing land by erosion beyond his control, he should benefit from any addition to his lands by the accretions thereto which are equally beyond his control.”), overruled on other grounds by Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977). By this logic, both the tideland owner and the upland owner have a right to an ambulatory boundary, and each has a vested right in the potential gains that accrue from the movement of the boundary line. The relationship between the tideland and upland owners is reciprocal: any loss experienced by one is a gain made by the other, and it would be inherently unfair to the tideland owner to privilege the forces of accretion over those of erosion. Indeed, the fairness rationale underlying courts’ adoption of the rule of accretion assumes that uplands already are subject to erosion for which the owner otherwise has no remedy. Some courts have justified the rule of accretion by noting that it is in the interest of the community that land have an owner and be put to “productive use.” See Bd. of Trustees of the Internal Improvement Fund v. Medeira Beach Nominee, Inc., 272 So.2d 209, 213 (Fla.Dist.Ct.App.1973); Brainard v. State, 12 S.W.3d 6, 18 (Tex. 1999). While this could be seen as supporting the notion that dry uplands should be valued more than tidelands, we decline to hold that the use of uplands is inherently more valuable than the use to which tidelands can be put. As was already noted, the tidelands have played an important role in the Lummi’s traditional way of life, and in most other areas, the tidelands are held by the state in trust for the public. See Illinois Central R.R. Co. v. Illinois, 146 U.S. 387, 436-37, 13 S.Ct. 110, 36 L.Ed. 1018 (1892). These interests are substantial, and the uses they represent are not obviously less “productive.” See Shively v. Bowlby, 152 U.S. 1, 57, 14 S.Ct. 548, 38 L.Ed. 331 (1894) (“[Lands under tide waters] are of great value to the public for the purposes of commerce, navigation, and fishery. Their improvement by individuals, when permitted, is incidental or subordinate to the public use and right.”). Thus, both the Lummi and the Homeowners must accept that the ambulatory boundary is “an inherent and essential attribute of the original property,” County of St. Clair, 90 U.S. at 68, 23 Wall. 46, and that both the tidelands and the uplands are subject to diminishment and expansion based on the forces of the sea. The Homeowners concede that the tideland boundary is ambulatory, but only to a point. According to the Homeowners, once the MHW line intersects the face of their defense structures, the boundary becomes fixed and remains so unless the tide line overtops the structures or recedes. The Homeowners rightly note that the common law permits them to erect shore defense structures on their property to prevent erosion. They contend that they lawfully did just that, building landward of the MHW line, and cannot be liable for the movement of the tideland boundary. In particular, the Homeowners draw support for their position from the common enemy doctrine, which provides that “[a] man may raise an embankment on his own property to prevent the encroachments of the sea, although the fact of his doing so may be to cause the water to beat with violence against the adjoining lands, thereby rendering it necessary for the adjoining landowner to enlarge or strengthen his defenses.” Revell v. People, 177 Ill. 468, 52 N.E. 1052, 1059 (1898) (quotation marks and citation omitted). Typically, the common enemy doctrine applies as a defense to nuisance or trespass actions where a property owner has caused surface waters — the “common enemy” of all landowners — to invade a neighbor’s property. See, e.g., Cass v. Dicks, 14 Wash. 75, 44 P. 113, 114 (1896) (“[S]urface water, caused by the falling of rain or the melting of snow, and that escaping from running streams and rivers, is regarded as an outlaw and a common enemy, against which any one may defend himself, even though by doing so injury may result to others.”). The doctrine therefore does not apply here. On the one hand, the injury complained of is not the diversion of water onto the tidelands; rather, it is the physical encroachment of the shore defense structures themselves. With the exception of Revell, which held that a waterfront property owner had no right to erect structures on submerged land owned by the state, 52 N.E. at 1060, all the cases cited by the Homeowners concern disputes over structures diverting waters onto a neighbor’s land, not the maintenance of structures on the neighbor’s land. See Lamb v. Reclamation Dist. No. 108, 73 Cal. 125, 14 P. 625, 626-27 (1887); Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 406 (1932). On the other hand, the rule is inapposite because the water is not acting as a “common enemy” of the parties involved. The tide line is an inherent attribute of the properties at issue, since it dictates where the tidelands end and the uplands begin. That the boundary is ambulatory does not make it a common enemy, since any movement seaward or landward is to the benefit of one party and the detriment of the other. It is unfortunate that the boundary line increasingly has encroached on the Homeowners’ property, but they cannot claim that the common enemy doctrine allows them to fix permanently the tideland boundary. The Homeowners have the right to build on their property and to erect structures to defend against erosion and storm damage, but all property owners are subject to limitations in how they use their property. The Homeowners cannot use their land in a way that would harm the Lummi’s interest in the neighboring tidelands. Given that the Lummi have a vested right to the ambulatory boundary and to the tidelands they would gain if the boundary were allowed to ambulate, the Homeowners do not have the right to permanently fix the property boundary absent consent from the United States or the Lummi Nation. The Lummi similarly could not erect structures on the tidelands that would permanently fix the boundary and prevent accretion benefitting the Homeowners. Although the shore defense structures may have been legal as they were initially erected, this is not a defense against the trespass action nor does it justify denying the Lummi land that would otherwise accrue to them. We emphasize that this does not mean property owners cannot erect shore defense structures on their property or take other action to prevent erosion. Nor does it mean that the Homeowners must necessarily remove their structures, if they can reach an agreement with the Lummi Nation and the United States that allows the structures to remain. Rather, we hold only that the Homeowners have no defense to a trespass action because they are seeking to protect against erosion. Once the shore has eroded so dramatically that the property owner’s shore defense structures fix the ambulatory boundary, the upland owner cannot expect to permanently maintain the boundary there without paying damages to the tideland owner or working out an agreement with the tideland owner. Homeowners on Sandy Point previously had leased the tidelands from the Lummi, and there is no reason the Homeowners could not similarly seek to negotiate a new agreement now. 3. It is undisputed that as of the 2002 survey, some of the Homeowners’ shore defense structures sat seaward of the MHW line. The Homeowners nevertheless argue that they cannot be liable for trespass because they did not intend the structures to trespass and because the trespass was caused by the erosion of the shore and resulting movement of the boundary, not by the Homeowners. However, as the district court noted, to be liable for trespass, the Homeowners need not have intended the actual trespass. Rather, the intent requirement is satisfied because the government requested that the encroaching parts of the structures be removed, but the Homeowners failed to do so. See New York State Energy Research & Dev. Auth. v. Nuclear Fuel Servs., Inc., 561 F.Supp. 954, 974 (W.D.N.Y.1983) (“In the case of trespass through the continuing presence of chattels on another’s land, the requisite intent does not arise until the duty to remove the chattels arises, which does not occur until a demand for removal has been made.”); see also Restatement (Second) of Torts § 161; 75 Am.Jur.2d Trespass § 19 (2009) (“A trespass may be committed by the continued presence on the land of a structure, chattel, or other thing that the actor or a predecessor in legal interest has placed on the land and failed to remove.”). And although the Homeowners did not cause the movement of the boundary line, they can still be liable for the structures even after the boundary moved across the structures. It is enough that the Homeowners caused the structures to be erected and that the structures subsequently rested on the tidelands. See Restatement (Second) of Torts § 161, cmts. b, e. Given that the United States, not Washington, holds title to the tidelands and that the Homeowners cannot permanently fix the tideland boundary, it quickly follows that the Homeowners are liable for trespass. The district court was correct, then, in finding in favor of the United States and Lummi Nation as to the trespass claim. B. Turning next to the RHA claim, there are three ways in which a defendant could violate § 10 of the RHA. The first clause of § 10 prohibits the creation of “any obstruction not affirmatively authorized by Congress[ ] to the navigable capacity of any of the waters of the United States.” 33 U.S.C. § 403. Clauses two and three respectively make it unlawful to “build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States ... except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army” or to “excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of ... the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.” Id. Under the RHA the navigable waters of the United States means “all places covered by the ebb and flow of the tide to the mean high water (MHW) mark in its unobstructed, natural state.” Leslie Salt Co. v. Froehlke, 578 F.2d 742, 753 (9th Cir.1978); see also 33 C.F.R. §§ 322.2(a), 329.4, 329.12(a)(2). Notably, courts have “consistently found [the RHA’s] coverage to be broad,” Wyandotte Transp. Co. v. United States, 389 U.S. 191, 201, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); see also Sanitary Dist. Co. of Chicago v. United States, 266 U.S. 405, 429, 45 S.Ct. 176, 69 L.Ed. 352 (1925) (calling the RHA “a broad expression of policy in unmistakable terms”), and “read the [RHA] charitably in light of the purpose to be served.” United States v. Republic Steel Corp., 362 U.S. 482, 491, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960). The Homeowners concede that they do not have authorization to maintain structures in the navigable waters of the United States. Given that at least some of their shore defense structures lie seaward of the MHW line, the issue on appeal is whether the district court properly ruled that the Homeowners had violated § 10 by not removing their shore defense structures from the tidelands. Although § 10 does not explicitly mention the maintenance of structures in navigable waters, in the sense of keeping structures in place, we have interpreted the RHA as making unlawful the failure to remove structures prohibited by § 10, even if they were previously legal. See United States v. Alameda Gateway Ltd., 213 F.3d 1161, 1167 (9th Cir.2000) (“Gateway’s assertion that the Corps cannot remove a lawfully erected structure is equally unavailing .... the RHA allows the United States to remove structures that were once erected lawfully but subsequently found to be obstructions.”). This makes sense in light of the RHA’s concern with insuring that navigable waterways remain free of obstruction, because even initially legal structures can subsequently interfere with navigation. See, e.g., United States v. New York Cent. R.R., 252 F.Supp. 508, 511 (D.Mass.1965) (finding landward remnants of previously legal bridge an obstruction), ajfd per curiam, 358 F.2d 747 (1st Cir.1966). The Homeowners’ structures may have been legal as initially built, but because of the movement of the tidal boundary they now sit in navigable waters and are obstructions. The Homeowners argue that Alameda Gateway is inapplicable, because it concerns the first clause of § 10, and, according to them, the shore defense structures do not interfere with navigation. However, structures violating clauses two or three are presumed to be obstructions under the first clause. Alameda Gateway, 213 F.3d at 1165; Sierra Club v. Andrus, 610 F.2d 581, 596 (9th Cir.1979), rev’d on other grounds sub nom. California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981) (holding that there is no implied private right of action under § 10 and thus declining to reach the merits). That is, clauses two and three have been interpreted as “a legislative enumeration of specific obstructions to navigable capacity that require Corps authorization” to be legal, Andrus, 610 F.2d at 594, with the Corps having discretion to “determine what in the particular cases constitute^] an unreasonable obstruction.” Id. at 596 (quoting Wisconsin v. Illinois, 278 U.S. 367, 413, 49 S.Ct. 163, 73 L.Ed. 426 (1929)). There is no need, then, for the Corps or the courts to determine first that the Homeowners’ structures obstruct navigable capacity, since the structures obviously qualify as a “breakwater, bulkhead, ... or other structure” under clause two and modify the course, location, condition, and capacity of the Strait under clause three. 33 U.S.C. § 403. The Homeowners are therefore required to have Corps authorization; because they have maintained their structures in the tidelands without such authorization, they can be liable under the RHA. BILD argues that under the RHA navigable waters do not extend to the MHW line in its “unobstructed, natural state,” because Leslie Salt stated that this jurisdictional line “is dictated by the principle ... that one who develops areas below the MHW line does so at his peril.” 578 F.2d at 753. According to BILD, since the Homeowners claim they built above the MHW line, Leslie Salt is inapplicable. On the one hand, whether navigable waters reach the MHW in its unobstructed state or in its obstructed state is irrelevant here, because the Homeowners are liable either way. The topographic survey maps submitted by the government show that at least some rip rap from the shore defense structures sits below the MHW line, and that rip rap has not so obstructed the movement of the tide that it is prevented from flowing landward of this scattered rip rap. So even assuming an obstruction could prevent the movement of the MHW line under the RHA, the Homeowners have still violated clause two of § 10. On the other hand, this argument ignores the RHA’s central concern, which is to insure that the nation’s waterways remain navigable and free of obstruction. The nation’s navigable waterways, of course, can change, and with it the Corps’ jurisdiction. See, e.g., Swanson v. United States, 789 F.2d 1368 (9th Cir.1986) (finding Corps had jurisdiction over subsequently flooded area). Structures that were previously above the MHW line can become subject to Corps’ regulation because the tide line has moved, and if those structures prevent the MHW line from achieving its unobstructed, natural state they can pose a serious risk to navigation. A structure should not be exempt from regulation because it so significantly displaces navigable waters that the waters are permanently penned in. Just as one who develops below the MHW line “does so at his peril,” those who build too close to the MHW line also run the risk that their structures eventually may become obstructions and be subject to regulation by the Corps. The Homeowners’ structures additionally violate clause three of § 10, without regard to whether or not one considers the waters in their unobstructed state. In certain circumstances a structure or activity can still be a violation of clauses one or three of § 10 even if the structure or activity is not located in navigable waters. See United States v. Sexton Cove Estates, Inc., 526 F.2d 1293, 1298 (5th Cir.1976). As the Fifth Circuit has put it, for the most part § 10 has “no locality assigned to its prohibitions.” Id. It prohibits any obstruction to navigable capacity. There is no suggestion that an obstruction whose source is above [the MHW line] escapes prosecution. It prohibits the alteration or modification of the course, condition, location or capacity of a navigable water. There is not the slightest intimation that an alteration or modification whose source is above [the MHW line] is any less an alteration or modification. There is nothing in the language of the statute nor the logic of its implementation which creates this barrier beyond which the Corps is ubiquitously powerless. Indeed, such a limitation would thwart the design of the statute. Id. at 1298-99; see also 33 C.F.R. § 322.3(a) (“Structures or work outside [the navigable waters of the United States] are subject to [§ 10] if these structures or work affect the course, location, or condition of the waterbody in such a manner as to impact on its navigable capacity.”). Under clause three, even though the tide line does not extend past the Homeowners’ shore defense structures because the Homeowners have successfully prevented the Strait from advancing landward, the structures “alter or modify the course, location, condition, or capacity of’ the Strait, since the flow of the waters is limited by the structures. 33 U.S.C. § 403. The Homeowners are therefore liable on this alternative basis as well. Because the Homeowners have maintained at least part of their shore defense structures below the MHW line, and because the structures alter the course, location, condition, or capacity of the Strait, they are required to obtain Corps’ authorization or face liability. Contrary to the Homeowners’ claim, they need not have intended to violate the RHA; it is sufficient under Alameda Gateway that they intentionally erected structures that became obstructions. See 213 F.3d at 1167. The district court therefore appropriately found liability, and its imposition of an injunction under § 12 of the RHA, 33 U.S.C. § 406, was not an abuse of discretion, given the standard for injunctions under § 12. See United States v. Stoeco Homes, Inc., 498 F.2d 597, 611 (3d Cir. 1974) (“No balancing of interest or need to show irreparable injury is required when an injunction is sought under § 12 to prevent erection or seek removal of an unlawful structure.”). C. The CWA prohibits the discharge of any dredged or fill material into “navigable waters” unless authorized by the Corps. See 33 U.S.C. §§ 1311, 1344. However, the scope of the Corps’ regulatory authority under the CWA and RHA is not the same, in part because the definition of “navigable waters” is broader under the CWA and encompasses all “waters of the United States.” 33 U.S.C. § 1362(7); Leslie Salt, 578 F.2d at 754-55. Instead of using the MHW line, the Corps’ regulations define its CWA jurisdiction over tidal waters by reference to the “high tide line,” 33 C.F.R. § 328.4(b)(1), which, in turn, is defined as “the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide.” 33 C.F.R. § 328.3(d). The district court found on summary judgment that the Nicholsons had violated the CWA, because, in the course of reconstructing their shore defense structures, they discharged fill material below where the high tide line would fall in its unobstructed, natural state without a permit. In so ruling, the district court again relied on the holding from Leslie Salt that “the MHW line is to be fixed in accordance with its natural, unobstructed state.” 578 F.2d at 753. However, while Leslie Salt applied this rule to the definition of navigable waters under the RHA, it was more circumspect as to what the limits of navigable waters and the Corps’ jurisdiction are under the CWA. The district court in Leslie Salt had held that navigable waters under the CWA extended to the MHHW line in its unobstructed, natural state. Sierra Club v. Leslie Salt Co., 412 F.Supp. 1096, 1103 (N.D.Cal.1976). But we declined to hold that the waters of the United States extended to all places the water would theoretically reach, partially out of concerns that such a ruling swept too broadly and unnecessarily included “fast land” or “improved solid upland.” See Leslie Salt, 578 F.2d at 754. Since we could decide Leslie Salt by addressing only whether the particular waters in question were subject to regulation by the Corps, we did not address the ultimate question of what constitutes the outer limit of the Corps’ CWA jurisdiction. Id. at 756. This case presents more squarely the question of how far the Corps’ CWA jurisdiction extends. Leslie Salt addressed whether certain waters diked off from the San Francisco Bay constituted waters of the United States. 578 F.2d at 756. Here there is a question as to whether any water actually reaches the area at issue, and if not, whether it is still subject to regulation by the Corps. The parties in Leslie Salt agreed that the Corps’ jurisdiction does not extend to property that was dry, solid upland as of the date of the passage of the CWA. See id. at 754. In the same vein, the Corps has stated that it does not intend to assert jurisdiction over lands that once were submerged but which have been transformed into dry land. See 42 Fed.Reg. 37128 (July 19, 1977). While we do not purport to decide the full extent of the Corps’ CWA regulatory authority, we find this approach persuasive. Any discharge on fast land would not actually be in the waters of the United States, and it would be potentially unfair to occupants of such land to hold them to the strictures of the CWA if the land has long been dry. Even if land has been maintained as dry through artificial means, if the activity does not reach or otherwise have an effect on the waters, excavating, filling and other work does not present the kind of threat the CWA is meant to regulate. This does not mean that fast land cannot subsequently become submerged by the waters of the United States. As the Corps’ regulations acknowledge, gradual changes to the bed of a body of water will change the boundaries of the waters of the United States. 33 C.F.R. § 328.5. But if land was dry upland at the time the CWA was enacted, it will not be considered part of the waters of the United States unless the waters actually overtake the land, even if it at one point had been submerged before the CWA was enacted or if there have been subsequent lawful improvements to the land in its dry state. In short, in such a situation, the waters of the United States are demarcated by the reach of the high tide line, but not as it would be in its unobstructed, natural state if the fill or obstruction was in place at the time the CWA was enacted or if there was a legally authorized filling or improvement done after the enactment of the CWA. Applying that boundary here, it is unclear from the evidence presented at summary judgment whether the high tide line actually reached the area where the Nicholsons excavated and filled. Pictures of the bulkhead reconstruction show that the rip-rap revetment seaward of the bulkhead may have successfully prevented the tide from reaching the area under construction. The construction diagrams show an intent to excavate to a depth that would be below the high tide line if one ignored the existence of the revetment. But if the revetment was in place prior to the enactment of the CWA or legally built on dry land after the passage of the CWA, then it must be considered as it actually exists. While the parties seem to agree that the revetment was built in 1982 by the Nicholsons’ predecessor in interest, on summary judgment the government did not present evidence showing that the revetment was not lawfully built on dry land beyond the reach of the high tide line. There was also no evidence that during the reconstruction of the bulkhead, the Nicholsons placed additional rip rap seaward of the revetment or that their activities otherwise led to the discharge of material below the high tide line, as it actually existed. The government therefore did not carry its burden of showing that the Nicholsons had violated the CWA by discharging material into waters of the United States. Accordingly, we reverse the grant of summary judgment on this claim and remand for further proceedings. Although the CWA’s jurisdictional reach is generally broader than the RHA’s, the reversal here is explained by the RHA’s concern with preventing obstructions, on the one hand, and the CWA’s focus on discharges into water, on the other. Since the two laws serve different purposes, their regulatory powers will diverge in some circumstances, as is the case here. Under the RHA, it is appropriate to ignore an obstruction’s ability to stop the flow of navigable water, because the purpose of the RHA is precisely to prevent or remove obstructions to navigable waters. The Homeowners’ structures clearly impinge on the capacity of the Strait of Georgia and portions of them sit within navigable waters; they are therefore obstructions. The CWA, on the other hand, is designed to restore and maintain the integrity of the nation’s waters, which it does by limiting the discharge of pollutants into the waters. See 33 U.S.C. § 1251(a). The Nicholsons’ activities in reconstructing their bulkhead, however, would not involve a discharge into waters of the United States if conducted solely on fast land. The revetment fronting their bulkhead may have prevented the MHHW line from reaching the construction work— and thereby prevented a discharge into navigable waters — while at the same time obstructing those waters. It is perfectly consistent, then, that the Homeowners could be liable under the RHA while the Nicholsons may not be liable under the CWA. D. Finally, for the court to award attorney’s fees and costs under the EAJA, it must be shown that (1) the party seeking fees is the prevailing party; (2) the government has not met its burden of showing that its positions were substantially justified or that special circumstances make an award unjust; and (3) the requested fees and costs are reasonable. See Perez-Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002). To be a prevailing party, the party must have received an enforceable judgment on the merits or a court-ordered consent decree. Id.; see Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (“[Enforceable judgments on the merits and court-ordered consent decrees create the ‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney’s fees.” (citation omitted)). The Milners and Bennett/Boyd stipulated to the government’s dismissal, without prejudice, of the CWA claims against them. However, although a defendant may no longer have a claim pending against him or her upon dismissal, a dismissal without prejudice does not materially alter the legal relationship of the parties, because the defendant remains subject to the risk of re-filing. Oscar v. Alaska Dep’t of Educ. & Early Dev., 541 F.3d 978, 981 (9th Cir.2008); Cadkin v. Loose, 569 F.3d 1142, 1149 (9th Cir.2009). Although Oscar and Cadkin concern fee-shifting statutes other than the EAJA, they turn on the meaning of the term “prevailing party” and govern our interpretation here. See Perez-Arellano, 279 F.3d at 794 (noting that Buckhannon “sweeps ... broadly and its reasoning is persuasively applicable to an award of attorney’s fees under the EAJA”); Oscar, 541 F.3d at 981 (relying on Buckhannon to determine whether a defendant is a prevailing party); Cadkin, 569 F.3d at 1149 (same). We therefore conclude that the Milners and Bennett/Boyd are not prevailing parties and are not entitled to attorneys’ fees under the EAJA. IV. Although this particular dispute has been ongoing for some years now, for an even longer period of time, the Homeowners on Sandy Point had an agreement with the Lummi Nation to lease the tidelands. This allowed the upland owners to construct and maintain bulkheads, rip rap, and other shore defense structures on the tidelands in order to protect their property. The Sandy Point Homeowners had an opportunity to renew the lease for an additional 25 years, the maximum lease term allowed for Indian trust lands. 25 U.S.C. § 415. Additionally, throughout this litigation the Lummi have expressed a desire to negotiate a new agreement, and at least before commencement of this suit, the United States indicated that its concerns would be satisfied if the Homeowners entered into agreements with the Lummi. This action was avoidable. Perhaps the parties still will be able to reach an amicable settlement. However, because the Homeowners have so far been unable or unwilling to negotiate an agreement with the Lummi, we must pass on the merits of the dispute. For the reasons set forth above, we affirm the district court’s decisions on the trespass and RHA claims, and its decision not to grant fees under the EAJA. We find that the government did not carry its burden on the CWA claim against the Nicholsons; we therefore reverse on that claim. Each party is to bear its own costs on appeal. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. . The Treaty of Point Elliott is one of a series of treaties negotiated by Territorial Governor Isaac Stevens with various Pacific Northwest Indian tribes in the mid-1800s. See generally Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 661-62, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979); Nez Perce Tribe v. Idaho Power Co., 847 F.Supp. 791, 805-06 (D.Idaho 1994). . The "Gulf of Georgia” is now known as the Strait of Georgia. . Further complicating matters is the fact that the extent of the shore changes seasonally, though mean high water stays relatively constant. . Although the United States originally sued six landowners, the government and the Lummi Nation reached a settlement with one landowner and entered into a consent decree with another. . Under the doctrine of avulsion, a sudden and abrupt change in the shoreline — an avulsive event — does not alter the boundary line. New Jersey v. New York, 523 U.S. 767, 784, 118 S.Ct. 1726, 140 L.Ed.2d 993 (1998); California ex rel. State Lands Comm’n v. United States, 805 F.2d 857, 864 (9th Cir.1986). The Homeowners do not appeal the district court’s ruling that the doctrine of avulsion does not apply. . In some instances, "[c]ontroversies governed by federal law do not inevitably require resort to uniform federal rules,” and it may be appropriate to borrow from state law for the rule of decision. California ex rel. State Lands Comm’n v. United States, 457 U.S. 273, 283, 102 S.Ct. 2432, 73 L.Ed.2d 1 (1982). For example, in Wilson v. Omaha Indian Tribe, the Supreme Court held that although federal law determined the question of ownership of land continuously held by the United States for an Indian tribe, state law could be borrowed to provide the applicable rules of avulsion and accretion. 442 U.S. 653, 670-71, 673-74, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979). While it is clear that the federal common law of trespass applies here, it is less clear whether the application of the common enemy doctrine, discussed below, should be decided based on a uniform federal common law or borrowed Washington state law, which holds that the doctrine does not apply to sea water. See Grundy v. Thurston County, 155 Wash.2d 1, 117 P.3d 1089, 1094 (2005). We note that it would be anomalous for the Grundy decision to apply to other coastal property owners in Washington, yet not to this small group of homeowners. Nevertheless, we need not decide the issue, because we conclude that the common enemy doctrine is inapplicable regardless of whether Grundy provides the federal rule of decision. . The United States argues that the Homeowners cannot assert Washington state’s title in the tidelands because in a trespass action ”[t]itle in a third person may not be alleged by a defendant who is not in privity of title with the third person,” and the Homeowners do not claim to be in privity with the state. 75 Am.Jur.2d Trespass § 62 (2009). However, this applies where the plaintiff is the one in possession and, in moving for partial summary judgment on the issue of ownership, the United States did not present evidence showing that it or the Lummi Nation was currently in possession of the tidelands. See Thomsen v. State, 70 Wash.2d 92, 422 P.2d 824, 827 (1966) ("The presumption of the law that the person who has the possession has the property may not be rebutted by evidence that the property was in a third person, when offered as a defense by one who claims no title and was a wrongdoer.”). The United States' issue preclusion argument is similarly without merit, since the pri- or cases that the government relies on do not involve the Homeowners and the Homeowners are not subject to the binding effect of the prior judgments. See Taylor v. Sturgell, -U.S. -, 128 S.Ct. 2161, 2172-73, 171 L.Ed.2d 155 (2008) (describing the six circumstances in which a nonparty can be bound by a prior decision). . Treaties and other agreements with Indians are liberally construed in favor of the Indians. Choctaw Nation v. United States, 318 U.S. 423, 431-32, 63 S.Ct. 672, 87 L.Ed. 877 (1943) ("Of course treaties are construed more liberally than private agreements[ ]____ Especially is this true in interpreting treaties and agreements with Indians; they are to be construed, so far as possible, in the sense in which the Indians understood them, and ‘in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people' " (citations omitted)). The President’s power to "remove” the tribes from the specified reservations to "such other suitable place ... as he may deem fit” therefore encompasses the power to expand the boundaries of the reservation, since the President has the discretion to deem an expanded reservation a suitable replacement for the current one and "remove” the tribes from the smaller reservation to the expanded one. . While the rights and duties of riparian landowners — -those with land fronting a river or stream — can differ from those of littoral landowners — those with property fronting an ocean, sea, or lake — the rules often overlap and sometimes the distinction is elided altogether. See, e.g., Tusher v. Gabrielsen, 68 Cal.App.4th 131, 146-47, 80 Cal.Rptr.2d 126 (1998); Thies v. Howland, 424 Mich, at 288 n. 2, 380 N.W.2d 463 (1985); but see In re Opinions of the Justices, 118 Me. 503, 106 A. 865, 868-69 (1919) (stating that a riparian owner may lower a stream so long as the use is reasonable but that a littoral owner may not draw down a lake below the natural level). . Many jurisdictions have dispensed with the doctrine altogether and instead apply a rule of reasonableness, under which "each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable.” Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4, 8 (1956); see, e.g., Weinberg v. N. Alaska Dev. Corp., 384 P.2d 450, 452 (Alaska 1963); Bunch v. Coachella Valley Water Dist., 15 Cal.4th 432, 63 Cal.Rptr.2d 89, 935 P.2d 796, 801 (1997); Rodrigues v. State, 52 Haw. 156, 472 P.2d 509, 516 (1970); see generally, Wendy B. Davis, Reasonable Use Has Become the Common Enemy, 9 Alb. L. Envtl. Outlook J. 1, 9-10 (2004) (noting that 21 states have adopted the "reasonable use” rule). While Washington has retained the doctrine, it has modified the rule so that property owners must exercise due care by "acting in good faith and avoiding unnecessary damage to the property of others,” Currens v. Sleek, 138 Wash.2d 858, 983 P.2d 626, 629-30 (1999), and by making the rule inapplicable to sea water. Grundy, 117 P.3d at 1094. It is far from clear, then, that the common enemy rule, as advocated by the Homeowners, is even the dominant view. . Amicus curiae Building Industry Legal Defense Foundation ("BILD”) argues that such a rule will have dramatically harmful consequences, given the many coastal properties with shore defense structures. This overestimates the reach of our opinion, however. Because of the equal footing doctrine and the Submerged Lands Act, 43 U.S.C. § 1311, the states hold title to most of the tidelands. Most disputes that arise between the states and littoral property owners over tideland boundaries and the use of tidelands are ultimately a matter for state courts to adjudicate under state law. The states, of course, must consider the public interest — not just those of waterfront property owners — in deciding how to manage their tidelands, as they already have been doing. As with many property disputes, those between tideland holders and littoral property owners will not be easy to resolve and they may simply require the parties to compromise, even if that means not everyone is entirely satisfied with the results. . The Corps' regulations confirm that structures may be obstructions without regard to how the structures came to be in navigable waters. The Corps generally requires a permit "for structures and/or work in or affecting navigable waters," without reference to whether the structure is being initially erected in navigable waters or has already been sitting there. 33 C.F.R. § 322.3(a). . As in Leslie Salt, we express no opinion as to whether or at what point the government may be estopped from asserting its jurisdiction because land has long ago been filled in, as was the case in United States v. Stoeco Homes, Inc., 498 F.2d 597, 610-11 (3d Cir. 1974). See 578 F.2d at 753. There is no indication here that the United States excessively delayed its enforcement efforts. . Locally, the policy of the Seattle District of the Corps has been to draw the high tide line at the mean higher high water (MHHW) line, which is calculated by averaging over 18.6 years the highest of the two high tides that occur in a day and projecting that line onto the shore. Leslie Salt, 578 F.2d at 746. Because the two daily Pacific coast tidal cycles can vary greatly in height, the difference between the MHHW line and the MHW line— the average of both high tides occurring in a day- — can be relatively large on the west coast of the United States. Id. In fashioning a remedy for the CWA violation, Judge Leigh-ton took the Corps’ local enforcement policy into account, but, contrary to the government's position, this does not necessarily conflict with what Judge Rothstein found on summary judgment. . This would not change the fact that waters which were in the past navigable are still considered such, even if they are no longer navigable in fact. See United States v. Appalachian Elec. Power Co., 311 U.S. 377, 408, 61 S.Ct. 291, 85 L.Ed. 243 (1940) ("When once found to be navigable, a waterway remains so."); 33 C.F.R. § 328.3(a)(1). We also reiterate Leslie Salt’s admonition that the full extent of the Corps’ CWA jurisdiction over waters of the United States “is in some instances not limited to the MHW or the MHHW line.” Id. at 742. For example, where there are adjacent wetlands or intermittent streams, the Corps still has jurisdiction, even though these areas are beyond the normal ebb and flow of the tide. See, e.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 139, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985); United States v. Moses, 496 F.3d 984, 989 (9th Cir.2007). Additionally, some discharges on dry land can be CWA violations. See Leslie Salt, 578 F.2d at 753 n. 12 (citing United States v. Holland, 373 F.Supp. 665 (M.D.Fla.1974), as an example of a discharge above MHHW line that violated CWA). . Since the stipulation did not state that the dismissal was with prejudice, it was without prejudice. Fed. R. Civ. Proc. 41(a)(1)(B).

Solid Waste Agency v. United States Army Corps of Engineers

DIANE P. WOOD, Circuit Judge. This case involves the efforts of a consortium of Illinois municipalities to find a place to dump their trash. The Solid Waste Agency of Northern Cook County (“SWANCC”) thought that it had found such a spot in a 533-acre parcel of land straddling Cook and Kane Counties, Illinois. Before its “balefill” could open, however, approximately 17.6 acres of ponds and small lakes located on the parcel had to be filled in. This case presents the question whether the U.S. Army Corps of Engineers (“the Corps”), acting under § 404 of the Clean Water Act (“the Act”), 33 U.S.C. § 1344, had jurisdiction to require SWANCC to obtain a permit for its fill operations. SWANCC initially applied for such a permit, but the Corps denied it. SWANCC then sued, claiming both that the Corps had no business meddling in the matter at all and that it was wrong on the merits. For its part, the Corps claimed jurisdiction under the so-called “migratory bird rule,” which interprets the Act as extending to certain intrastate waters based on their actual or potential use as habitat for migratory birds. (The parties dispute whether this is a mere interpretation of statutory language, or something that should be regarded as a freestanding rule — a point that we discuss later in this opinion. Our use of the common phrase “migratory bird rule” is not intended to suggest a position on that issue.) The district court granted summary judgment in the Corps’ favor on the jurisdictional point. At that point, SWANCC decided voluntarily to dismiss the remainder of its claims, so that the district court could enter a final judgment from which it could appeal. See 28 U.S.C. § 1291. We conclude that the Corps properly asserted jurisdiction in this matter, and we therefore affirm. I SWANCC is a group of 23 municipalities that banded together to form a municipal corporation for the purpose of locating and developing a disposal site for nonhazardous waste. It found and purchased the 533-acre site to which we have already referred, from which it hoped to carve out approximately 410 acres for a “balefill”— that is, a landfill where the waste is baled before it is dumped. Approximately 298 acres of the proposed balefill site is what is known as an early successional stage forest. At one time, it was a strip mine, but when the mining operation'shut down approximately 50 years ago, a labyrinth of trenches and other depressions remained behind. Over time, the land evolved into an attractive woodland vegetated by approximately 170 different species of plants. What were once gravel pits are now over 200 permanent and seasonal ponds. These ponds range from less than one-tenth of an acre to several acres in size, and from several inches to several feet in depth. The forest is also home to a variety of small animals. Most important for our purposes are the 100-plus species of birds that have been observed there. These include many endangered, water-dependent, and migratory birds. Among the species that have been seen nesting, feeding, or breeding at the site are mallard ducks, wood ducks, Canada geese, sandpipers, kingfishers, water thrushes, swamp swallows, redwinged blackbirds, tree swallows, and several varieties of herons. Most notably, the site is a seasonal home to the second-largest breeding colony of great blue herons in northeastern Illinois, with approximately 192 nests in 1993. This litigation arose because the proposed balefill project would require the filling of approximately 17.6 acres of semi-aquatic property within the forested area. Section 404 of the Act prohibits the discharge of fill material into “the navigable waters” without a permit issued by the Secretary of the Army, acting through the Chief of Engineers. 33 U.S.C. § 1344(a). The term “navigable waters” is defined in the statute as “the waters of the United States, including the territorial seas.” Id. § 1362(7). Although the Act itself provides no further explanation of which waters are subject to § 404’s requirements, regulations issued by the Environmental Protection Agency (“EPA”) and the Corps define the phrase “waters of the United States” to- include “intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce.” 33 C.F.R. § 328.3(a)(3). In March 1986, SWANCC contacted the Corps to find out if a particular 267-acre parcel within the proposed balefill site included “wetlands” within the meaning of the Act, such that SWANCC would have to obtain a § 404 permit in order to fill it in. After an on-site inspection, the Corps initially decided that the site did not include protected wetlands and therefore did not fall within its regulatory jurisdiction. One year later, in February 1987, SWANCC contacted the Corps to request a determination as to whether a 414-acre parcel of the site included “wetlands.” The Corps again responded in the negative. The Corps changed its position with regard to its jurisdiction over the balefill site, however, after the Illinois Nature Preserves Commission (a state agency) informed it that a number of migratory bird species had been observed there. This new information made all the difference to the Corps, because of the so-called migratory bird rule. This rule, or interpretive convention, reflects the fact that the definition of “waters of the United States” found in 33 C.F.R. § 328.3(a)(3) has long been understood by the EPA and the Corps to include all waters, including those otherwise unrelated to interstate commerce, “which are or would be used as habitat by birds protected by Migratory Bird Treaties” or “which are or would be used as habitat by other migratory birds which cross state lines.” 51 Fed.Reg. 41,206, 41,217 (1986) (“1986 preamble”). In a letter to SWANCC dated November 16,1987, the Corps explained that its two previous determinations that the site did not fall within its jurisdiction were based on its finding that the site did not meet the definition of “wetland.” In contrast, the latest determination — that the Corps did have jurisdiction over the site — was based on a different theory entirely. Regardless of wetland status, it now appeared that the aquatic areas of the site “are or could be used as habitat by migratory birds which cross state lines.” In response to the Corps’ notification that it intended to exercise jurisdiction over the site, SWANCC submitted an application for a § 404 permit. The Corps denied that application, finding that all of the affected waters in the site were in fact used as habitat by migratory birds (and thus were not merely potential habitat). SWANCC then submitted a revised application that was also denied. At this stage in the litigation, SWANCC has abandoned its challenge to the merits of the Corps’ decisions and has instead focused exclusively on its challenge to the migratory bird rule as a basis for the Corps’ jurisdiction. Accordingly, we accept as true the Corps’ factual findings with regard to SWANCC’s permit application, including the crucial finding that the waters of this site were a habitat for migratory birds. II SWANCC offers three arguments to support its position that the Corps had no authority to require it to obtain a permit: (1) Congress lacked the power to grant the Corps regulatory jurisdiction over isolated, intrastate waters based on the presence of migratory birds alone; (2) the Corps exceeded its statutory authority in interpreting the Act to confer jurisdiction as provided by the migratory bird rule; and (3) the migratory bird rule is invalid because it was not promulgated in accordance with the notice and comment requirements of the Administrative Procedure Act (“APA”), 5 U.S.C. § 553. We begin with the most ambitious of SWANCC’s arguments, which is that the migratory bird rule is unconstitutional in fight of the Supreme Court’s decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Prior to Lopez, it had been established that Congress’ powers under the Commerce Clause were broad enough to permit regulation of waters based on the presence of migratory birds. See, e.g., Rueth v. EPA, 13 F.3d 227, 231 (7th Cir.1993); Leslie Salt Co. v. United States (Leslie I), 896 F.2d 354, 360 (9th Cir.1990). We must decide whether Lopez now compels the opposite conclusion. In Lopez, the Court reaffirmed the well-established principle that a federal statute based on the Commerce Clause must serve one of three purposes: (1) regulation of the channels of interstate commerce; (2) regulation or protection of the instrumen-talities of interstate commerce, or persons or things in interstate commerce; or (3) regulation of activities that “substantially affect” interstate commerce. Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624; see also Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 276, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); United States v. Wilson, 159 F.3d 280, 285 (7th Cir.1998). The gun control law at issue in Lopez, like the migratory bird rule challenged here, could only have been sustained as an exercise of the third variety of regulatory power. The Lopez Court concluded that the statute before it, which made it a crime “knowingly ... [to] possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone” did not meet the “substantially affects” test because (1) it was a criminal statute which, by its terms, had nothing to do with interstate commerce or commercial transactions; (2) it contained no jurisdictional element to ensure that in each case the firearm in question had in fact affected interstate commerce; and (3) Congress had offered no legislative findings to support the conclusion that possessing a gun in a school zone affected interstate commerce. Lopez, 514 U.S. at 559-62, 115 S.Ct. 1624; see also Wilson, 159 F.3d at 286. SWANCC urges us to conclude that the migratory bird rule suffers from the same defects. But such a conclusion would overlook important differences between the statute before the Court in Lopez and the one we are considering. This court has noted previously that Lopez expressly recognized, and in no way disapproved, the cumulative impact doctrine, under which a single activity that itself has no discernible effect on interstate commerce may still be regulated if the aggregate effect of that class of activity has a substantial impact on interstate commerce. United States v. Hicks, 106 F.3d 187, 189-90 (7th Cir.1997), citing Lopez, 514 U.S. at 561, 115 S.Ct. 1624; see also United States v. Jones, 178 F.3d 479 (7th Cir.1999); United States v. Thomas, 159 F.3d 296, 298 (7th Cir.1998). This approach, which is most closely associated with the Supreme Court’s decision in Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), indicates the relevant legal question for our case is whether the destruction of the natural habitat of migratory birds in the aggregate “substantially affects” interstate commerce. We observed in Hoffman Homes, Inc. v. EPA, 999 F.2d 256 (7th Cir.1993), that “[throughout North America, millions of people annually spend more than a billion dollars on hunting, trapping, and observing migratory birds. Yet the cumulative loss of wetlands has reduced the populations of many species and consequently the ability of people to hunt, trap, and observe those birds.” Id. at 261. Statistics produced by the U.S. Census Bureau reveal that approximately 3.1 million Americans spent $1.3 billion to hunt migratory birds in 1996, and that about 11 percent of them traveled across state lines to do so. Fish & Wildlife Service, U.S. Dep’t of the Interior & Bureau of the Census, U.S. Dep’t of Commerce, 1996 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation 25 (November 1997). Another 17.7 million people spent time observing birds in states other than their states of residence; 14.3 million of these took trips specifically for this purpose; and approximately 9.5 million traveled for the purpose of observing shorebirds, such as herons. Id. at 45. There is no need to dally on this point: we find (once again) that the destruction of migratory bird habitat and the attendant decrease in the populations of these birds “substantially affects” interstate commerce. The effect may not be observable as each isolated pond used by the birds for feeding, nesting, and breeding is filled, but the aggregate effect is clear, and that is all the Commerce Clause requires. SWANCC objects that the migratory bird rule cannot serve to define the Corps’ jurisdiction, because the rule excludes nothing. The United States is home to somewhere between 2.5 and 6 billion birds, two-thirds of which migrate. Virtually any body of water could serve as a temporary habitat for at least some of these birds. However, any suggestion that next the Corps will be trying to regulate the filling of every puddle that forms after a rainstorm, at least if a bird is seen splashing in it, misses the point. A “habitat” is not simply a place where a bird might alight for a few minutes, as SWANCC suggests, but rather “the place where a plant or animal species naturally lives or grows.” Webster’s Third New International Dictionary 1017 (1993). Before the Corps may assert jurisdiction under the migratory bird rule, it must first make a factual determination that a particular body of water provides a habitat for migratory birds, which it has done here. Last, SWANCC offers a broad policy-based argument for rejecting jurisdiction under the migratory bird rule. The rule is, it claims, inconsistent with the principles of federalism that motivated the Court in Lopez, because it erodes the “distinction between what is truly national and what is truly local.” Lopez, 514 U.S. at 567-68, 115 S.Ct. 1624. But this argument works only if, as SWANCC asserts, the protection of migratory bird habitat is a matter of local concern only. Once again, that argument is refuted by the numerous international treaties and conventions designed to protect migratory birds, see, e.g., Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, U.S.-Japan, 25 U.S.T. 3331, T.I.A.S. No. 7990 (1972); Convention for the Protection of Migratory Birds and Game Mammals, U.S.-Mex., 50 Stat. 1311, T.S. No. 912 (1936); Convention for the Protection of Migratory Birds, U.S.-Gr. Brit., 39 Stat. 1702, T.S. No. 628 (1916), as well as the case law recognizing the “national interest of very nearly the first magnitude” in protecting such birds, North Dakota v. United States, 460 U.S. 300, 309, 103 S.Ct. 1095, 75 L.Ed.2d 77 (1983); see also Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920). Even less persuasive is SWANCC’s suggestion that giving a federal agency (here, the Corps) the power to override decisions by local land use and zoning boards to permit the filling of local waters conflicts with notions of state sovereignty. To the contrary, because the regulation of migratory bird habitat is a permissible exercise of Congress’ authority, the Supremacy Clause, U.S. Const. art. VI, cl. 2., squarely supports the legitimacy of giving precedence to federal law in this area. Ill SWANCC next contends that, even if Congress lawfully could have granted the Corps jurisdiction over isolated bodies of water based on the presence of migratory birds, it did not do so. As noted above, the Act expressly limits the Corps’ jurisdiction to “the waters of the United States.” The EPA and the Corps have defined this term to include “[a]ll other waters ... the use, degradation or destruction of which could affect interstate or foreign commerce.” They further have interpreted the phrase “could affect interstate or foreign commerce” as permitting jurisdiction based on the presence of migratory birds. It is this second level of agency interpretation that SWANCC deems excessive. We review an agency’s interpretation of a statute it is charged with administering under the standard outlined in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The first question is whether the plain meaning of the text of the statute either supports or opposes the regulation. If so, the analysis ends with the court’s application of the plain meaning. Id. at 842, 104 S.Ct. 2778. But if the statute is either ambiguous or silent on the issue, the court must defer to the agency interpretation so long as it is based on a reasonable reading of the statute. Id. at 843, 104 S.Ct. 2778. It is well established that the geographical scope of the Act reaches as many waters as the Commerce Clause allows. See, e.g., Rueth, 13 F.3d at 231; United States v. Huebner, 752 F.2d 1235, 1239 (7th Cir.1985); United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir.1979). Thus, if Congress possesses the power to regulate a body of water under the Act, generally this court will conclude that it has in fact done so. Accordingly, because Congress’ power under the Commerce Clause is broad enough to permit regulation of waters based on the presence of migratory birds, it is certainly reasonable for the EPA and the Corps to interpret the Act in such a manner. Accord Leslie Salt I, 896 F.2d at 360. SWANCC believes that this conclusion is at odds with the Fourth Circuit’s decision in United States v. Wilson, 133 F.3d 251 (4th Cir.1997). Wilson involved a challenge to 33 C.F.R. § 328(a)(3), the regulation that defines “waters of the United States” to include all waters “the use, degradation or destruction of which could affect interstate or foreign commerce.” The court found the regulation to be an unreasonable interpretation of the Act based on its suspicion that Congress lacks the power to regulate waters that “could” affect interstate or foreign commerce. In our case, however, the question whether Congress may regulate waters based on their potential to affect interstate commerce is not presented, because the unchallenged facts show that the filling of the 17.6 acres would have an immediate effect on migratory birds that actually use the area as a habitat. Thus, we need not, and do not, reach the question of the Corps’ jurisdiction over areas that are only potential habitats. Moreover, we note that SWANCC has not attacked 33 C.F.R. § 328(a)(3) here. Instead, it has limited its objections to the propriety of the migratory bird rule as an interpretation of 33 C.F.R. § 328(a)(3). SWANCC’s remaining statutory interpretation argument asks us to find the migratory bird rule unreasonable because it is designed to preserve wildlife rather than water quality. This point overlooks the fact that the Act’s stated purpose is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). SWANCC’s suggestion that the Corps’ jurisdiction must be defined solely by reference to water quality is itself inconsistent with the Act and must be rejected. IV Last, SWANCC challenges the migratory bird rule on the ground that it was promulgated in violation of the notice and comment requirements of the APA. See 5 U.S.C. § 553. Our starting point here is with the fact that the APA does not require administrative agencies to follow notice and comment procedures in all situations. Section 553(b)(3)(a) specifically exempts “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice” from the requirement. In order to succeed on its APA claim, then, SWANCC must convince us that the migratory bird rule is a legislative (also termed “substantive”) rule, rather than an interpretive rule or policy statement. See Metropolitan Sch. Dist. of Wayne Township v. Davila, 969 F.2d 485, 489-90 (7th Cir.1992); General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1566-67 (D.C.Cir.1984). That, in our view, it cannot do. We explained the difference between legislative and interpretive rules at some length in Hoctor v. U.S. Dept. of Agriculture, 82 F.3d 165 (7th Cir.1996), where we found that a rule requiring certain wild animal containment fences to be eight feet tall was legislative. The reason for this was straightforward: nothing in the idea of a “secure” containment could tell someone whether T% feet, 8 feet, or 8Hl feet, would be “secure” enough. The statute in question (the Animal Welfare Act, 7 U.S.C. § 2131 et seq.) did not impose a duty to build a fence of a certain height. Instead, it authorized the agency to impose a specific obligation that would implement the general statutory goals. Here, the statute itself defines the jurisdictional reach of the Act, and regulations- issued under the notice-and-comment procedures have elaborated further upon that definition. There is, following Hocto'is common-sense approach, something to interpret here: the use of the term “waters” and “navigable waters” in 33 U.S.C. §§ 1344(a) and 1362(7), and the specific examples of such waters given in 33 C.F.R. § 328.3(a)(3). It is also noteworthy that the migratory bird “rule” first made its appearance in the Federal Register publication of the Corps’ 1986 recodification of the regulatory definition of “waters of the United States” in 33 C.F.R. § 328(a)(3), when it moved these rules from Part 323 to Part 328 of Title 33 of the Code. See 51 Fed.Reg. 41206, 41217 (1986). The preamble offered several examples of waters that came within the regulatory definition, including those used as habitat for migratory birds, as well as examples of waters that normally would not fall within the definition. This, in our view, was interpretation. Moreover, it is hard to see what would have been different if formal notice-and-comment rulemaking had been used, except perhaps the page of the Federal Register on which this statement appeared. We do not wish to discourage agencies from offering concrete examples of the ways in which their rules will apply, see Hoctor, 82 F.3d at 170, and we believe that is all that the Corps and the EPA did here. The Corps has also argued that SWANCC’s challenge to the migratory bird rule comes too late, because SWANCC did not file suit in the district court until December 1994, more than six years after the migratory bird rule was first published. There is a general six-year statute of limitations for civil actions against the United States found in 28 U.S.C. § 2401(a), which applies to lawsuits brought pursuant to the APA. See Polanco v. United States Drug Enforcement Admin., 158 F.3d 647, 652 (2d Cir.1998); Sierra Club v. Slater, 120 F.3d 623, 631 (6th Cir.1997); see also Village of Elk Grove Village v. Evans, 997 F.2d 328, 331 (7th Cir.1993) (recognizing cases holding same, but not expressly reaching the issue). Even if the fact that the Corps did not raise this argument in the district court does not bar it now from making the argument, we doubt that a party must (or even may) bring an action under the APA before it knows that a regulation may injure it or even be applied to it. Compare United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (claim under the Federal Tort Claims Act accrues at the time plaintiff knows of both the existence and cause of his injury). We therefore do not reach the Corps’ limitations argument, since it would have no effect on the outcome in light of our resolution of SWANCC’s substantive APA challenge. We conclude that the decision to regulate isolated waters based on their actual use as habitat by migratory birds is within Congress’ power under the Commerce Clause, and that it was reasonable for the Corps to interpret the Act as authorizing this regulation. Accordingly, we Affirm the judgment of the district court,

Village of Oconomowoc Lake v. Dayton Hudson Corp.

EASTERBROOK, Circuit Judge. Target Stores, a division of Dayton Hudson Corporation, is building a warehouse (which it calls a “distribution center”) in the City of Oconomowoc, Wisconsin. It holds all necessary state and local permits. Federal clearance is unnecessary, for the Environmental Protection Agency has authorized Wisconsin to perform the tasks required by the Clean Air and Clean Water Acts. The Village of Oconomowoc Lake, a nearby municipality, wishes the warehouse would disappear. We have for decision one among more than a dozen suits and administrative proceedings the Village has commenced in pursuit of that objective. Warehouses do not spew pollutants, but they have indirect effects. Trucks that carry goods to and from the warehouse emit nitrogen oxides and other gasses. A well-sited warehouse cuts down on wasted movement of goods, and therefore on pollution in the United States as a whole, but increases the volume of emissions nearby. While parked near the warehouse trucks drip oil, which collects in the runoff from a storm. A few inches of rain falling on a large paved surface means many acre-feet of water. This warehouse has a retention pond, from which the water seeps into the ground — carrying hydrocarbons and other unwelcome substances, the Village fears. State officials concluded that the warehouse would be such a trivial source of pollution that it should not be classified as a “major source” requiring full scrutiny. The Village wanted a federal judge to inquire further, but the judge declined to cooperate. The Clean Air Act requires permits only for “stationary sources” of pollution. A definitional provision provides not only that vehi-cíes are not “stationary sources” but also that vehicular emissions are not attributed to the buildings served as points of origin or destination. 42 U.S.C. § 7602(z); see also 42 U.S.C. § 7410(a)(5)(C). Whatever requirements the state has added to federal law must be enforced in state court, the judge held. As for the rainwater runoff: the Clean Water Act regulates discharges into “navigable waters from a point source”. 33 U.S.C. § 1362(12). Parking lots and retention ponds are not exactly “navigable,” but another statute defines “navigable waters” as all “waters of the United States”. 33 U.S.C. § 1362(7). Some water from the pond evaporates into the air, and the rest seeps into the ground. Even though ground water eventually reaches streams, lakes, and oceans, the court held, it is not part of the “waters of the United States”. The district court accordingly dismissed the complaint under Fed. R.Civ.P. 12(b)(1). As a rule, persons wishing to sue under the Clean Air Act must give 60 days’ notice to the potential defendant. 42 U.S.C. § 7604(b). Notice provisions pervade environmental statutes, and would-be plaintiffs often appear to be desperate to evade them. Hallstrom v. Tillamook County, 493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989); Supporters to Oppose Pollution, Inc. v. Heritage Group, 973 F.2d 1320 (7th Cir.1992). Why plaintiffs are unwilling to wait even 60 days — -when an effort to jump the queue may lead to outright dismissal of the case under Hallstrom — eludes us. The Village filed suit only three days after giving notice. To justify this expedition, it invoked 42 U.S.C. § 7604(a)(3), which is not subject to the 60-day rule. Although this enabled it to sue 57 days sooner than it could have done had it used § 7604(a)(1) as the foundation for the suit, the strategy does little besides illustrate the adage that haste makes waste. (This saying predates the Clean Air Act and shows that not all waste is within federal jurisdiction.) Section 7604(a)(3) permits a citizen to file a civil action against any person who proposes to construct or constructs any new or modified major emitting facility without a permit required under ... part D of subchapter I of this chapter (relating to nonattainment) or who is alleged to be in violation of any condition of such permit. The warehouse is in a “nonattainment” area, and the Village contends that it lacks the permit required for a “major emitting facility”. Wisconsin treated the warehouse as a minor rather than a major source. But to use § 7604(a)(3) the Village had to show that “part D of subehapter I of this chapter” requires a major-facility permit, and it is impossible to see how this could be so. Recall that the warehouse itself does not emit pollutants and that the Clean Air Act does not require the attribution of motor-vehicle emissions to stationary sources. 42 U.S.C. § 7410(a)(5)(A), (C); see also South Terminal Corp. v. EPA, 504 F.2d 646, 668 n. 24 (1st Cir.1974). “[P]art D of subchapter I” does not require Dayton Hudson to obtain a permit; any such requirement must come from Wisconsin law and therefore cannot serve as the foundation for suit under § 7604(a)(3). If the Village had waited for the prescribed 60 days, it would have been eligible to use § 7604(a)(1), which authorizes citizen suits against any person ... who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation. If this had been the foundation of the suit, and if we were to assume that the emissions from trucks going to and from the warehouse violate Wisconsin’s implementation plan — for the state has elected to regulate such indirect emissions despite the lack of federal compulsion to do so — then it would have been necessary to decide whether a provision of a state plan going beyond the federal minima is “an emission standard or limitation under this chapter”. States must clear their implementation plans with the EPA and enforce them faithfully; it is accordingly possible to characterize a state’s rules as “an emission standard or limitation under this chapter” in the sense that it is adopted under the chapter and includes rules that satisfy the chapter. It may even be that rules going beyond federal requirements are essential to satisfy federal law. How could that be? Suppose the EPA approved a plan that was less stringent in some respects than the EPA would have demanded, only because in other respects it did more than federal law required and the rules, taken as a whole, would produce the desired cleanliness. Then failure to comply with the “extra” rules would reduce air quality below the federal minimum. The EPA believes that federal courts (and the Administrator) may enforce provisions in .state plans. 40 C.F.R. § 51.165(a)(l)(xiv). We need not decide whether this means enforcement under § 7604(a)(1), as some courts have held. E.g., Coalition Against Columbus Center v. New York City, 967 F.2d 764, 771 (2d Cir.1992); Delaware Valley Citizens Council v. Davis, 932 F.2d 256, 265-67 (3d Cir.1991). See also Sierra Club v. Larson, 2 F.3d 462, 469 (1st Cir.1993) (remarking that indirect-source rules in a state implementation plan “may at least in some circumstances be within the purview of a citizens suit under 42 U.S.C. § 7604.”). But see Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co., 12 F.3d 353, 358-60 (2d Cir.1993) (provisions of state plans exceeding federal requirements are not enforceable under provisions of the Clean Water Act parallel to § 7604). There will be ample opportunity for full consideration when the need arises. The Village’s claim under the Clean Water Act does not depend on any state rule or plan. This time the obstacle is the limitation of the Act’s coverage to the “waters of the United States.” Rainwater runoff from the 110-acre site (including 25 acres of paved parking) will collect in a 6-acre artificial pond. The pond is supposed to retain oil, grease, and other pollutants while “exfiltrating” the water to the ground below. The Clean Water Act is a broad statute, reaching waters and wetlands that are not navigable or even directly connected to navigable waters. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). But not even the EPA shares Justice Story’s view that the national government has regulatory power over every drop of water: “It was said of the late Justice Story, that if a bucket of water were brought into his court with a corn cob floating in it, he would at once extend the admiralty jurisdiction of the United States over it.” Note, 37 Am.L.Rev. 911, 916 (1903). See DeLovio v. Boit, 7 Fed.Cas. 418 (No. 3,776) (CC Mass.1815). The Agency’s regulatory definition of “waters of the United States” includes “intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce”. 40 C.F.R. § 230.3(s)(3). Hoffman Homes, Inc. v. Administrator, EPA, 999 F.2d 256, 260-61 (7th Cir.1993), concluded that the EPA did not exceed its power when promulgating this definition but that even a rule with such broad scope did not cover a one-acre wetland 750 feet from a small creek. A six-acre retention pond, farther from a body of surface water, is an easier case. The EPA’s definition speaks of “natural ponds”; Dayton Hudson built an artificial pond. What of the possibility that water from the pond will enter the local ground waters, and thence underground aquifers that feed lakes and streams that are part of the “waters of the United States”? Justice Story’s bucket was part of the navigable waters in this sense. We know from Wickard v. Filbum, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), that wheat a farmer bakes into bread and eats at home is part of “interstate commerce” because these activities affect the volume of interstate shipments. On a similar rationale all ground waters could be thought within the power of the national government. Inland Steel Co. ¶. EPA 901 F.2d 1419, 1422 (7th Cir.1990) (reserving the question). But the Clean Water Act does not attempt to assert national power to the fullest. “Waters of the United States” must be a subset of “water”; otherwise why insert the qualifying clause in the statute? (No one suggests that the function of this phrase is to distinguish domestic waters from those of Canada or Mexico.) Neither the Clean Water Act nor the EPA’s definition asserts authority over ground waters, just because these may be hydrologically connected with surface waters. The omission of ground waters from the regulations is not an oversight. Members of Congress have proposed adding ground waters to the scope of the Clean Water Act, but these proposals have been defeated, and the EPA evidently has decided not to wade in on its own. The most concerted effort in Congress occurred in 1972, and the Senate Committee on Public Works explained why it had not accepted these proposals: Several bills pending before the Committee provided authority to establish Federally approved standards for groundwaters which permeate rock, soil, and other subsurface formations. Because the jurisdiction regarding groundwaters is so complex and varied from State to State, the Committee did not adopt this recommendation. S.Rep. No. 414, 92d Cong., 1st Sess. 73 (1972). See also Exxon Corp. v. Train, 554 F.2d 1310, 1325-29 (5th Cir.1977) (recounting this history). In other words, Congress elected to leave the subject to state law — and Wisconsin has elected to permit Target Stores to build a warehouse that will affect the local ground waters. Decisions not to enact proposed legislation are not conclusive on the meaning of the text actually enacted. Laws sometimes surprise their authors. But we are confident that the statute Congress enacted excludes some waters, and ground waters are a logical candidate. Two courts have held that ground waters are not part of the (statutory) “waters of the United States.” Exxon; Kelley v. United States, 618 F.Supp. 1103 (W.D.Mich.1985). The possibility of a hydrological connection cannot be denied, see Sierra Club v. Colorado Refining Co., 838 F.Supp. 1428 (D.Colo.1993); McClellan Ecological Seepage Situation v. Cheney, 763 F.Supp. 431, 437 (E.D.Cal.1989), but neither the statute nor the regulations makes such a possibility a sufficient ground of regulation. On several occasions the EPA has noted the potential connection between ground waters and surface waters, but it has left the regulatory definition alone. E.g., Preamble to NPDES Permit Application Regulations for Storm Water Discharges, 55 Fed.Reg. 47990, 47997 (Nov. 16, 1990) (“[T]his rule-making only addresses discharges to waters of the United States, consequently discharges to ground waters are not covered by this rulemaking (unless there is a hydrological connection between the ground water and a nearby surface water body.”)) Collateral reference to a problem is not a satisfactory substitute for focused attention in rule-making or adjudication. By amending its regulations, the EPA could pose a harder question. As the statute and regulations stand, however, the federal government has not asserted a claim of authority over artificial ponds that drain into ground waters. AFFIRMED.

Village of Oconomowoc Lake v. Dayton Hudson Corp.

MANION, Circuit Judge, concurring. I agree with the court’s holding that the plaintiffs claims invoking the Clean Air Act and the Clean Water Act should fail. For whatever reason the Village of Oconomowoc Lake wishes the warehouse would disappear (be it political, environmental, or simple resentment because it doesn’t get a bite at the tax base), the regulations under the Clean Air and Clean Water Acts do not facilitate the attack. In addition, I would not speculate how to characterize a citizen’s suit under § 7604(a)(1). Before federal courts begin deciding under the Clean Air Act whether or not such things as shopping malls are permissible because of their side effects, we should ensure that Congress has specifically authorized the EPA to regulate at that level. Nor would I suggest that the EPA can figuratively “wade in” to ground water as part of the waters of the United States without first having specific direction from Congress to do so. This would take more than a simple amendment of regulations by the administrators at the EPA. Regulations are promulgated at the direction of Congress, and at this juncture, Congress has not permitted collateral attacks against parking lots, septic tanks, and sprinkler systems — the natural consequence if we were to approve the interpretation espoused by the plaintiffs.

Leslie Salt Co. v. United States

FARRIS, Circuit Judge: This is an appeal from a district court decision denying the Army Corps of Engineers jurisdiction under the Clean Water Act, 33 U.S.C. § 1251 et seq., over a parcel of land near the San Francisco Bay. 700 F.Supp. 476. The Corps had sought to require the landowner to obtain a permit before draining and filling the land, which over many years had acquired some aquatic characteristics. The district court found that because these conditions were artificial and were in part caused by the government, the Corps lacked jurisdiction. We reverse and remand. BACKGROUND This dispute revolves around a 153 acre tract of undeveloped land south of San Francisco, called the Newark Coyote Property, owned by Leslie Salt. A road separates the property into two parcels, one of 143 acres (“parcel 143”) and one of 10 acres (“parcel 10”). The property abuts the San Francisco National Wildlife Refuge and lies approximately one quarter mile from the Newark Slough, a tidal arm of the San Francisco Bay. The present condition of the property, or rather its condition in late 1985 through 1986 when the Corps claimed jurisdiction, is the result of many artificial changes to the property over the last 100 years. Originally the property was pasture land. The first change occurred early in this century, when Leslie’s predecessors in interest constructed facilities for the manufacture of salt. They excavated pits on the eastern one-third of parcel 143 for depositing calcium chloride, and created large, shallow, water-tight basins on the western two-thirds for crystallizing salt. Salt production on the property effectively stopped in 1959. The calcium chloride pits and the crystallizers remained however, and each year they temporarily filled with water during the winter rainy season. The extent of ponding is limited, but standing water did form on the property and remain long enough for fish to live in the ponds. Plant life, which had been nonexistent due to the high salinity and compaction of the soil, formed in the crystallizers after Leslie plowed the property in 1983 to combat a dust problem. The property was also substantially affected by construction of a sewer line and public roads on and around the property. This construction created ditches, road beds, and most importantly, culverts which hydrologically connected the property to the Newark Slough. Caltrans, the state highway authority, also breached a levy on the wildlife refuge adjacent to the property and destroyed a tidegate which had prevented the tidal backflow from reaching Leslie’s property. The effect of all this human activity was to foster natural, ecological developments: tidewater reached the edges of Leslie’s property and caused the creation of some wetland features on the southern fringes. Migratory birds used the crystallizers and calcium chloride pits as habitat during the winter and spring when they were flooded. In addition, an endangered species, the salt marsh harvest mouse, used the property as habitat. The controversy over this property arose in late 1985 when Leslie started to dig a feeder ditch and siltation pond on parcel 143 in order to drain the land. The Corps soon became aware of this activity and responded by issuing a cease and desist order pursuant to its authority under Section 404 of the Clean Water Act. In that Act Congress directed the Corps, through the Secretary of the Army, to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). The Corps claimed that Leslie was discharging a pollutant (fill) into waters of the United States in violation of section 301 of the Act. The Corps also claimed that Leslie’s activities were obstructing the navigable waters of the United States in violation of section 10 of the Rivers and Harbors Appropriations Act. The Corps issued a second cease and desist order in early 1987 to stop Leslie from placing fill on parcel 10. The Corps issued that order in response to Leslie’s attempts to block a culvert that connected its property to the Newark Slough. In sum, the Corps claimed jurisdiction over the majority of the property. Leslie challenged that claim of jurisdiction and filed suit; the Corps countersued. The district court found in favor of Leslie on all grounds, holding that the property was not subject to the Corps’ jurisdiction. The United States appealed that decision. Save San Francisco Bay Association and the National Audubon Society intervened on behalf of the United States. The Corps now asserts jurisdiction over the property based on two separate theories which apply to two distinct portions of Leslie’s land. First, the Corps argues that most of parcel 10 and the southern tip of parcel 143 are adjacent wetlands that are part of the Corps’ Clean Water Act jurisdiction. To resolve this dispute we must first determine whether Congress intended that Clean Water Act jurisdiction should extend to property which government actions helped make aquatic. Because we find that it did, we then look to the Corps’ regulations interpreting the Act, to determine whether they allow Corps jurisdiction. The Corps’ second theory relates to the former crystallizers and calcium chloride pits. The Corps claims that these features are “other waters,” as defined by Corps’ regulations, that are subject to its jurisdiction. STANDARD OF REVIEW The district court’s findings of fact are subject to a clearly erroneous standard of review. Issues of law, as well as mixed questions of fact and law that involve consideration of legal concepts rather than essentially factual inquiries, are reviewable de novo. United States v. McConney, 728 F.2d 1195, 1200-02 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). When considering the Corps’ interpretation of the Clean Water Act we defer to the agency’s analysis if it is “reasonable and not in conflict with the expressed intent of Congress.” United States v. Riverside Bayview Homes, 474 U.S. 121, 131, 106 S.Ct. 455, 461, 88 L.Ed.2d 419 (1985); Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 844-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984). The agency’s interpretation of its own regulations is entitled to greater deference, amounting to a plain error standard. Montana Power Co. v. EPA, 608 F.2d 334, 345 (9th Cir.1979); Chemical Waste Management, Inc. v. EPA, 873 F.2d 1477 (D.C.Cir.1989). THE SOUTHERN PORTIONS OF THE PROPERTY The Corps claims that the southern portions of the property are wetlands within its jurisdiction. The district court denied the Corps jurisdiction for three reasons: (1) the wetland conditions were caused by the government, (2) the conditions were not “normal,” as required by 33 C.F.R. § 328.3(b), and (3) the property was not adjacent to waters of the United States, as required by 33 C.F.R. § 328.3(a)(7). A. Governmentally Caused Inundation We agree with the district court that Congress intended to create a very broad grant of jurisdiction in the Clean Water Act, extending to any aquatic features within the reach of the commerce clause power. See Leslie Salt Co. v. Froehlke, 578 F.2d 742, 755 (9th Cir.1978) (citing California v. EPA, 511 F.2d 963, 964 n. 1 (9th Cir.1975), rev’d on other grounds, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976)). However, the district court made an exception to this broad Congressional mandate and held that changes to the property caused by the government do not create jurisdiction. The court reasoned that a contrary holding would allow the Corps “to expand its own jurisdiction by creating some wetland conditions where none existed before.” While this is a valid concern, the facts of this case do not present such a problem. The district court relied upon United States v. City of Fort Pierre, 747 F.2d 464 (8th Cir.1984). In Fort Pierre, the Corps asserted section 404 jurisdiction over a dry slough that had begun to exhibit wetland characteristics as a direct result of the Corps’ dredging activity on a nearby river. The Eighth Circuit held that the Corps did not have jurisdiction due to the “peculiar facts and unique circumstances” of that case, in which “the Corps, as an unintended by-product of ordinary river maintenance, inadvertently create[d] a wetland-type ecological system on private property where no such system previously existed.” Id. at 466, 481. The Eighth Circuit recently reaffirmed limiting Fort Pierre to these specific facts. See United States v. Southern Inv. Co., 876 F.2d 606, 612 (8th Cir.1989). The factual situation in this case differs substantially from that in Fort Pierre. Here, the Corps was not directly and solely responsible for flooding Leslie’s land: Cal-trans constructed the culverts which allowed water to flow onto Leslie’s property; Caltrans and the Fish and Wildlife Service breached the levee on the wildlife refuge adjacent to Leslie’s property which allowed water to flow up the culverts; Caltrans and the Fish and Wildlife Service failed to place effective floodgates on the culverts; Leslie itself maintained floodgates which unknown third parties propped open. Contrary to the district court’s conclusion, the Corps did not itself create the wetland conditions and thereby attempt to expand its own jurisdiction. The fact that third parties, including the government, are responsible for flooding Leslie’s land is irrelevant. The Corps’ jurisdiction does not depend on how the property at issue became a water of the United States. Congress intended to regulate local aquatic ecosystems regardless of their origin. See, e.g., Swanson v. United States, 789 F.2d 1368 (9th Cir.1986) (Corps construction of a dam creates waters under Corps jurisdiction); United States v. Tull, 769 F.2d 182, 184 (4th Cir.1985) (federal construction of mosquito-control ditch creates waters under Rivers and Harbors Act jurisdiction), rev’d on other grounds, 481 U.S. 412, 414 n. 1, 107 S.Ct. 1831, 1834 n. 1, 95 L.Ed.2d 365 (1987); United States v. DeFelice, 641 F.2d at 1175 (illegal and unauthorized acts of third parties can create Rivers and Harbors Act jurisdiction), cert. denied, 454 U.S. 940, 102 S.Ct. 474, 70 L.Ed.2d 247 (1981); Track 12 Inc. v. District Engineer, U.S. Army Corps of Engineers, 618 F.Supp. 448, 449 (D.Minn.1985) (state and locality construction of highway and sewage system creates Corps jurisdiction). If the Corps’ regulations under Clean Water Act jurisdiction harm a landowner, her appropriate response is to seek damages through inverse condemnation proceedings, not to restrict the scope of Corps jurisdiction. Riverside Bayview Homes, 474 U.S. at 128, 106 S.Ct. at 459. B. Normal Circumstances The district court’s second rationale for denying Corps jurisdiction over the southern portions of the property was a Corps regulation that defines wetlands as an area that “under normal circumstances” supports wetland vegetation. 33 C.F.R. § 328.3(b). Although the district court found the requisite wetland conditions, it held that “circumstances in those areas are not ‘normal,’ because the ability to support [wetland] vegetation was caused primarily by the government’s flooding of the wildlife refuge across [the road].” The district court’s interpretation of the “normalcy” requirement is tainted by its holding excluding governmentally created artificial waters from Corps jurisdiction. The phrase “under normal circumstances” is meant to exclude those areas which are not aquatic, but experience an “abnormal presence of aquatic vegetation.” 42 Fed.Reg. 37128 (1977). According to the district court’s findings, the southern fringes of the parcel are aquatic areas. The fact that these wetlands are man-made does not make them “abnormal.” Whether the wetlands are artificially or naturally created is irrelevant to this determination. C. Adjacency We disagree with the district court’s third alternative holding, that this wetland is not adjacent to waters of the United States, as required by 33 C.F.R. § 328.3(a)(7). In reaching this conclusion, the district court again relied on its decision to exclude from consideration any consequences of the backflow through the culverts created by Caltrans and the Fish and Wildlife Service. In the absence of this erroneous holding, the southern portions of the property are adjacent to waters of the United States — the water in the culvert, which is directly connected to the Newark Slough. THE CRYSTALLIZERS AND PITS The Corps determined that the former crystallizers and calcium chloride pits qualified as “other waters” that were under Corps jurisdiction according to 33 C.F.R. § 328.3(a)(3). That section defines “waters of the United States” to include: All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce.... The district court held that the crystallizers and pits were not described by this section for two reasons. First, because they are artificial structures and the regulation lists only natural formations. Second, the court concluded that the ponding was too temporary to qualify as other waters. The district court also addressed but did not decide the question of whether the property has a sufficient connection to interstate commerce. A. Artificial vs. Natural Formations The district court applied the doctrine of ejusdem generis to construe the regulations to exclude artificially created waters. The court noted that all the waters listed as “other waters” in section 328.3(a)(3) were naturally created, and concluded that the artificially created crystallizers and calcium chloride pits could not be covered by that section. The ejusdem generis rule of statutory construction is used to illuminate the intent of the drafters; when the rule conflicts with other, clearer indications of intent, its results should be ignored. See Weyerhaeuser S.S. Co. v. United States, 372 U.S. 597, 601, 83 S.Ct. 926, 928, 10 L.Ed.2d 1 (1963); Black’s Law Dictionary, 464 (5th ed. 1979). Reliance on the rule is inappropriate in this ease. First, the district court’s interpretation conflicts with other parts of the Corps’ regulations which assert that the Corps generally has jurisdiction over man-made waters under both the Clean Water Act and the Rivers and Harbors Act. See 33 C.F.R. §§ 328.5, 329.8. The Corps also defines at least one of the features listed in section 328.3(a)(3) to include artificial waters. See 33 C.F.R. § 323.2(b) (“lake” includes “a standing body of open water created by artificially blocking or restricting the flow of a river, stream or tidal area”). In addition, the Corps’ comments to the final regulations support the power of the Corps to assert jurisdiction over artificially created waters: [W]e generally do not consider the following waters to be “waters of the United States.” However, the Corps reserves the right on a case-by-case basis to determine that a particular waterbody within these categories of waters is a water of the United States. •f: >ji j(S jfc sfc (c) Artificial lakes or ponds created by excavating and/or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing. * 8k >}C (e) Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definitions of waters of the United States (see 33 C.F.R. 328.3(a)). 51 Fed.Reg. 41206, 41217 (1986) (emphasis added). These comments show that the Corps intends to exempt from its jurisdiction only those artificially created waters which are currently being used for commercial purposes, and that even those waters are subject to such jurisdiction on a “case-by-case” basis of review. The crys-tallizers and calcium chloride pits have not been used for commercial purposes for decades and so are not subject to even this limited exemption. Finally, courts have uniformly included artificially created waters in the Corps’ jurisdiction under the Clean Water Act and the Rivers and Harbors Act. See, e.g., Tull, 769 F.2d 182 (mosquito-control ditch); Stoeco Dev. Ltd. v. Dept. of the Army Corps of Eng’rs, 701 F.Supp. 1075, 1078 (D.N.J.1988) (artificially created wetland), appeal dismissed, 879 F.2d 860 (3rd Cir.1989); United States v. Akers, 651 F.Supp. 320 (E.D.Cal.1987) (same); Track 12, 618 F.Supp. 448 (same); United States v. Ciampitti, 583 F.Supp. 483 (D.N.J.1984) (same), affirmed, 772 F.2d 893 (3rd Cir.1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1192, 89 L.Ed.2d 307 (1986). We reject the district court’s interpretation of the regulations as creating a distinction between artificial and natural waters. B. Temporary Water Formations The district court also held that the crystallizers and calcium chloride pits were not other waters because they “are in fact dry most of the year.” Due to the climate in the Bay Area, ponding only occurs during the winter rainy season. The seasonal nature of the ponding is no obstacle to Corps jurisdiction however, because the regulations specifically enumerate two seasonal water features as other waters: intermittent streams and playa lakes. See Quivira Mining Co. v. EPA, 765 F.2d 126, 130 (10th Cir.1985), cert. denied, 474 U.S. 1055, 106 S.Ct. 791, 88 L.Ed.2d 769 (1986); United States v. Phelps Dodge Corp., 391 F.Supp. 1181, 1187 (D.Ariz.1975). The Corps’ determination that the crys-tallizers and calcium chloride pits are similarly seasonal bodies of water within the meaning of the regulations is proper. We reverse the district court’s contrary conclusion. C. Interstate Commerce The crystallizers and pits must still have sufficient connections to interstate commerce to come under the Corps’ jurisdiction as “other waters.” 33 C.F.R. § 328.3(a)(3). The Corps has adopted the following EPA criteria to determine when waters have sufficient ties to interstate commerce: [Waters] a. Which are or would be used as habitat by birds protected by Migratory Bird Treaties; or b. Which are or would be used as habitat by other migratory birds which cross state lines; or c. Which are or would be used as habitat for endangered species.... 51 Fed.Reg. 41206, 41217. The district court failed to determine whether the crys-tallizers and pits meet these standards. The record showed however, that migratory birds (including many protected by Migratory Bird Treaties) and one endangered species may have used the property as habitat. The commerce clause power, and thus the Clean Water Act, is broad enough to extend the Corps’ jurisdiction to local waters which may provide habitat to migratory birds and endangered species. See Utah v. Marsh, 740 F.2d 799, 804 (10th Cir.1984); Palila v. Hawaii Dep’t of Land and Natural Resources, 471 F.Supp. 985, 991-95 (D.Haw.1979), aff'd, 639 F.2d 495 (9th Cir.1981). See generally Hughes v. Oklahoma, 441 U.S. 322, 329-36, 99 S.Ct. 1727, 1732-36, 60 L.Ed.2d 250 (1979). We remand this issue to the district court to determine if the property has the requisite connections to interstate commerce. CONCLUSION The southern portions of Leslie’s property meet both the statutory and regulatory requirements for the Corps to exert Clean Water Act jurisdiction over them. The fact that the government in part caused the inundation of the property is not of consequence. Similarly, the government’s actions do not affect the normalcy or adjacency requirements of the regulations. As to the crystallizers and calcium chloride pits, their artificiality and temporary wetness pose no obstacle to Corps jurisdiction. We remand to the district court for a factual determination of the sufficiency of the property’s connections to interstate commerce. Because the record reflects that the Corps’ jurisdiction does not extend to the total property, we also remand to determine over which portion of the property the Corps has valid jurisdiction in light of this opinion’s legal conclusions. Costs will abide the final determination. REVERSED and REMANDED. . The San Francisco Bay area has a Mediterranean climate, in which rain falls primarily in the winter and spring, followed by a long dry season. . Section 404(a) of the Clean Water Act, 33 U.S.C. § 1344(a) (1982), provides in pertinent part: The Secretary [of the Army] may issue permits ... for the discharge of dredged or fill material into the navigable waters at specified disposal sites. . Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a) (1982), provides in pertinent part: Except as in compliance with this section and section[ 1 • • • 1344 of this title, the discharge of any pollutant by any person shall be unlawful. The Act defines fill as a pollutant at 33 U.S.C. § 1362(6). . Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 (1982), provides in pertinent part: The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; ... and it shall not be lawful to excavate or fill ... any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. . The Corps also claims that the southern portions of the property are affected by the ebb and flow of the tide, and thus are subject to the Corps’ jurisdiction under the Clean Water Act and the Rivers and Harbors Act. See 33 C.F.R. §§ 328.3(a)(1), 328.4(b)(1) and 329.12(a)(2). See also United States v. DeFelice, 641 F.2d 1169, 1175 n. 15 (5th Cir. Unit A April 1981) (citing cases). Because we find in favor of the Corps on its wetlands claim, we do not reach this alternate argument. . The Corps initially claimed that almost all of the property qualified as a wetland. The United States only appeals the district court's determination as to the southern portions of the property, which the district court found had the physical characteristics of wetlands. . All parties agree that the district court’s statement that "the Corps flooded the wildlife refuge and thereby brought tidewater further inland,” directly contradicts the record and its own statement of facts. . The "ejusdem generis rule" is, that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned_ [The rule does not] apply when the context manifests a contrary intention. Black’s Law Dictionary, 464 (5th ed. 1979). See abo 2A Sutherland Statutory Construction § 47.17 at 103 (4th ed. 1973).

Leslie Salt Co. v. United States

RYMER, Circuit Judge, concurring in part, dissenting in part: I join in the majority's holding that the southern portions of Leslie’s property meet the Clean Water Act requirements for Corps’ jurisdiction. I disagree, however, with the majority’s conclusion that the district court erred in its treatment of the crystallizers and calcium chloride pits. The crystallizers and pits are seasonal bodies of water that derive their major source of water from rain. There is standing water in the crystallizers and pits during the winter rainy season, when the rain collects, until early to mid-spring, when all the water has evaporated. The rest of the year the crystallizers and pits are dry. Although the majority is correct that seasonal nature of the ponding is no obstacle to Corps’ jurisdiction,” the cycle of ponding in the crystallizers and pits creates no hydrological connection with any other body of water. This fact distinguishes Quivira Mining Co. v. EPA, 765 F.2d 126 (10th Cir.1985) and United States v. Phelps Dodge, 391 F.Supp. 1181 (D.Ariz.1975). Even though three fish may have found their way into one of the ponds, there is nothing in the record to show that water flows directly or indirectly from the crys-tallizers or pits into another body of water. That being the case, the district court correctly determined that the crystallizers and pits are not “other waters” within the meaning of section 328.3(a)(3). It is therefore unnecessary to reach the issue on which the Supreme Court has declined to rule, see United States v. Riverside Bayview Homes, 474 U.S. 121, 131 n. 8, 106 S.Ct. 455, 461 n. 8, 88 L.Ed.2d 419 (1985): whether the Clean Water Act extends Corps’ jurisdiction to waters that are not “adjacent to bodies of open water." . The majority holds that "the commerce clause power, and thus the Clean Water Act, is broad enough to extend the Corps’ jurisdiction to local waters which may provide habitat to migratory birds and endangered species." Congress does have power under the Commerce Clause to regulate wildlife and endangered species. Palila v. Hawaii Dep't of Land and Natural Resources, 471 F.Supp. 985 (D.Haw.1979), aff’d 639 F.2d 495 (9th Cir.1981) and Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1976) stand for that proposition. However the issue in this case is not whether Congress has the power under the Commerce Clause to regulate wildlife and endangered species, but whether Congress meant to extend Corps’ jurisdiction under the Clean Water Act to the full extent of its commerce clause power. Specifically, it is: is it reasonable for Corps’ jurisdiction to rest on the fact that migratory birds and endangered species may use the waters as a habitat? In Utah v. Marsh, 740 F.2d 799 (10th Cir.1984), the other opinion on which the majority relies, the lake was used for several purposes that established a connection to interstate commerce. It is unclear whether the Marsh court would have found a substantial enough effect on interstate commerce, and thus Corps’ jurisdiction under the Clean Water Act, had the only connection to interstate commerce been that "the lake was on flyway of several species of migratory waterfowl....” Id. at 803. In addition, in Riverside Bayview Homes the Supreme Court held that since the Corps’ asserted jurisdiction over adjacent wetlands was brought to the attention of Congress "through legislation specifically designed to supplant it” (Congress' consideration of the Clean Water Act of 1977, a major piece of legislation aimed at achieving “interim improvements within the existing framework” of the Clean Water Act, H.R. Rep. No. 95-139 pp. 1-2 (1977)), and Congress rejected efforts designed to curb that jurisdiction, that was "at least some evidence of the reasonableness of the [Corps’] construction.” 474 U.S. at 137, 106 S.Ct. at 464. Such evidence of reasonableness does not exist in this case. The Corps issued new regulations governing its regulatory programs on November 13, 1986 in order to clarify the scope of the Section 404 permit program. The new regulations placed the definition of "waters of the United States” into a new Part 328 of Title 33 of the Code of Federal Regulations. As a further clarification, and as an addition to the old regulations, the new regulations stated that "waters of the United States” also include the following: areas which are "or would be” used as a habitat for migratory birds or endangered species. 33 C.F.R. § 328.3(a)(3). This 1986 addition to, or clarification of, the Corps’ regulations was not considered during congressional debates on the Clean Water Act of 1977. Therefore, the evidence of reasonableness that the Supreme Court found regarding the Corps’ regulations in Riverside Bayview Homes does not apply to the 1986 clarification of those regulations, in particular, the list that includes migratory and endangered species habitats.

Century Exploration New Orleans, LLC v. United States

DYK, Circuit Judge. Appellants Century Exploration New Orleans, LLC (Century) and Champion Exploration, LLC (Champion) appeal from a judgment of the Court of Federal Claims (Claims Court) granting summary judgment to the government on the issue of breach of contract. Century and Champion are in the business of oil and gas exploration, development, and production. They jointly leased the mineral rights to land on the Outer Continental Shelf from the government. The terms of their lease allowed the government to change existing regulatory requirements under the Outer Continental Shelf Lands Act of 1953 (OCSLA), 43 U.S.C. § 1331 et seq. The appellants argue the government breached their lease because it imposed additional regulatory requirements pursuant to the Oil Pollution Act (OPA), 33 U.S.C. § 2701 et seq. We agree with the Claims Court that the government made these changes pursuant to OCSLA, not OPA, and we affirm. BaCkground Appellants Century and Champion obtained an oil and gas lease from the government for a 5760-acre tract called Block 920, Ewing Bank (EW920) located on the Outer Continental Shelf. They made an initial bonus payment of $23,236,314 to acquire the lease and have paid the government additional rental payments of $9.50 per acre, per lease year — $54,720 per year — since that initial payment. The lease (Lease No. OCS-G 32293) became effective on August 1, 2008, and had an initial term running through July 31, 2016. Section 1 of the lease provided: This lease is issued pursuant to the Outer Continental Shelf Lands Act of August 7, 1953, 67 Stat. 462[,] 43 U.S.C. § 1331 et seq., as amended (92 Stat. 629), (hereinafter called the “Act”). The lease is issued subject to the Act; all regulations issued pursuant to the Act and in existence upon the Effective Date of this lease; all regulations issued pursuant to the statute in the future which provide for the prevention of waste and conservation of the natural resources of the Outer Continental Shelf and the protection of correlative rights therein; and all other applicable statutes and regulations. J.A. 88. In Mobil Oil Exploration & Producing Southeast, Inc. v. United States, the Supreme Court interpreted a lease provision that was nearly identical to the one at issue here. 530 U.S. 604, 120 S.Ct. 2423, 147 L.Edüd 528 (2000). In Mobil Oil, the question was whether certain oil company leases were subject to a new statute, the Outer Banks Protection Act, 33 U.S.C. 2753 (1990), 104 Stat. 555 (repealed 1996), which was enacted after the leases were signed and changed the requirements applicable to the lessees. Mobil Oil, 530 U.S. at 611-13, 120 S.Ct. 2423. The Court held that the leases were subject to all statutes and regulations in existence as of their effective date, but, as to future regulations, were subject only to OCSLA regulations issued after the effective date of the leases. Id. at 615, 120 S.Ct. 2423. Thus, the Court concluded that the government’s imposition of new regulatory requirements pursuant to the Outer Banks Protection Act breached the leases. Id. at 620, 120 S.Ct. 2423. Here, appellants similarly claim that the government changed regulatory requirements after the effective date of their lease pursuant to OPA, not OCSLA. On April 20, 2010, an explosion and fire on the Deepwater Horizon oil rig — a semi-submersible drilling rig located in the Gulf of Mexico — killed eleven workers and resulted in an oil spill that lasted several months. Although the rig was equipped with a blowout preventer — a mechanism designed to stop the flow of oil in the event of a blowout — this device failed to function after the accident. By the time the drill operator finally managed to cap the oil well on July 15, 2010, 87 days after the initial blowout, 4.9 billion barrels of crude oil had been released into the gulf. As a result of the spill, the government imposed new regulatory requirements, which the appellants urge increase the cost of their required bond. The question is whether these requirements were imposed under OCSLA or OPA. On January 25, 2011, Century filed a three-count complaint in the Claims Court. In its complaint, Century asserted that, as a result of these new regulations, “the government breached its lease agreement with plaintiffs (Count I); that it effected an uncompensated taking of its private property in violation of the Fifth Amendment (Count II); and that the government’s activities may have given rise to other, unspecified causes of action (Count III).” J.A. 23. In support of its breach claim, Century alleged that the government’s changes to the applicable regulations violated various sections of the Administrative Procedure Act (APA), 5 U.S.C. §§ 553, 706, were therefore unauthorized, and breached the lease. On September 12, 2011, Champion filed a complaint against the government, adopting the allegations Century set forth in its complaint. Since this appeal is exclusively concerned with the appellants’ breach claims, we confine our discussion to that issue. On July 13, 2012, the government filed a motion for summary judgment on the appellants’ breach of contract claims. The government argued that it had not breached the appellants’ lease. In the alternative, the government argued that even if it had breached the contract, the sovereign acts doctrine shielded it from liability. The appellants filed a cross-motion for partial summary judgment, seeking a determination that the government was liable for breach of contract. In response to these motions, the Claims Court granted summary judgment to the government, holding that it did not breach any express term of the lease. The Claims Court also found that the government did not breach its implied duty of good faith and fair dealing. With respect to the appellants’ APA challenges, the court held that it did not possess subject matter jurisdiction to hear such claims. In the alternative, the Claims Court held that the government was not liable under the sovereign acts doctrine. The Claims Court entered a final judgment under Federal Rule of Civil Procedure 54(b) in favor of the government, dismissing the appellants’ breach of contract claims with prejudice. Century and Champion timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). We review the grant of summary judgment de novo. United States v. Great Am. Ins. Co. of N.Y., 738 F.3d 1320, 1329 (Fed.Cir.2013). The interpretation of the lease is also an issue of law that we review de novo. C. Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1544 (Fed.Cir.1993). DiscussioN I. Express Breach The principal issue presented in this appeal is whether the government breached any express term of Century and Champion’s lease. As discussed above, the Supreme Court considered a nearly identical oil lease provision in Mobil Oil. The Court held that the lease should be interpreted to protect the lessees from new statutes, new non-OCSLA regulations, and changes to the text of OCSLA itself. Mobil Oil, 530 U.S. at 616, 120 S.Ct. 2423. But the lessees were required to comply with changes in OCSLA regulations. As the Court explained: [t]he lease contracts say that they are subject to then-existing regulations and to certain future regulations, those issued pursuant to OCSLA [and certain other statutes]- This explicit refer- ence to future regulations makes it clear that the catchall provision that references “all other applicable ... regulations,” must include only statutes and regulations already existing at the time of the contract, a conclusion not questioned here by the Government. Id. at 616, 120 S.Ct. 2423 (second omission in original) (internal citation omitted). This court followed the Supreme Court’s interpretation of the lease language in Amber Resources Co. v. United States, 538 F.3d 1358, 1368 (Fed.Cir.2008), and held that similar lease language only obligated compliance with future changes to OCSLA regulations. Id. at 1362-63,1368. A Initially, some description of OCSLA and OPA is useful. OCSLA provides that the United States, and not the individual states, shall have jurisdiction and control over the submerged lands of the Outer Continental Shelf. 43 U.S.C. § 1332(1); see Barker v. Hercules Offshore, Inc., 713 F.3d 208, 213 (5th Cir.2013) (“OCSLA asserts exclusive federal question jurisdiction over the OCS.”)- Congress enacted OCS-LA to ensure that a “vital national resource reserve held by the Federal Government for the public” would be “made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs.” 43 U.S.C. § 1332(3). In furtherance of this objective, the Department of Interior (Interior Department) enters into mineral leases with private parties. These mineral leases authorize private parties, such as oil companies, to explore the Outer Continental Shelf for oil and natural gas and extract any reserves that are discovered. Thus, the only entities entitled to conduct oil and gas exploration, development, and production on the Outer Continental Shelf are lessees of the federal government. See id. §§ 1333(1), 1334. In enacting OCSLA, Congress was careful to stipulate that operations in the outer Continental Shelf should be conducted in a safe manner by well-trained personnel using technology, precautions, and techniques sufficient to prevent or minimize the likelihood of blowouts, loss of well control, fires, spillages, physical obstruction to other users of the waters or subsoil and seabed, or other occurrences which may cause damage to the environment or to property, or endanger life or health. Id. § 1332(6) (emphasis added). OCSLA vests the Secretary of the Interior (Interior Secretary) with the authority to regulate exploration under the oil and gas leases, as well as the resulting development and production activities. Id. § 1334. Specifically, OCSLA provides that the Secretary shall prescribe such rules and regulations as may be necessary to carry out [the provisions of OCSLA]. The Secretary may at any time prescribe and amend such rules and regulations as he determines to be necessary and proper in order to provide for the prevention of waste and conservation of the natural resources of the outer Continental Shelf, and the protection of correlative rights therein, and, notwithstanding any other provisions herein, such rules and regulations shall, as of their effective date, apply to all operations conducted under a lease issued or maintained under the provisions of this subchapter. Id. § 1334(a) (emphasis added). Thus, OCSLA “authorized the [Interior Department], by valid regulations, to impose anywhere in the OCS all reasonable development and production conditions it deems necessary to its stewardship of the OCS and administration of OCSLA.” Gulf Restoration Network v. Salazar, 683 F.3d 158, 169-70 (5th Cir.2012) (citing 43 U.S.C. §§ 1334, 1351; H.R. Rep. 95-1474, at 115 (1978) (Conf. Rep.), reprinted in 1978 U.S.C.C.A.N. 1674). Pursuant to this authority, the Interior Secretary has promulgated regulations and orders that govern a lessee’s oil exploration, development, and production activities on the Outer Continental Shelf. See 30 C.F.R. pt. 250 (2010). The Oil Pollution Act, 33 U.S.C. § 2701 et seq., is simultaneously narrower and broader in scope than OCSLA. In 1990, Congress enacted OPA in response to “rising public concern following the Exxon Valdez oil spill.” The Oil Pollution Act Overview, United States Environmental Protection Agency, http://www.epa.gov/ oem/contenVlawsregs/opaover.htm (last visited Feb. 10, 2014). This law expanded the federal government’s ability to respond to oil spills by imposing strict liability on parties responsible for releasing oil into navigable waters. See 33 U.S.C. §§ 2701-2713; Thomas J. Wagner, The Oil Pollution Act of 1990: An Analysis, 21 J. Mar. L. & Com. 569, 574-76 (1990). OPA also created the national Oil Spill Liability Trust Fund, which can be used to clean up oil spills when the party responsible is unknown or refuses to pay. See 33 U.S.C. § 2712; Oil Spill Liability Trust Fund, United States Environmental Protection Agency, http://www.epa.gov/osweroel/ content/learning/oilfund.htm (last visited Feb. 10, 2014). Thus, unlike OCSLA, which covers all mineral activity on the Outer Continental Shelf pursuant to leases from the United States, 43 U.S.C. §§ 1331-1356, OPA is specifically designed to govern oil spill prevention, clean up, and compensation in all United States navigable waters whatever the source of the exploration, development, and production rights. Inho Kim, Ten Years After the Enactment of the Oil Pollution Act of 1990: a Success of a Failure, 26 Marine Pol’y 197, 197 (2002); Wagner, supra, at 569; Oil Pollution Act of1990(OPA), United States Coast Guard, http://www.uscg. mil/npfc/AbouUNPFC/opa.asp (last visited Feb. 11, 2014). However, the OPA regulations involved here only apply to activities on the Outer Continental Shelf. See 30 C.F.R. ch. II, pt. 254, subpt. B. Oil and gas companies leasing land on the Outer Continental Shelf must comply with both OCSLA and OPA. These statutes contain some overlapping provisions, in particular those relating to the remediation of oils spills. For example, during the relevant period, both OCSLA and OPA regulations required oil companies to submit Oil Spill Response Plans. OCSLA regulation 30 C.F.R. § 250.219 required all Outer Continental Shelf lessees to provide such a plan. See also Oil and Gas and Sulphur Operations in the Outer Continental Shelf — Plans and Information, 70 Fed. Reg. 51,478-01 (Aug. 30, 2005). OPA regulation 30 C.F.R. § 254.1 required all owners or operators of oil handling, storage, or transportation facilities “located seaward of the coast line” (that is, on the Outer Continental Shelf) to submit a plan. 30 C.F.R. § 254.1. OCSLA and OPA regulations required these plans to ensure that oil and gas companies were prepared to respond to any oil spills that might result from their activities off the United States coastline. Even prior to the execution of the appellants’ lease, OCSLA and its implementing regulations required lessees to submit an exploration plan to the government before commencing any drilling activities. See 43 U.S.C. § 1340(c)(1), (e)(2); 30 C.F.R. § 250.201 (2010). Such an exploration plan detailed the lessee’s proposed exploration activities on the Outer Continental Shelf and required government approval before the lessee commenced any exploration activity. 30 C.F.R. § 250.201 (2010). Importantly, the regulations required that such an exploration plan include an Oil Spill Response Plan that contained a calculation of the volume of oil that would result from a worst case discharge scenario. Id. § 250.219(a)(2)(iv) (2010). A worst case discharge scenario was defined as “the daily rate of an uncontrolled flow of natural gas and oil from all producible reservoirs into the open wellbore” that would result from a blowout, such as the one that triggered the Deepwater Horizon disaster. Worst Case Discharge Determination, Bureau of Ocean Energy Management, http:// www.boem.gov/Oil-and-GasEnergy-Program/Resource-Evaluation/Worst-Case-Diseharge/Index.aspx (last visited Feb. 11, 2014). Lessees were also required to “demonstrate oil spill financial responsibility for facilities proposed in [their exploration plan],” 30 C.F.R. § 250.218(e)(2) (2010), and the appellants elected to comply by posting a bond. See 80 C.F.R. § 253.20 (2010) (describing the different methods of demonstrating oil spill financial responsibility). The appellants’ bond requirements depended on their worst case discharge volume: the greater the worst case discharge volume, the larger the bond required to cover their potential liability. See id. § 253.13 (2010) (setting out the correspondence between worst case discharge volume and bond requirement). OPA did not require oil companies to submit an exploration plan; rather, each company was required to submit an Oil Spill Response Plan, which included a worst case discharge scenario. As with the OCSLA requirements, this only applied to Outer Continental Shelf lessees. The OCSLA regulations borrowed and incorporated the OPA regulation’s method of calculating worst case discharge volume and the assumptions for that calculation. Thus, Outer Continental Shelf lessees were required to follow § 254.27’s methodology when calculating worst case discharge volume for OCSLA purposes, and all oil and gas operators were required to follow § 254.27’s methodology when calculating worst case discharge volume for OPA purposes. Finally, § 250.103, an OCSLA regulation, enabled the government to issue Notices to Lessees and Operators (NTLs) that “clarify, supplement, or provide more detail about certain requirements,” id., of the OCSLA statute and regulations. As the Interior Department has explained, it “issues NTLs to explain and clarify its regulations.” Oil and Gas and Sulphur Operations in the Outer Continental Shelf — Plans and Information, 70 Fed.Reg. 51,478-01, 51,478 (Aug. 30, 2005). The OPA statute and the OPA regulations thereunder made no provision for the issuance of NTLs. The appellants contend that the NTLs in this case are equivalent to new regulations within the meaning of the lease provisions. Even assuming the NTLs are new regulations, however, they were issued pursuant to OCSLA, and thus do not breach the lease. B The change at issue here concerns the worst case discharge calculation and the bond requirement that corresponds to that calculation. The government issued Notice to Lessees No. 2010-N06 (NTL-06) and related documents on June 18, 2010, after the effective date of the lease. This order and the various documents explaining it required lessees to make changes to the way they calculated worst case discharge volume. See infra Slip. Op. at 1175-76. The only identified consequence of this alteration was to alter the lessees’ bond requirement. The appellants argue that the government’s issuance of NTL-06 breached their lease because: (1) it changed the worst case discharge scenario, thereby imposing additional bonding costs, and (2) the change was made pursuant to OPA, not OCSLA. There appears to be no dispute as to the first question. At oral argument, the appellants clarified that, in their view, NTL-06 resulted in four principal changes to the worst case discharge calculation, which increased their corresponding bond requirement. First, and most importantly, after the effective date of the lease, the government sent an email to Century stating that under NTL-06, the appellants must “[ijncrease the length of time [of] the uncontrolled blowout response from 30 to 120 days.” J.A. 1432. Prior to NTL-06, the OCSLA regulations, by reference to OPA regulation 30 C.F.R. § 254.47(a)(3), only required oil company lessees to assume that oil would flow from their wells for 30 days during a blowout when calculating their worst case discharge volumes. The government email to Century explained that the appellants should revise their OCSLA-mandated exploration plan in light of NTL-06 and now assume that oil would flow from their well for 120 days when calculating the worst case discharge volume. Second, prior to the issuance of NTL-06, lessees did not have to include all reservoirs that a drilling operator might pass through to reach its intended drilling location in the calculation of the uncontrolled flow that could result from a blowout. The parties do not specify the source of this obligation. However, the frequently asked questions document (FAQ document) accompanying NTL06 apparently modified this requirement. Under NTL-06, lessees must “consider all reservoirs, not just where you’re drilling to, but anything you might pass through” when calculating worst case discharge volume. Oral Argument 5:57-6:02, available at http:// www.cafc.uscourts.gov/Oral-argument-recordings/all/century-exploration.html. More specifically, lessees must now “determine the daily rate of an uncontrolled flow from all producible reservoirs into the open wellbore.” J.A. 663 (emphasis added). Third, NTL-06 changed assumptions regarding what could be treated as being in the wellbore when calculating worst case discharge volume. Previously, lessees counted the fact that certain equipment, such as drillpipe, logging tools, and drill bits were in the wellbore, thereby reducing total discharge volume, when they calculated worst case discharge volume. Again, the source of this requirement is unclear. However, the FAQ document explained that lessees “should [now] assume that the wellbore is free of drillpipe, logging tools, or other similar equipment.” J.A. 665 (emphasis added). Thus, under NTL-06, lessees “no longer consider anything being in the wellbore.” Oral Argument 5:47-5:51, available at http://www.eafc.uscourts. gov/oral-argument-recordings/all/century-exploration.html. Fourth, NTL-06 prohibits lessees from including the presence of a blowout pre-venter (the mechanism that failed to contain the Deepwater Horizon blowout) in their worst case discharge calculation. As the appellants explained at oral argument, “for years beforehand you counted the fact that you had a blowout preventer on the well when you determined worst case discharge.” Id. at 17:52-18:02. Once again, the source of this requirement is not specified. However, the FAQ document stated that lessees should now assume that a blowout preventer is not connected to the wellhead. Prior to the issuance of NTL-06, the appellants’ worst case discharge volume was 1,500 barrels and their corresponding bond requirement amounted to $85 million. The appellants contend, and the government does not contest, that NTL-06 and the various documents explaining that order increased their worst case discharge volume to 142,977 barrels per day .and their corresponding bond requirement to $150 million. C While not disputing the existence of the changes or their impact, the government urges that the changes were made pursuant to OCSLA, not OPA. The appellants argue that they were made pursuant to OPA. More precisely, appellants argue that because NTL-06 and related documents changed the assumptions lessees must follow when calculating their worst case discharge volume, and the regulation governing the worst case scenario calculation is an OPA regulation, NTL-06 effectively changed an OPA regulation. In response, the government explains that the OCSLA regulation outlining what oil spill information lessees must include in their exploration plans, § 250.219(a)(2)(iv), simply incorporates the OPA methodology for calculating worst case discharge volume through reference. The government points out that NTL-06 did not change the text of the OPA regulation itself. Rather, in the government’s view, it altered only OCSLA regulatory requirements. We agree with the government. Initially, it is important that OCSLA authorized the government to adopt regulations concerning blowout protection and worst case discharge scenarios; the government did not need to act under the authority granted by OPA. Pursuant to Section 1 of the lease, the government could issue new OCSLA regulations which provide for the “prevention of waste and conservation of the natural resources of the Outer Continental Shelf’ by the lessees. J.A. 88. This lease provision can be traced directly to § 1334 of OCSLA: “The Secretary may at any time prescribe and amend such rules and regulations as he determines to be necessary and proper in order to provide for the prevention of waste and conservation of the natural resources of the outer Continental Shelf, and the protection of correlative rights therein.... ” 43 U.S.C. § 1334 (emphasis added). The case law interpreting § 1334 gives a broad scope to the phrase “prevention of waste and conservation of the natural resources,” making clear that it extends to environmental protection. See, e.g., Pauley Petroleum Inc. v. United States, 219 Ct.Cl. 24, 591 F.2d 1308, 1325 (1979) (explaining that a new regulation imposing absolute liability on lessees for any pollution resulting from their activities would be “lawful and reasonable” because OCSLA provides “ ‘[t]he Secretary may at any time prescribe and amend such rules and regulations [ ] in order to provide for the prevention of waste and conservation of the natural resources of the outer Continental Shelf ” (quoting 43 U.S.C. § 1334(a)(1) (1970))); Get Oil Out! Inc. v. Exxon Corp., 586 F.2d 726, 729 (9th Cir.1978); Union Oil Co. of Cal. v. Morton, 512 F.2d 743, 749-50 (9th Cir.1975) (stating that the phrase “conservation of the natural resources of the outer Continental Shelf’ “encompasses all the natural resources of the shelf, not merely the mineral resources” (citations omitted)); Gulf Oil Corp. v. Morton, 493 F.2d 141, 145 (9th Cir.1973) (“[I]n authorizing the Secretary to issue regulations, [OCSLA] speaks of ‘conservation of the natural resources of the outer Continental Shelf,’ not just of conservation of oil, gas, sulphur and other mineral resources.... Its natural meaning would encompass all such resources, not just oil and gas, sulphur and other minerals.” (quoting 43 U.S.C. § 1334(a))). Thus, the case law supports a finding that OCS-LA endows the government with the authority necessary to regulate worst case discharge scenarios and to require adequate bonding. See also 43 U.S.C. § 1337(a)(7)(A) (authorizing the Interior Secretary to require lessees to post a bond in accordance with the applicable regulations). Nevertheless, the appellants point out that the mere existence of government authority to act under OCSLA does not immunize the government from liability for regulatory changes. To avoid liability for changes, the government must also have acted pursuant to OCSLA authority. In Mobil Oil, the government argued that, irrespective of the statutory change at issue in that case, the government could have undertaken the exact same action pursuant to OCSLA. 530 U.S. at 615-16, 120 S.Ct. 2423. The Supreme Court rejected this argument, recognizing that the new requirements were “created by [the Outer Banks Protection Act], a later enacted statute,” Mobil Oil, 530 U.S. at 616, 120 S.Ct. 2423, not an OCSLA regulation. The court explained that “[t]he fatal flaw in [the government’s] argument [ ] arises out of the Interior Department’s own statement — a statement made when citing the Outer Banks Protection Act to explain its approval delay.” Id. at 617-18, 120 S.Ct. 2423. Thus, even though OCSLA may have permitted the government to require the exact same actions the Outer Banks Protection Act required, because the government cited the Outer Banks Protection Act as the authority for carrying out these actions, the Court found that the government effectuated them pursuant to the Outer Banks Protection Act and was liable for breach. In reaching this conclusion, the Supreme Court emphasized the government’s chosen source of authority: the government cited the Outer Banks Protection Act, not OCSLA regulations. Id. We confirmed this approach in Amber. In Amber, Congress amended the Coastal Zone Management Act to impose new regulatory requirements. 538 F.3d at 1366. Thus, Amber turned on whether these new requirements breached the oil companies’ contracts. Id. Relying on Mobil Oil, we reasoned that “[bjecause the 1990 [Coastal Zone Management Act] amendments ... imposed significantly more burdensome requirements for granting lease suspensions, the new statute in this case breached the lease agreements in the same way as the new statute in Mobil Oil.” Id. at 1371. The government argued that it could have undertaken the exact same action pursuant to the OCSLA regulations in effect at that time. Id. at 1372. Nevertheless, because the government imposed new requirements based on the new statutory changes to the Coastal Zone Management Act, not existing OCSLA regulations, we held that these requirements breached the contract. Id. Here, we reach a different conclusion. Although, as discussed above, both the OCSLA and OPA worst case discharge scenario regulations are limited to OCS lessees, we conclude that the government changed the appellants’ worst case discharge calculation pursuant to OCSLA. First, NTL-06 itself identified OCSLA regulation § 250.103 as its source of authority. NTL-06 only referenced and discussed OCSLA regulations and requirements. As NTL-06 explains, OCSLA regulations § 250.219 and § 250.250 required “all [OCSLA exploration] plans” to be “accompanied by information regarding oil spills, including calculations of [the lessee’s] worst case discharge scenario.” J.A. 657. Although OCSLA regulation § 250.219(a)(2)(iv) instructed lessees to calculate their worst case discharge volume according to the OPA regulation methodology, NTL-06 never mentioned the OPA regulations. NTL-06 simply augmented the factors lessees must consider when calculating their worst case discharge scenario for OCSLA purposes. Second, there has been no showing or even suggestion that the NTL-06 changes applied outside the OCSLA context. Critically, NTL-06 states that it only changes a lessee’s worst case discharge scenario “required by [OCSLA regulation] 30 C.F.R. § 250.219(a)(2)(iv).” J.A. 658. NTL-06 did not change the text of the relevant OPA regulation, § 254.47, and nothing suggests that NTL-06 altered any part of the OPA regulation. Indeed, the appellants do not claim that NTL-06 changed the text of relevant OPA regulation. NTL-06 merely changed the way an OCS-LA regulation incorporates an OPA calculation. Moreover, for three out of the four alleged alterations to the worst case discharge calculation, it is not even clear that the original requirement was an OPA requirement. A change to an OCSLA regulation does not breach the express terms of the lease language as interpreted by the Supreme Court in Mobil Oil and this court in Amber. II. Implied Breach and Administrative Procedure Act Challenges We have considered the appellants’ other arguments and find them to be without merit. Appellants cannot rely on the implied covenant of good faith and fair dealing to change the text of their contractual obligations. As this court recently clarified in Metcalf Construction, Inc. v. United States, the ‘implied duty of good faith and fair dealing cannot expand a party’s contractual duties beyond those in the express contract or create duties inconsistent with the contract’s provisions.’ [O]ur formulation means simply that an act will not be found to violate the duty (which is implicit in the contract) if such a finding would be at odds with the terms of the original bargain, whether by altering the contract’s discernible allocation of risks and benefits or by conflicting with a contract provision. The implied duty of good faith and fair dealing is limited by the original bargain: it prevents a party’s acts or omissions that, though not proscribed by the contract expressly, are inconsistent with the contract’s purpose and deprive the other party of the contemplated value. 742 F.3d 984, 991 (Fed.Cir.2014) (quoting Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 831 (Fed.Cir.2010)); see also Precision Pine, 596 F.3d at 829-31 (Fed.Cir.2010) (“The government may be liable for damages when the subsequent government action is specifically designed to reappropriate the benefits the other party expected to obtain from the transaction, thereby abrogating the government’s obligations under the contract.”); 13 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 63:22 (4th ed. 2000) (“As a general principle, there can be no breach of the implied promise or covenant of good faith and fair dealing where the contract expressly permits the actions being challenged, and the defendant acts in accordance with the express terms of the contract.”). We hold that the government has not breached its implied duty of good faith and fair dealing because the lease expressly authorized the government action at issue here: changes to OCSLA regulatory requirements. We also affirm the Claims Court’s holding that it is without subject matter jurisdiction to decide the appellants’ APA challenges. See Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1370 n.11 (Fed.Cir.2005) (“Of course, no APA review is available in the Court of Federal Claims”)- Because we have found no breach in this case, we need not reach the government’s sovereign acts defense. AFFIRMED . For the lease language of Mobil Oil, see Conoco Inc. v. United States, 35 Fed.Cl. 309, 317 (1996), rev’d sub nom. Marathon Oil Co. v. United States, 158 F.3d 1253 (Fed.Cir.1998), opinion withdrawn and superseded on reh’g, 177 F.3d 1331 (Fed.Cir.1999), rev’d sub nom. Mobil Oil Exploration & Producing Se., Inc. v. United States, 530 U.S. 604, 120 S.Ct. 2423, 147 L.Ed.2d 528 (2000), aff'd sub nom. Marathon Oil Co. v. United States, 236 F.3d 1313 (Fed.Cir.2000). 43 U.S.C. § 1333(a)(1). OCSLA defines the Outer Continental Shelf as all submerged land that is beyond the outer limits of state jurisdiction (three nautical miles from shore) and within the limits of national jurisdiction (200 nautical miles from shore). See 43 U.S.C. §§ 1301(a), 1331(a); Amber, 538 F.3d at 1362. . OCSLA provides the United States with legal jurisdiction over: the subsoil and seabed of the Outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources, to the same extent as if the Outer Continental Shelf were an area of exclusive Federal jurisdiction within a State[.] . Unless otherwise indicated, this opinion references the version of the Code of Federal Regulations (C.F.R.) that was in effect when appellants acquired their lease. The provisions of the C.F.R. governing Outer Continental Shelf leasing, exploration, and development that are relevant to this opinion have been relocated from Part 250 of Title 30 to Part 550 of that title. . The wellbore is the hole the lessee or operator has drilled for the purpose of exploring or extracting natural gas or oil from the earth. In the oil production context, reservoirs are subsurface pools of hydrocarbons, such as crude oil or natural gas, contained in porous or fractured rock formations. . The appellants also argue that their increased bonding requirements breached Section 8 of the lease. Section 8 reads: "The Lessee shall maintain at all times the bond(s) required by regulation prior to the issuance of the lease and shall furnish such additional security as may be required by the Lessor if, after operations have begun, the Lessor deems such additional security to be necessary.” J.A. 89. Section 8 refers to 30 C.F.R. § 250.213(e)(l)’s "appropriate bond” requirement, also known as the performance bond requirement. As the Claims Court accurately explained, “[i]n order to demonstrate a breach of section 8 of the lease, plaintiffs must establish that they are now required to furnish a bond that exceeds the bond required under the regulations in effect when the lease was executed.” J.A. 40. Because the appellants’ performance bonding requirement has not changed, there has been no breach of Section 8 of the lease. . In addition to these four principal changes, NTL06 also rescinded an older order, NTL-08, which had waived certain regulatory requirements for particular lessees. As the appellants conceded at oral argument, the rescission of NTL-08 is not relied on in the complaint. Therefore, we do not discuss NTL-08 here. . The government sent this email to Century directly, instead of both Century and Champion, because Century was the designated lease operator. As the lease operator, Century was in charge of submitting the appellants’ exploration plan, meeting the bond requirements, and applying for permits to drill. See 30 C.F.R. § 250.105 (2013) ("Operator means the person the lessee(s) designates as having control or management of operations on the leased area or a portion thereof. An operator may be a lessee, the BSEE-approved or BOEM-approved designated agent of the lessee(s), or the holder of operating rights under a BOEM-approved operating rights assignment.”); J.A. 88. . At oral argument, the appellants also contended that the changes NTL-06 brought about were made pursuant to OPA because a later issued NTL, NTL No. 2012-N06, altered OPA regulation § 254.47(b). Issued on August 10, 2012, after the appellants filed their complaint and after the government moved for summary judgment, NTL No. 2012-N06 is irrelevant to this appeal, and we decline to discuss it. The same is true of NTL 2013-N02. . The appellants suggest that in adopting OCSLA regulation 30 C.F.R. § 250.219, the Interior Department recognized that the worst case discharge calculation was included in the OCSLA regulation merely as a ''streamlined” means to comply with OPA. Century’s Reply Br. 12 (quoting Oil and Gas and Sul-phur Operations in the Outer Continental Shelf — Plans and Information, 70 Fed.Reg. at 51,486). This is not correct. The OCSLA regulation in question states that lessees may provide, as an alternative to an individual Oil Spill Response Plan (OSRP), "Reference to [an] approved regional OSRP (see 30 C.F.R. 254.3) [that must] include: [1] The calculated volume of your worst case discharge scenario (see 30 C.F.R. 254.26(a)), and [2] a comparison of the appropriate worst case discharge scenario in your approved regional OSRP with the worst case discharge scenario that could result from your proposed exploration activities.” 30 C.F.R. § 250.219(a)(2)(iv) (2010). The comment in the Federal Register on which the appellants rely was directed to the second aspect of the regulation. The Interior Department’s summary of the comment reads: "With respect to paragraph (a)(2)(iv), [the Offshore Operators Committee] inquires regarding the purpose of providing a comparison between the site specific worst case discharge and that in the regional OSRP.” The Interior Department's response to the comment was similarly limited: "No change MMS uses the information required under paragraph (a)(2)(iv) as a streamlined means to ensure compliance with requirements of the Oil Pollution Act of 1990.” Oil and Gas and Sulphur Operations in the Outer Continental Shelf — Plans and Information, 70 Fed.Reg. 51,478-01, 51,486 (Aug. 30, 2005) (codified at 250.219(a)(1)(iv) (2010)). Neither the comment nor the response concerned the requirement to provide a worst case discharge scenario. See Summary of the Offshore Operators Committee’s Comments on Subpart B Proposed Regulation at 35-40, Bureau of Safety and Environmental Enforcement (on file with Bureau of Safety and Environmental Enforcement). . The appellants also argue that the term "other applicable statutes” in Section 1 of the lease should be interpreted to incorporate the APA. Appellant Century’s Br. 8, 28. However, as the Claims Court correctly concluded, the APA is not an applicable statute in the sense of the lease language. . In arguing that the government breached its implied duty of good faith and fair dealing, the appellants mention other post-Deepwater Horizon changes to the regulatory requirements such as two separate government-issued moratoria on drilling, a new Drilling Safety Rule, and another NTL (NTL-10). We do not discuss these changes because the appellants have not articulated a theory under which they form a basis for breach liability.

Secretary of the Interior v. California

Justice O’Connor delivered the opinion of the Court. These cases arise out of the Department of the Interior’s sale of oil and gas leases on the Outer Continental Shelf (OCS) off the coast of California. We must determine whether the sale is an activity “directly affecting” the coastal zone under § 307(c)(1) of the Coastal Zone Management Act (CZMA). That section provides in its entirety; “Each Federal agency conducting or supporting activities directly affecting the coastal zone shall conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs.” 86 Stat. 1285, 16 U. S. C. § 1456(c)(1) (1982 ed.). We conclude that the Secretary of the Interior’s sale of Outer Continental Shelf oil and gas leases is not an activity “directly affecting” the coastal zone within the meaning of the statute. H CZMA defines the coastal zone” to include state but not federal land near the shorelines of the several coastal States, as well as coastal waters extending “seaward to the outer limit of the United States territorial sea.” 16 U. S. C. § 1453(1) (1982 ed.). The territorial sea for States bordering on the Pacific Ocean or Atlantic Ocean extends three geographical miles seaward from the coastline. See 43 U. S. C. §1301; United States v. California, 381 U. S. 139 (1965). Submerged lands subject to the jurisdiction of the United States that lie beyond the territorial sea constitute the “outer Continental Shelf.” See 43 U. S. C. § 1331(a). By virtue of the Submerged Lands Act, passed in 1953, the coastal zone belongs to the States, while the OCS belongs to the Federal Government. 43 U. S. C. §§ 1302, 1311. CZMA was enacted in 1972 to encourage the prudent management and conservation of natural resources in the coastal zone. Congress found that the “increasing and competing demands upon the lands and waters of our coastal zone” had “resulted in the loss of living marine resources, wildlife, nutrient-rich areas, permanent and adverse changes to ecological systems, decreasing open space for public use, and shoreline erosion.” 16 U. S. C. § 1451(c) (1982 ed.). Accordingly, Congress declared a national policy to protect the coastal zone, to encourage the States to develop coastal zone management programs, to promote cooperation between federal and state agencies engaged in programs affecting the coastal zone, and to encourage broad participation in the development of coastal zone management programs. 16 U. S. C. §1452 (1982 ed.). Through a system of grants and other incentives, CZMA encourages each coastal State to develop a coastal management plan. Further grants and other benefits are made available to a coastal State after its management plan receives federal approval from the Secretary of Commerce. To obtain such approval a state plan must adequately consider the “national interest” and “the views of Federal agencies principally affected by such program.” 16 U. S. C. §§ 1455(c)(8), 1456(b) (1982 ed.). Once a state plan has been approved, CZMA § 307(c)(1) requires federal agencies “conducting or supporting activities directly affecting the coastal zone” to do so “consistent” with the state plan “to the maximum extent practicable.” 16 U. S. C. § 1456(c)(1) (1982 ed.). The Commerce Department has promulgated regulations implementing that provision. Those regulations require federal agencies to prepare a “consistency determination” document in support of any activity that will “directly affect” the coastal zone of a State with an approved management plan. The document must identify the “direct effects” of the activity and inform state agencies how the activity has been tailored to achieve consistency with the state program. 15 CFR §§930.34, 930.39 (1983). I 1 — 1 OCS lease sales are conducted by the Department of the Interior (Interior). Oil and gas companies submit bids, and the high bidders receive priority in the eventual exploration for and development of oil and gas resources situated in the submerged lands on the OCS. A lessee does not, however, acquire an immediate or absolute right to explore for, develop, or produce oil or gas on the OCS; those activities require separate, subsequent federal authorization. In 1977, the Department of Commerce approved the California Coastal Management Plan. The same year, Interior began preparing Lease Sale No. 53 — a sale of OCS leases off the California coast near Santa Barbara. Interior first asked several state and federal agencies to report on potential oil and gas resources in this area. The agency then requested bidders, federal and state agencies, environmental organizations, and the public to identify which of 2,036 tracts in the area should be offered for lease. In October 1978, Interior announced the tentative selection of 243 tracts, including 115 tracts situated in the Santa Maria Basin located off western Santa Barbara. Various meetings were then held with state agencies. Consultations with other federal agencies were also initiated. Interior issued a Draft Environmental Impact Statement in April 1980. On July 8, 1980, the California Coastal Commission informed Interior that it had determined Lease Sale No. 53 to be an activity “directly affecting” the California coastal zone. The State Commission therefore demanded a consistency determination — a showing by Interior that the lease sale would be “consistent” to the “maximum extent practicable” with the state coastal zone management program. Interior responded that the lease sale would not “directly affect” the California coastal zone. Nevertheless, Interior decided to remove 128 tracts, located in four northern basins, from the proposed lease sale, leaving only the 115 tracts in the Santa Maria Basin. In September 1980, Interior issued a final Environmental Impact Statement. On October 27, 1980, it published a proposed notice of sale, limiting bidding to the remaining 115 blocks in the Santa Maria Basin. 45 Fed. Reg. 71140 (1980). On December 16, 1980, the State Commission reiterated its view that the sale of the remaining tracts in the Santa Maria Basin “directly affected” the California coastal zone. The Commission expressed its concern that oil spills on the OCS could threaten the southern sea otter, whose range was within 12 miles of the 81 challenged tracts. The Commission explained that it “has been consistent in objecting to proposed offshore oil development within specific buffer zones around special sensitive marine mammal and seabird breeding areas . . . .” App. 77. The Commission concluded that 31 more tracts should be removed from the sale because “leasing within 12 miles of the Sea Otter Range in the Santa Maria Basin would not be consistent” with the California Coastal Management Program. Id., at 79. California Governor Brown later took a similar position, urging that 34 more tracts be removed. Id., at 81. Interior rejected the State’s demands. In the Secretary’s view, no consistency review was required because the lease sale did not engage CZMA § 307(c)(1), and the Governor’s request was not binding because it failed to strike a reasonable balance between the national and local interests. On April 10, 1981, Interior announced that the lease sale of the 115 tracts would go forward, and on April 27 issued a final notice of sale. 46 Fed. Reg. 23674 (1981). California and other interested parties (hereafter respondents) filed two substantially similar suits in Federal District Court to enjoin the sale of 29 tracts situated within 12 miles of the Sea Otter Range. Both complaints alleged, inter alia, Interior’s violation of § 307(c)(1) of CZMA. They argued that leasing sets in motion a chain of events that culminates in oil and gas development, and that leasing therefore “directly affects” the coastal zone within the meaning of § 307(c)(1). The District Court entered a summary judgment for respondents on the CZMA claim. California v. Watt, 520 F. Supp. 1359 (CD Cal. 1981). The Court of Appeals for the Ninth Circuit affirmed that portion of the District Court judgment that required a consistency determination before the sale. California v. Watt, 683 F. 2d 1253 (1982). We granted certiorari, 461 U. S. 925 (1983), and we now reverse. HH H-I J — i Whether the sale of leases on the OCS is an activity “directly affecting” the coastal zone is not self-evident. As already noted, OCS leases involve submerged lands outside the coastal zone, and as we shall discuss, an OCS lease authorizes the holder to engage only in preliminary exploration; further administrative approval is required before full exploration or development may begin. Both sides concede that the preliminary exploration itself has no significant effect on the coastal zone. Both also agree that a lease sale is one (not the first, see infra, at 337) in a series of decisions that may culminate in activities directly affecting that zone. A We are urged to focus first on the plain language of § 307(c) (1). Interior contends that “directly affecting” means “[h]av[ing] a [d]irect, [identifiable [i]mpact on [t]he [c]oastal [z]one.” Brief for Federal Petitioners 20. Respondents insist that the phrase means “[i]nitiat[ing] a [s]eries of [ejvents of [c]oastal [m]anagement [c]onsequence.” Brief for Respondent State of California et al. 10. But CZMA nowhere defines or explains which federal activities should be viewed as “directly affecting” the coastal zone, and the alternative verbal formulations proposed by the parties, both of which are superficially plausible, find no support in the Act itself. We turn therefore to the legislative history. A fairly detailed review is necessary, but that review persuades us that Congress did not intend OCS lease sales to fall within the ambit of CZMA § 307(c)(1). In the CZMA bills first passed by the House and Senate, § 307(c)(l)’s consistency requirements extended only to federal activities “in” the coastal zone. The “directly affecting” standard appeared nowhere in § 307(c)(l)’s immediate antecedents. It was the House-Senate Conference Committee that replaced “in the coastal zone” with “directly affecting the coastal zone.” Both Chambers then passed the Conference bill without discussing or even mentioning the change. At first sight, the Conference’s adoption of “directly affecting” appears to be a surprising, unexplained, and subsequently unnoticed expansion in the scope of § 307(c)(1), going beyond what was required by either of the versions of § 307(c)(1) sent to the Conference. But a much more plausible explanation for the change is available. The explanation lies in the two different definitions of the “coastal zone.” The bill the Senate sent to the Conference defined the coastal zone to exclude “lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers or agents.” This exclusion would reach federal parks, military installations, Indian reservations, and other federal lands that would lie within the coastal zone but for the fact of federal ownership. Under the Senate bill, activities on these lands would thus have been entirely exempt from compliance with state management plans. By contrast, the House bill’s definition of “coastal zone” included lands under federal jurisdiction; thus federal activities on those lands were to be fully subject to §307(c)(l)’s consistency requirement. Under both bills, however, submerged lands on the OCS were entirely excluded from the coastal zone, and federal agency activities in those areas thus were exempt from §307(c)(l)’s consistency requirement. Against this background, the Conference Committee’s change in § 307(c)(1) has all the markings of a simple compromise. The Conference accepted the Senate’s narrower definition of the “coastal zone,” but then expanded § 307(c)(1) to cover activities on federal lands not “in” but nevertheless “directly affecting” the zone. By all appearances, the intent was to reach at least some activities conducted in those federal enclaves excluded from the Senate’s definition of the “coastal zone.” Though cryptic, the Conference Report’s reference to the change in § 307(c)(1) fully supports this explanation. “The Conferees . . . adopted the Senate language . . . which made it clear that Federal lands are not included within a state’s coastal zone. As to the use of such lands which would affect a state’s coastal zone, the provisions of section S07(c) would apply.” H. R. Conf. Rep. No. 92-1544, p. 12 (1972) (emphasis added). In the entire Conference Report, this is the only mention of the definition of the coastal zone chosen by the Conference, and the only hint of an explanation for the change in § 307(c)(1). The “directly affecting” language was not deemed worthy of note by any Member of Congress in the subsequent floor debates. The implication seems clear: “directly affecting” was used to strike a balance between two definitions of the “coastal zone.” The legislative history thus strongly suggests that OCS leasing, covered by neither the House nor the Senate version of § 307(c)(1), was also intended to be outside the coverage of the Conference’s compromise. Nonetheless, the literal language of § 307(c)(1), read without reference to its history, is sufficiently imprecise to leave open the possibility that some types of federal activities conducted on the OCS could fall within §307(c)(l)’s ambit. We need not, however, decide whether any OCS activities other than oil and gas leasing might be covered by § 307(c)(1), because further investigation reveals that in any event Congress expressly intended to remove the control of OCS resources from CZMA’s scope. B If § 307(c)(1) and its history standing alone are less than crystalline, the history of other sections of the original CZMA bills impels a narrow reading of that clause. Every time it faced the issue in the CZMA debates, Congress deliberately and systematically insisted that no part of CZMA was to reach beyond the 3-mile territorial limit. There are, first, repeated statements in the House and Senate floor debates that CZMA is concerned only with activities on land or in the territorial sea, not on the OCS, and that the allocation of state and federal jurisdiction over the coastal zone and the OCS was not to be changed in any way. But Congress took more substantial and significant action as well. Congress debated and firmly rejected at least four proposals to extend parts of CZMA to reach OCS activities. Section 313 of the House CZMA bill, as reported by Committee and passed by the House, embodied the most specific of these proposals. That section would have achieved explicitly what respondents now contend § 307(c)(1) achieves implicitly. It provided: “(a) The Secretary shall develop ... a program for the management of the area outside the coastal zone and within twelve miles of the [coast] .... “(b) To the extent that any part of the management program . . . shall apply to any high seas area, the subja-cent seabed and subsoil of which lies within the seaward boundary of a coastal state, . . . the program shall be coordinated with the coastal state involved. . . . “(c) The Secretary shall, to the maximum extent practicable, apply the program ... to waters which are adjacent to specific areas in the coastal zone which have been designated by the states for the purpose of preserving or restoring such areas for their conservation, recreational, ecological, or esthetic values.” H. R. 14146, 92d Cong., 2d Sess., §313 (1972), reprinted in H. R. Rep. No. 92-1049, p. 7 (1972). Congressman Anderson of California, the drafter of this section and coauthor of the House CZMA bill, explained the section’s purpose on the floor of the House. In light of the instant litigation, his comments were remarkably prescient. By 1972, Congressman Anderson pointed out, California had established seven marine sanctuaries, including one located near Santa Barbara, Cal., in the area allegedly threatened by the leases here in dispute. “These State-established sanctuaries, which extend from the coastline seaward to 3 miles, account for nearly a fourth of the entire California coast. “However, the Federal Government has jurisdiction outside the State area, from 3 miles to 12 miles at sea. All too often, the Federal Government has allowed development and drilling to the detriment of the State program. “A case in point is Santa Barbara where California established a marine sanctuary banning the drilling of oil in the area under State authority. “Yet, outside the sanctuary — in the federally controlled area — the Federal Government authorized drilling which resulted in the January 1969 blowout. This dramatically illustrated the point that oil spills do not respect legal jurisdictional lines.” 118 Cong. Rec. 26484 (1972). House §313, Congressman Anderson went on to explain, would play the crucial role of encouraging federal OCS oil and gas leasing to be conducted in a manner consistent with state management programs. Ibid.; see also id., at 26495, 35549-35550. Since House § 313 would have provided respondents with precisely the protection they now seek here, it is significant that the Conference Committee, and ultimately the Congress as a whole, flatly rejected the provision. And the reason for the rejection, as explained in the Conference Report, was to forestall conflicts of the type before us now. “The Conferees . . . excluded [House §313] authorizing a Federal management program for the contiguous zone of the United States, because the provisions relating thereto did not prescribe sufficient standards or criteria and would create 'potential conflicts with legislation already in existence concerning Continental Shelf resources.” H. R. Conf. Rep. No. 92-1544, p. 15 (1972) (emphasis added). The House bill included another similar provision that would have been almost equally favorable to respondents here — had it not been rejected by the Conference and subsequently by Congress as a whole. Sections 312(b), (c), of the House bill invited the Secretary of Commerce to extend coastal zone marine sanctuaries established by the States into the OCS region. But the Conference Committee rejected House §312 as well. The Conference Report explained: “The Conferees agreed to delete the provisions of the House version relating to extension of estuarine sanctuaries, in view of the fact that the need for such provisions appears to be rather remote and could cause problems since they would extend beyond the territorial limits of the United States.” H. R. Conf. Rep. No. 92-1544, pp. 14-15 (1972). When the Conference bill returned to the House, with House §§312 and 313 deleted, Congressman Anderson expressed his dismay: “I am deeply disappointed that the Senate conferees would not accept the position of the House of Representatives regarding the extension of State-established marine sanctuaries to areas under Federal jurisdiction. “. . . [W]e were successful, in committee, in adding a provision which I authored designed to protect State-established sanctuaries, such as exis[t] off Santa Barbara, Calif., from federally authorized development. “This provision would have required the Secretary to apply the coastal zone program to waters immediately adjacent to the coastal waters of a State, which that State has designated for specific preservation purposes. “It was accepted overwhelmingly by the House of Representatives despite the efforts of the oil and petroleum industry to defeat it. “But what they failed to accomplish in the House, they accomplished in the conference committee . . . .” 118 Cong. Rec. 35549-35550 (1972). In light of these comments by Congressman Anderson, and the express statement in the Conference Report that House § 313 was removed to avoid “conflicts with legislation already in existence concerning Continental Shelf resources,” see supra, at 327, it is fanciful to suggest that the Conferees intended the “directly affecting” language of § 307(c)(1) to substitute for the House §313’s specific and considerably more detailed language. Certainly the author of House § 313 recognized that the amended § 307(c)(1) could not serve that purpose. Two similar attempts to extend CZMA’s reach beyond the coastal zone were made in the Senate. These, as well, were firmly rejected on the Senate floor or in Conference. c To recapitulate, the “directly affecting” language in § 307(c)(1) was, by all appearances, only a modest compromise, designed to offset in part the narrower definition of the coastal zone favored by the Senate and adopted by the Conference Committee. Section 307(c)(l)’s “directly affecting” language was aimed at activities conducted or supported by federal agencies on federal lands physically situated in the coastal zone but excluded from the zone as formally defined by the Act. Consistent with this view, the same Conference Committee that wrote the “directly affecting” language rejected two provisions in the House bill that would have required precisely what respondents seek here — coordination of federally sponsored OCS activities with state coastal management and conservation programs. In light of the Conference Committee’s further, systematic rejection of every other attempt to extend the reach of CZMA to the OCS, we are impelled to conclude that the 1972 Congress did not intend § 307(c)(1) to reach OCS lease sales. IV A A broader reading of § 307(c)(1) is not compelled by the thrust of other CZMA provisions. First, it is clear beyond peradventure that Congress believed that CZMA’s purposes could be adequately effectuated without reaching federal activities conducted outside the coastal zone. Both the Senate and House bills were originally drafted, debated, and passed, with § 307(c)(1) expressly limited to federal activities in the coastal zone. Broad arguments about CZMA’s structure, the Act’s incentives for the development of state management programs, and the Act’s general aspirations for state-federal cooperation thus cannot support the expansive reading of § 307(c)(1) urged by respondents. Moreover, a careful examination of the structure of CZMA § 307 suggests that lease sales are a type of federal agency activity not intended to be covered by § 307(c)(1) at all. Section 307(c) contains three coordinated parts. Paragraph (1) refers to activities “conduct[ed] or support[ed]” by a federal agency. Paragraph (2) covers “development project[s]” “undertake[n]” by a federal agency. Paragraph (3) deals with activities by private parties authorized by a federal agency’s issuance of licenses and permits. The first two paragraphs thus reach activities in which the federal agency is itself the principal actor, the third reaches the federally approved activities of third parties. Plainly, Interior’s OCS lease sales fall in the third category. Section 307(c)(1) should therefore be irrelevant to OCS lease sales, if only because drilling for oil or gas on the OCS is neither “conduct[ed]” nor “support[ed]” by a federal agency. Section 307(c)(3), not § 307(c)(1), is the more pertinent provision. Respondents’ suggestion that the consistency review requirement of § 307(c)(3) is focused only on the private applicants for permits or licenses, not federal agencies, is squarely contradicted by abundant legislative history and the language of § 307(c)(3) itself. CZMA § 307(c)(3) definitely does not require consistency review of OCS lease sales. As enacted in 1972, that section addressed the requirements to be imposed on federal licensees whose activities might affect the coastal zone. A federal agency may not issue a “license or permit” for any activity “affecting land or water uses in the coastal zone” without ascertaining that the activity is consistent with the state program or otherwise in the national interest. Each affected State with an approved management program must concur in the issuance of the license or permit; a State's refusal to do so may be overridden only if the Secretary of Commerce finds that the proposed activity is consistent with CZMA’s objectives or otherwise in the interest of national security. Significantly, § 307(c)(3) contained no mention of consistency requirements in connection with the sale of a lease. In 1976, Congress expressly addressed — and preserved— that omission. Specific House and Senate Committee proposals to add the word “lease” to § 307(c)(3) were rejected by the House and ultimately by the Congress as a whole. It is surely not for us to add to the statute what Congress twice decided to omit. Instead of inserting the word “lease” in § 307(c)(3), the House-Senate Conference Committee renumbered the existing § 307(c)(3) as § 307(c)(3)(A), and added a second subpara-graph, § 307(c)(3)(B). Respondents apparently concede that of these two subparagraphs, only the latter is now relevant to oil and gas activities on the OCS. Brief for Respondent State of California et al. 44, and n. 76; Brief for Respondent Natural Resources Defense Council, Inc., et al. 7, n. 6. The new subparagraph § 307(c)(3)(B), however, provides only that applicants for federal licenses or permits to explore for, produce, or develop oil or gas on the OCS must first certify consistency with affected state plans. Again, there is no suggestion that a lease sale by Interior requires any review of consistency with state management plans. B If the distinction between a sale of a “lease” and the issuance of a permit to “explore for,” “produce,” or “develop” oil or gas seems excessively fine, it is a distinction that Congress has codified with great care. CZMA § 307(c)(8)(B) expressly refers to the Outer Continental Shelf Lands Act of 1953, 67 Stat. 462, as amended, 43 U. S. C. §1331 et seq. (1976 ed., Supp. V) (OCSLA), so it is appropriate to turn to that Act for a clarification of the differences between a lease sale and the approval of a plan for “exploration,” “development,” or “production.” OCSLA was enacted in 1953 to authorize federal leasing of the OCS for oil and gas development. The Act was amended in 1978 to provide for the “expeditious and orderly development, subject to environmental safeguards,” of resources on the OCS. 43 U. S. C. §1332(3) (1976 ed., Supp. V). As amended, OCSLA confirms that at least since 1978 the sale of a lease has been a distinct stage of the OCS administrative process, carefully separated from the issuance of a federal license or permit to explore for, develop, or produce gas or oil on the OCS. Before 1978, OCSLA did not define the terms “exploration,” “development,” or “production.” But it did define a “mineral lease” to be “any form of authorization for the exploration for, or development or removal of deposits of, oil, gas, or other minerals.” 43 U. S. C. § 1331(c). The pre-1978 OCSLA did not specify what, if any, rights to explore, develop, or produce were transferred to the purchaser of a lease; the Act simply stated that a lease should “contain such rental provisions and such other terms and provisions as the Secretary may prescribe at the time of offering the area for lease.” 43 U. S. C. § 1337(b)(4). Thus before 1978 the sale by Interior of an OCS lease might well have engaged CZMA § 307(c)(3)(B) by including express or implied federal approval of a “plan for the exploration or development of, or production from” the leased tract. The leases in dispute here, however, were sold in 1981. By then it was quite clear that a lease sale by Interior did not involve the submission or approval of “any plan for the exploration or development of, or production from” the leased tract. Under the amended OCSLA, the purchase of a lease entitles the purchaser only to priority over other interested parties in submitting for federal approval a plan for exploration, production, or development. Actual submission and approval or disapproval of such plans occur separately and later. Since 1978 there have been four distinct statutory stages to developing an offshore oil well: (1) formulation of a 5-year leasing plan by the Department of the Interior; (2) lease sales; (3) exploration by the lessees; (4) development and production. Each stage involves separate regulatory review that may, but need not, conclude in the transfer to lease purchasers of rights to conduct additional activities on the OCS. And each stage includes specific requirements for consultation with Congress, between federal agencies, or with the States. Formal review of consistency with state coastal management plans is expressly reserved for the last two stages. (1) Preparation of a leasing program. The first stage of OCS planning is the creation of a leasing program. Interior is required to prepare a 5-year schedule of proposed OCS lease sales. 43 U. S. C. § 1344 (1976 ed., Supp. V). During the preparation of that program Interior must solicit comments from interested federal agencies and the Governors of affected States, and must respond in writing to all comments or requests received from the State Governors. 43 U. S. C. § 1344(c) (1976 ed., Supp. V). The proposed leasing program is then submitted to the President and Congress, together with comments received by the Secretary from the Governor of the affected State. 43 U. S. C. § 1344(d)(2) (1976 ed., Supp. V). Plainly, prospective lease purchasers acquire no rights to explore, produce, or develop at this first stage of OCSLA planning, and consistency review provisions of CZMA § 307(c)(3)(B) are therefore not engaged. There is also no suggestion that CZMA § 307(c)(1) consistency requirements operate here, though we note that preparation and submission to Congress of the leasing program could readily be characterized as “initiating] a [s]eries of [e]vents of [c]oastal [m]anagement [c]onsequence.” Brief for Respondent State of California et al. 10. (2) Lease sales. The second stage of OCS planning — the stage in dispute here — involves the solicitation of bids and the issuance of offshore leases. 43 U. S. C. § 1337(a) (1976 ed., Supp. V). Requirements of the National Environmental Policy Act and the Endangered Species Act must be met first. The Governor of any affected State is given a formal opportunity to submit recommendations regarding the “size, timing, or location” of a proposed lease sale. 43 U. S. C. § 1345(a) (1976 ed., Supp. V). Interior is required to accept these recommendations if it determines they strike a reasonable balance between the national interest and the well-being of the citizens of the affected State. 43 U. S. C. § 1345 (c) (1976 ed., Supp. V). Local governments are also permitted to submit recommendations, and the Secretary “may” accept these. 43 U. S. C. §§ 1345(a), (c) (1976 ed., Supp. V). The Secretary may then proceed with the actual lease sale. Lease purchasers acquire the right to conduct only limited “preliminary” activities on the OCS — geophysical and other surveys that do not involve seabed penetrations greater than 300 feet and that do not result in any significant environmental impacts. 30 CFR §250.34-1 (1982). Again, there is no suggestion that these activities in themselves “directly affect” the coastal zone. But by purchasing a lease, lessees acquire no right to do anything more. Under the plain language of OCSLA, the purchase of a lease entails no right to proceed with full exploration, development, or production that might trigger CZMA § 307(c)(3)(B); the lessee acquires only a priority in submitting plans to conduct those activities. If these plans, when ultimately submitted, are disapproved, no further exploration or development is permitted. (3) Exploration. The third stage of OCS planning involves review of more extensive exploration plans submitted to Interior by lessees. 43 U. S. C. §1340 (1976 ed., Supp. V). Exploration may not proceed until an exploration plan has been approved. A lessee’s plan must include a certification that the proposed activities comply with any applicable state management program developed under CZMA. OCSLA expressly provides for federal disapproval of a plan that is not consistent with an applicable state management plan unless the Secretary of Commerce finds that the plan is consistent with CZMA goals or in the interest of national security. 43 U. S. C. § 1340(c)(2) (1976 ed., Supp. V). The plan must also be disapproved if it would “probably cause serious harm or damage ... to the marine, coastal, or human environment . . . .” 43 U. S. C. §§ 1334(a)(2)(A)(i), 1340(c)(1) (1976 ed., Supp. V). If a plan is disapproved for the latter reason, the Secretary may “cancel such lease and the lessee shall be entitled to compensation . . . .” 43 U. S. C. § 1340(c)(1) (1976 ed., Supp. V). There is, of course, no question that CZMA consistency review requirements operate here. CZMA § 307(c)(3)(B) expressly applies, and as noted, OCSLA itself refers to the applicable CZMA provision. (U) Development and production. The fourth and final stage is development and production. 43 U. S. C. § 1351 (1976 ed., Supp. V). The lessee must submit another plan to Interior. The Secretary must forward the plan to the Governor of any affected State and, on request, to the local governments of affected States, for comment and review. 43 U. S. C. §§ 1345(a), 1351(a)(3) (1976 ed., Supp. V). Again, the Governor’s recommendations must be accepted, and the local governments’ may be accepted, if they strike a reasonable balance between local and national interests. Reasons for accepting or rejecting a Governor’s recommendations must be communicated in writing to the Governor. 43 U. S. C. § 1345(c) (1976 ed., Supp. V). In addition, the development and production plan must be consistent with the applicable state coastal management program. The State can veto the plan as “inconsistent,” and the veto can be overridden only by the Secretary of Commerce. 43 U. S. C. § 1351(d) (1976 ed., Supp. V). A plan may also be disapproved if it would “probably cause serious harm or damage . . . to the marine, coastal or human environments.” 43 U. S. C. § 1351(h)(l)(D)(i) (1976 ed., Supp. V). If a plan is disapproved for the latter reason, the lease may again be canceled and the lessee is entitled to compensation. 43 U. S. C. § 1351(h)(2)(C) (1976 ed., Supp. V). Once again, the applicability of CZMA to this fourth stage of OCS planning is not in doubt. CZMA § 307(c)(3)(B) applies by its own terms, and is also expressly invoked by OCSLA. Congress has thus taken pains to separate the various federal decisions involved in formulating a leasing program, conducting lease sales, authorizing exploration, and allowing development and production. Since 1978, the purchase of an OCS lease, standing alone, entails no right to explore for, develop, or produce oil and gas resources on the OCS. The first two stages are not subject to consistency review; instead, input from State Governors and local governments is solicited by the Secretary of the Interior. The last two stages invite further input for Governors or local governments, but also require formal consistency review. States with approved CZMA plans retain considerable authority to veto inconsistent exploration or development and production plans put forward in those latter stages. The stated reason for this four-part division was to forestall premature litigation regarding adverse environmental effects that all agree will flow, if at all, only from the latter stages of OCS exploration and production. c Having examined the coordinated provisions of CZMA § 307(c)(3) and OCSLA we return to CZMA § 307(c)(1). As we have noted, the logical paragraph to examine in connection with a lease sale is not § 307(c)(1), but § 307(c)(3). Nevertheless, even if OCS lease sales are viewed as involving an OCS activity “conduct[ed]” or “supported]” by a federal agency, lease sales can no longer aptly be characterized as “directly affecting” the coastal zone. Since 1978 the sale of a lease grants the lessee the right to conduct only very limited, “preliminary activities” on the OCS. It does not authorize full-scale exploration, development, or production. Those activities may not begin until separate federal approval has been obtained, and approval may be denied on several grounds. If approval is denied, the lease may then be canceled, with or without the payment of compensation to the lessee. In these circumstances, the possible effects on the coastal zone that may eventually result from the sale of a lease cannot be termed “direct.” It is argued, nonetheless, that a lease sale is a crucial step. Large sums of money change hands, and the sale may therefore generate momentum that makes eventual exploration, development, and production inevitable. On the other side, it is argued that consistency review at the lease sale stage is at best inefficient, and at worst impossible: Leases are sold before it is certain if, where, or how exploration will actually occur. The choice between these two policy arguments is not ours to make; it has already been made by Congress. In the 1978 OCSLA amendments Congress decided that the better course is to postpone consistency review until the two later stages of OCS planning, and to rely on less formal input from State Governors and local governments in the two earlier ones. It is not for us to negate the lengthy, detailed, and coordinated provisions of CZMA § 307(c)(3)(B), and OCSLA, 43 U. S. C. §§1344-1346 and 1351 (1976 ed., Supp. Y), by a superficially plausible but ultimately unsupportable construction of two words in CZMA § 307(c)(1). V Collaboration among state and federal agencies is certainly preferable to confrontation in or out of the courts. In view of the substantial consistency requirements imposed at the exploration, development, and production stages of OCS planning, Interior, as well as private bidders on OCS leases, might be well advised to ensure in advance that anticipated OCS operations can be conducted harmoniously with state coastal management programs. But our review of the history of CZMA § 307(c)(1), and the coordinated structures of the amended CZMA and OCSLA, persuade us that Congress did not intend § 307(c)(1) to mandate consistency review at the lease sale stage. Accordingly, the decision of the Court of Appeals for the Ninth Circuit is reversed insofar as it requires petitioners to conduct consistency review pursuant to CZMA § 307(c)(1) before proceeding with Lease Sale No. 53. It is so ordered. Four of the objectionable tracts were combined as two for sale purposes, so the Commission’s conclusion was actually directed to 29 sale tracts. California v. Watt, 520 F. Supp. 1359, 1367 (CD Cal. 1981). Again, the objection encompassed only 32 sale tracts. Ibid. The litigation was instituted through separate but similar complaints filed by the State of California and by the Natural Resources Defense Council, Inc., the Sierra Club, Friends of the Earth, Friends of the Sea Otter, and the Environmental Coalition on Lease Sale No. 53. Plaintiffs sought declaratory and injunctive relief against the Secretary of the Interior and two other officials within the Department of the Interior. The Department itself, and the Bureau of Land Management, were also named as defendants. Western Oil and Gas Association, a regional trade association, and 12 of its members, intervened as defendants. Subsequently, various local governmental entities within California intervened as plaintiffs in the case commenced by the State. Petitioner-defendants (hereafter petitioners) state their disagreement with the Court of Appeals for the Ninth Circuit’s holding that environmental groups and local governments have standing to sue under CZMA § 307(c)(1), but do not challenge that standing decision here. Since the State of California clearly does have standing, we need not address the standing of the other respondents, whose position here is identical to the State’s. Respondents claimed below that petitioners had also violated four other federal statutes. The District Court ruled for the defendants on those four claims, and the Court of Appeals for the Ninth Circuit affirmed the judgment on the non-CZMA claims that were appealed. Those claims are not presented here. The Court of Appeals went on to rule that the Federal Government, not the State, makes the final determination as to whether a federal activity is consistent “to the maximum extent practicable” with the state management program. In view of our conclusion that a lease sale is not subject to §307(c)(l)’s consistency review requirements, we need not decide who holds final authority to determine when sufficient consistency has been achieved. The National Oceanic and Atmospheric Administration (NOAA) in the Department of Commerce is the federal agency charged with administering CZMA. See 16 U. S. C. § 1463 (1982 ed). Under normal circumstances NOAA’s understanding of the meaning of CZMA § 307(c)(1) would be entitled to deference by the courts. But in construing § 307(c)(1) the agency has walked a path of such tortured vacillation and indecision that no help is to be gained in that quarter. In 1977, NOAA expressly declined to take a position on the applicability of § 307(c)(1) to the leasing process. See 42 Fed. Reg. 43591-43592 (1977). In 1978, NOAA issued regulations purporting to clarify § 307(c)(1), but the agency expressly acknowledged that the applicability of the section to lease sales was “still under consideration.” 43 Fed. Reg. 10512 (1978). Interior nevertheless objected to the new verbal formulation of “directly affecting” that NOAA had proposed, and the interdepartmental dispute was submitted to the Department of Justice’s Office of Legal Counsel (OLC). OLC rejected crucial portions of NOAA’s regulations as inconsistent with the statutory language, and those portions were withdrawn by NOAA. App. 45-46; 44 Fed. Reg. 37142 (1979). In 1980 NOAA noted its view that OCS sales trigger consistency review requirements in a letter from NOAA to State Coastal Management Program Directors (Apr. 9, 1980). NOAA later renewed its attempt to arrive at a general definition of “directly affecting.” Two weeks after the instant litigation commenced, NOAA took the position that lease sales do not directly affect the coastal zone. 46 Fed. Reg. 26660 (1981). But shortly after the regulation was published in final form, id., at 35253, the House Committee on Merchant Marine and Fisheries exercised a “legislative veto,” see 16 U. S. C. § 1463a (1982 ed.), and the agency withdrew its regulation. 47 Fed. Reg. 4231 (1982). This formulation finds support in 1980 House and Senate Reports. H. R. Rep. No. 96-1012, p. 34; S. Rep. No. 96-783, p. 11. For reasons explained in n. 15, infra, we do not believe these Committee views, articulated many years after CZMA’s passage, are reliable guides to the intent of the full Congress acting in 1972. As discussed infra, at 331-341, other sections of CZMA, as well as related provisions in the Outer Continental Shelf Lands Act of 1953, have been significantly amended since 1972. But § 307(c)(1) has not been changed since its enactment. Our decision must therefore turn principally on the language of § 307(c)(1) and the legislative history of the original, 1972 CZMA. S. 3507, 92d Cong., 2d Sess., §304(a) (1972), reprinted at 118 Cong. Rec. 14188 (1972). The Senate’s definition is now codified (with subsequent minor amendments) in 16 U. S. C. § 1453(1) (1982 ed.). There was language in an earlier Senate Report (not the final CZMA Senate Report) urging that federal activities determined to have a “functional interrelationship” with the coastal zone “should” be administered consistently with approved state management programs. S. Rep. No. 92-526, pp. 20, 30 (1971). Nine years later a House Report reiterated the “functional interrelationship” standard. H. R. Rep. No. 96-1012, p. 34 (1980). But the Senate Report’s language was purely precatory. It used “should,” rather than the “shall” that actually appears in § 307(c)(1), and more importantly, was written in connection with a Senate bill that would have entirely exempted activities on all federal lands from § 307(c)(l)’s mandate. It is fanciful to suggest that an early Senate Report should be read as endorsing an expansive interpretation of § 307(c)(l)’s “directly affecting” language when the Senate bill that the Report accompanied did not include the relevant phrase and indisputably did not reach OCS lease sales. On the other hand, in comments on the floor made before the House acted on the post-Conference bill, Congressman Mosher stated: “The final version in no way affects the jurisdictional responsibilities of . . . the Department of the Interior in regard to the administration of Federal lands, since the conferees have specifically eliminated those land areas from the definition of coastal zone.” 118 Cong. Rec. 35548 (1972). See, e. g., id., at 14180 (“This bill covers the territorial seas; it does not cover the Outer Continental Shelf”) (remark of Sen. Stevens); id., at 14184 (facilities in the “contiguous zone” “would be outside the jurisdiction of the neighboring States”) (remark of Sen. Boggs); ibid, (“this bill attempts to deal with the Territorial Sea, not the Outer Continental Shelf”) (remark of Sen. Moss); id., at 14185 (“we wanted to make certain that Federal jurisdiction was unimpaired beyond the 3-mile limit in the territorial sea”) (remark of Sen. Hollings); ibid, (“this bill focuses on the territorial sea or the area that is within State jurisdiction, and preserves the Federal jurisdiction beyond, which is not to be considered or disturbed by the bill at this time”) (remark of Sen. Moss); id., at 26479 (“the measure does not diminish Federal or State jurisdiction, responsibility, or rights under other programs and does not supersede, modify, or repeal existing Federal law”) (remark of Cong. Mosher); id., at 26484 (“the Federal Government has jurisdiction outside the State area, from 3 miles to 12 miles at sea”) (remark of Cong. Anderson); id., at 35548 (“The final version [of CZMA] in no way affects the jurisdictional responsibilities of. . . the Department of Interior in regard to the administration of Federal lands, since the conferees have specifically eliminated those land areas from the definition of coastal zone”) (remark of Cong. Mosher); id., at 35550 (“the Federal Government has jurisdiction outside the State area, from 3 to 12 miles at sea”) (remark of Cong. Anderson). Congressman Anderson repeated these remarks when he opposed an amendment that would have weakened House §312, id., at 26495, and again when he expressed his concern over the removal of House § 312 by the Senate-House Conference, id., at 35550. The section provided: “(b) When an estuarine sanctuary is established by a coastal state . . . the Secretary, at the request of the state concerned, . . . may extend the established estuarine sanctuary seaward beyond the coastal zone, to the extent necessary to effectuate the purposes for which the estuarine sanctuary was established. “(c) The Secretary shall. . . assure that the development and operation [of the sanctuary extension] is coordinated with the development and operation of the estuarine sanctuary of which it forms an extension.” H. R. 14146, 92d Cong., 2d Sess., §§312(b), (c) (1972), reprinted in H. R. Rep. No. 92-1049, p. 7 (1972). An amendment to CZMA proposed by Senator Boggs on the Senate floor would have given respondents all that they are asking for here. The amendment stated: “Notwithstanding any other provision of this Act, no Federal department or agency shall construct, or license, or lease, or approve in any way the construction of any facility of any kind beyond the territorial sea off the coast of the United States until (1) such department or agency has filed with the Administrator of the Environmental Protection Agency, a complete report with respect to the proposed facility; (2) the Administrator has forwarded such report to the Governor of each adjacent coastal State which might be adversely affected by pollution from such facility; and (3) each such Governor has filed an approval of such proposal with the Adminis-trator_” 118 Cong. Rec. 14183 (1972). In proposing the amendment Senator Boggs explained his concern with offshore oil transfer terminals located at sites outside the 3-mile territorial limit. “Such sites, of course, would place these facilities in the contiguous zone, or in international waters on the Continental Shelf. If that were so, of course, the facility would be outside the jurisdiction of the neighboring States. “Yet, the coastal zones of these neighboring States could be severely and adversely affected by pollution that might come from such an offshore facility. “. . . I believe it is important that the affected States play a meaningful role in the plan to construct such a facility.” Id., at 14184. But other Senators immediately attacked Senator Boggs’ amendment. Senator Hollings stated: “The amendment. . . goes beyond the territorial sea and goes into what we agreed on and compromised on awhile ago. It goes beyond any territorial sea to construction of any facility on the ocean floor, into what we call a contiguous zone from the 3-mile limit to the 12-mile limit. “This amendment provides the Governor would have a veto over such matters. I do not think the Senate wants to go that far.” Ibid. Senator Moss agreed: “[Tjhis bill attempts to deal with the Territorial Sea, not the Outer Continental Shelf.” Ibid. In response, Senator Boggs conceded that the problem should be addressed in other legislation, and he withdrew the proposed amendment. Ibid. In addition, § 316(e)(1) of the Senate bill as amended on the floor of the Senate called on the National Academy of Sciences “to undertake a full investigation of the environmental hazards attendant on offshore drilling on the Atlantic Outer Continental Shelf.” S. 3507, 92d Cong., 2d Sess., § 316(c)(1) (1972), reprinted in 118 Cong. Rec. 14191 (1972). In the Senate debate several Senators voiced their opposition even to this modest venture outside the coastal zone. Senator Stevens, for example, argued that the provision was inappropriate because the OCS “is not even covered by this bill. This bill covers the territorial seas; it does not cover the Outer Continental Shelf.” Id., at 14180. Senator Moss added: “[S]ince the State coastal zone management programs relate only to the territorial sea, we should, therefore, be very careful of a study which extends beyond the territorial sea to encompass the Continental Shelf.” Id., at 14181. Again, the Conference Committee agreed; it deleted Senate § 316(c) without comment in the Conference Report. On the floor of the House Congressman Downing explained that the provision had been deleted “as non-germane.” Id., at 35547. Respondents rely heavily on four statements that'appear in Committee Reports issued years after CZMA was enacted. (1) A 1975 Senate Report stated: “The Committee’s intent when the 1972 Act was passed was for the consistency clause to apply to Federal leases for offshore oil and gas development, since such leases were viewed by the Committee to be within the phrase ‘licenses or permits’ [in § 307(c)(3)]. [The Report then discusses the proposed amendment that would insert ‘lease’ into § 307(c)(3).] In practical terms, this [amendment] means that the Secretary of the Interior would need to seek the certification of consistency from adjacent State governors before entering into a binding lease agreement with private oil companies.” S. Rep. No. 94-277, pp. 19-20 (1975). (2) One footnote in a 323-page House Report that accompanied the 1978 amendments to the Outer Continental Shelf Lands Act of 1953 stated: “The committee is aware that under the [CZMA] certain OCS activities including lease sales and approval of development and production plans must comply with ‘consistency’ requirements as to coastal zone management plans approved by the Secretary of Commerce. Except for specific changes made by Titles IV and V of the 1977 Amendments, nothing in this Act is intended to amend, modify or repeal any provision of [CZMA]. Specifically, nothing is intended to alter procedures under that Act for consistency once a State has an approved Coastal Zone Management Plan.” H. R. Rep. No. 95-590, p. 153, n. 52 (1977). (3) A 1980 House Report stated that the 1976 CZMA § 307 amendments “did not alter Federal agency responsibility to provide States with a consistency determination related to OCS decisions which preceded issuance of leases.” H. R. Rep. No. 96-1012, p. 28. (4) A 1980 Senate Report stated that under CZMA, “[t]he Department of the Interior’s activities which preced[e] lease sales . . . remain subject to the requirements of section 307(c)(1), As a result, intergovernmental coordination for purposes of OCS development commences at the earliest practicable time in the opinion of the Committee, as the Department of the Interior sets in motion a series of events which have consequences in the coastal zone.” S. Rep. No. 96-783, p. 11. In our view, these subsequent Committee interpretations of CZMA, written three or more years after CZMA was passed, are of little help in ascertaining the intent of Congress when CZMA § 307(c)(1) was passed in 1972. We note that the most relevant and unambiguous statement of the House Committee’s views appeared in House §§ 312 and 313 as originally reported out of Committee and passed by the House. But those sections were emphatically rejected by the full Congress when CZMA was enacted in 1972, see supra, at 324-329, and Committee-proposed amendments that would have had a similar effect were rejected when the Act was amended in 1976, see infra, at 334-335, and n. 18. Likewise, by 1976 the Senate Committee had taken a position favoring the extension of consistency review requirements to lease sales, see ibid., but that position too was subsequently rejected by the full Congress, see n. 18, infra. Legislative Committees’ desires to reaffirm positions they have taken that were rejected by the full Congress are understandable enough, but of little help in construing the intent behind the law actually enacted. Both the original § 307(e)(3) and the amended § 307(c)(3)(B), see infra, at 335, and n. 19, expressly address and constrain the actions of federal agencies. “No license or permit shall be granted by the Federal agency until the state . . . has concurred with the applicant’s [consistency] certification _” 16 U. S. C. § 1456(e)(3) (1982 ed.). “No Federal official or agency shall grant such person any license or permit for any activity . . . until [the affected] state . . . receives a copy of [the applicant’s certification of consistency and concurs in the certification or is overridden by the Secretary of Commerce].” 16 U. S. C. § 1456(c)(3)(B) (1982 ed.). Moreover, in the 1976 CZMA amendment debates Members of Congress uniformly viewed § 307(c)(3) as directly concerned with the consistency obligations of federal agencies. When Congress considered adding the word “lease” to § 307(e)(3), the shared assumption was that consistency requirements in § 307(c)(3) were functionally identical to those of § 307(c)(1). One Senator was of the view that the proposed amendment would “mak[e] it clear that Outer Continental Shelf leasing is a Federal activity subject to the Federal consistency provision . . . .” 121 Cong. Ree. 23075 (1975). Another commented that the addition to § 307(c)(3) would establish that “Federal agencies must conduct their activities consistent with” applicable state management programs. Id., at 23084. The Senate Report stated that the proposed § 307(c)(3) amendment, “[i]n practical terms, . . . means that the Secretary of the Interior would need to seek the certification of consistency from adjacent State governors before entering into a binding lease agreement with private oil companies.” S. Rep. No. 94-277, p. 20 (1975). And the House Report stated that the amendment would establish that “the OCS leasing process is indeed a federal action that undoubtedly has the potential for affecting a state’s coastal zone and, hence, must conform with approved state coastal management programs.” H. R. Rep. No. 94-878, p. 37 (1976); see also id., at 52-53. “[A]ny applicant for a required Federal license or permit to conduct an activity affecting land or water uses in the coastal zone. . . shall provide in the application to the licensing or permitting agency a certification that the proposed activity . . . will be conducted in a manner consistent with [the approved state management] program. ... At the earliest practicable time, the state . . . shall notify the Federal agency concerned that the state concurs with or objects to the applicant’s certification. ... No license or permit shall be granted by the Federal agency until the state . . . has concurred with the applicant’s certification . . . unless the Secretary. . . finds . . . that the activity is consistent with the objectives of [CZMA] or is otherwise necessary in the interest of national security.” 16 U. S. C. § 1456(c)(3) (1982 ed.). The bills reported out of House and Senate Committees would have inserted the word “lease” in § 307(c)(3). See H. R. Rep. No. 94-878, pp. 52-53 (1976); S. Rep. No. 94-277, pp. 19-20 (1975). The proposal passed the Senate but was removed on the floor of the House. 122 Cong. Rec. 6128 (1976). The Conference Committee decided not to introduce “lease” into § 307(c) (3). Instead, the Committee created the new § 307(c)(3)(B). The Conference Report explained: “The conference substitute follows the Senate bill in amending the Federal consistency requirement [of] section 307(c)(3).... The Senate bill required that each Federal lease (for example, offshore oil and gas leases) had to be submitted to each state with an approved coastal zone management program for a determination by that state as to whether or not the lease was consistent with its program. The conference substitute further elaborates on this provision and specifically applies the consistency requirement to the basic steps in the OCS leasing process — namely, the exploration, development and production plans submitted to the Secretary of the Interior. This provision will satisfy the state needs for complete information, on a timely basis, about the details of the oil industry’s offshore plans.” H. R. Conf. Rep. No. 94-1298, p. 30 (1976). “[A]ny person who submits to the Secretary of the Interior any plan for the exploration or development of, or production from, any area which has been leased under the Outer Continental Shelf Lands Act . . . shall, with respect to any exploration, development, or production described in such plan and affecting any land use or water use in the coastal zone . . . [certify] that each activity . . . complies with [the] state’s approved management program .... No Federal official or agency shall grant such person any license or permit for any activity . . . until [the state concurs or]. . . the Secretary finds .. . that each activity ... is consistent with the objectives of [CZMA] or is otherwise necessary in the interest of national security.” 16 U. S. C. § 1456(c)(3)(B) (1982 ed.). As discussed infra, at 339, § 11 of the OCSLA, 43 U. S. C. § 1340 (1976 ed., Supp. V), as amended in 1978, added a requirement for the submission and separate approval of an exploration plan following the purchase of a lease. However, that section made the requirements prospective only, to come into force 90 days after September 18, 1978. 43 U. S. C. § 1340(b) (1976 ed., Supp. V). Similarly, the 1978 OCSLA amendments required oil or gas leases to provide that development and production be conducted only in accordance with a subsequently submitted and approved plan, but extended this requirement only to leases issued after September 18, 1978. 43 U. S. C. § 1351(b) (1976 ed., Supp. V). OCSLA contains a saving clause that provides: “Except as otherwise expressly provided in this chapter, nothing in this chapter shall be construed to amend, modify, or repeal any provision of [CZMA].” 43 U. S. C. § 1866(a) (1976 ed., Supp. V). Our analysis of CZMA § 307(e)(1) is entirely consistent with this clause. A narrow construction of “directly affecting” is compelled by CZMA’s legislative history, standing alone. It is reinforced by CZMA § 307(c)(3), which expressly addresses the consistency review requirements to be imposed on OCS oil and gas programs. Section 307(c)(3) provides for consistency review prior to exploration, devélopment, and production, not prior to lease sales. CZMA itself invokes OCSLA, so it is appropriate to look to that Act for the distinction between lease sales on the one hand, and exploration, development, and production permits on the other. OCSLA confirms that a lease sale is a separate, distinct stage of OCS planning, not to be confused with exploration, development, or production. The 1978 OCSLA amendments are relevant not because they change any part of CZMA, but because they change, or at least substantially clarify, the rights transferred by Interior when a lease is sold. The House Report accompanying the 1978 OCSLA amendments explained: “[The consistency review provision imposed at the production stage] is intended to provide the mechanism for review and evaluation of, and decision on, development and production in a leased area, after consultation and coordination with all affected parties. “The committee considers this one of the most important provisions of the 1977 amendments. It provides a means to separate the Federal decision to allow private industry to explore for oil and gas from the Federal decision to allow development and production to proceed if the lessee finds oil and gas. The failure to have such a mechanism in the past has led to extensive litigation prior to lease sales, when onshore and environmental impacts of production activity are not yet known.” H. R. Rep. No. 95-590, p. 164 (1977). In his comments regarding the House’s 1976 refusal to add the word “lease” to CZMA § 307(c)(3), Congressman Murphy noted that “even if an organization had a lease it could not do much with it because the licenses and permits are required to deal with the development of oil on the Continental Shelf.” 122 Cong. Rec. 6128 (1976). The California Coastal Commission is also well aware of its power to demand consistency at later stages in OCS planning. In voicing its objections to the sale of the 31 disputed tracts the Commission warned: “Any attempt to explore or develop these tracts will face the strong possibility of an objection to a consistency certification of the Plan of Exploration or Development by the Commission.” App. 79.

Secretary of the Interior v. California

Justice Stevens, with whom Justice Brennan, Justice Marshall, and Justice Blackmun join, dissenting. In these eases, the State of California is attempting to enforce a federal statutory right. Its coastal zone management program was approved by the Federal Government pursuant to a statute enacted in 1972. In § 307(c)(1) of that statute, the Coastal Zone Management Act (CZMA), the Federal Government made a promise to California: “Each Federal agency conducting or supporting activities directly affecting the coastal zone shall conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs.” 86 Stat. 1285,16 U. S. C. § 1456(c)(1) (1982 ed.). The question in these cases is whether the Secretary of the Interior was conducting an activity directly affecting the California Coastal Zone when he sold oil and gas leases in the Pacific Ocean area immediately adjacent to that zone. One would think that this question could be easily answered simply by reference to a question of fact — does this sale of leases directly affect the coastal zone? The District Court made a finding that it did, which the Court of Appeals affirmed, and which is not disturbed by the Court. Based on a straightforward reading of the statute, one would think that that would be the end of the cases. The Court reaches a contrary conclusion, however, based on either or both of these two theories: (1) § 307(c)(1) only applies to federal activities that take place within the coastal zone itself or in a federal enclave within the zone — it is wholly inapplicable to federal activities on the Outer Continental Shelf (OCS) no matter how seriously they may affect the coastal zone; (2) even if the sale of oil leases by the Secretary of the Interior would have been covered by § 307(c)(1) when the CZMA was enacted in 1972, amendments to an entirely different statute adopted in 1978 mean that the leases cannot directly affect the coastal zone notwithstanding the fact that those amendments merely imposed additional obligations on private lessees and did not purport to cut back on any obligation previously imposed on federal agencies. The Court’s first theory is refuted by the plain language of the 1972 Act, its legislative history, the basic purpose of the Act, and the findings of the District Court. The Court’s second theory, which looks at post-1972 legislative developments, is simply overwhelmed by a series of unambiguous legislative pronouncements that consistently belie the Court’s interpretation of the intent of Congress. H Because there is so much material refuting the Court’s reading of the 1972 Act, an index of what is to follow may be useful. I shall first note that the plain language of § 307(c)(1) draws no distinction between activities that take place outside the coastal zone and those that occur within the zone; it is the effect of the activities rather than their location that is relevant. I shall then review the legislative history which demonstrates that the words “directly affecting” were included in the section to make sure that the statute covered activities occurring outside the coastal zone if they are the functional equivalent of activities occurring within the zone. I shall then identify some of the statutory provisions indicating that Congress intended to require long-range, advance planning. I shall conclude Part I with a description of the findings that bring these cases squarely within the congressional purpose. Plain Language In statutory construction cases, the Court generally begins its analysis by noting that “[t]he starting point in every case involving construction of a statute is the language itself.” E. g., Watt v. Alaska. 451 U. S. 259, 265 (1981). Not much is said, however, about the plain language of § 307(c)(1) in the opinion of the Court, and no wonder. The words “activities directly affecting the coastal zone” make it clear that § 307(c)(1) applies to activities that take place outside the zone itself as well as to activities conducted within the zone. There are federal enclaves inside the boundaries of the coastal zone that, as a matter of statutory definition, are excluded from the zone itself. Moreover, the ocean areas on the OCS that are adjacent to, and seaward of, the coastal zone are subject to the exclusive jurisdiction of the Federal Government. Quite plainly, the federal activities that may directly affect the coastal zone can be conducted in the zone itself, in a federal enclave, or in an adjacent federal area. The plain meaning of the words thus indicates that the words “directly affecting” were intended to enlarge the coverage of § 307(c)(1) to encompass activities conducted outside as well as inside the zone. In light of this language it is hard to see how the Court can hold, as it does, that federal activities in the OCS can never fall within the statute because they are outside the outer boundaries of the coastal zone. Legislative History The plain meaning of the Act is confirmed by its legislative history. Both the House and the Senate versions of the CZMA originally applied only to federal agencies conducting “activities in the coastal zone.” At the same time, Congress clearly recognized that the most fundamental purpose of the CZMA was “to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation’s coastal zone for this and succeeding generations.” 86 Stat. 1281, 16 U. S. C. § 1452(1) (1982 ed.). In writing the versions of the CZMA that went to conference, both Houses stated that their purpose was to prevent adverse effects on the coastal zone. Yet it plainly would have been impossible to achieve this purpose without considering activities outside of the zone which nevertheless could have a devastating impact on it — activities such as those that led to the 1969 Santa Barbara, Cal., oil spill, which occurred in the OCS but which had a devastating impact on the adjacent California coast. When the Conferees adopted the definition of “coastal zone” that excluded federal enclaves, they recognized the need to expand the description of federal activities that should be conducted in a manner that is consistent with an approved state program. The substitution of the words “directly affecting” for the word “in” accomplished this purpose. Thus, if an activity outside the zone has the same kind of effect on the zone as if it had been conducted in the zone, it is covered by § 307(c)(1). The Court’s position seems to be that since neither the Senate nor House versions covered federal activities outside of the coastal zone, the bill that emerged from the Conference Committee could not have either. See ante, at 322-324. To construe the Conference substitute otherwise would be to find a “surprising, unexplained, and subsequently unnoticed expansion in the scope of § 307(c)(1),” ante, at 322. Not only does that construction ignore the “directly affecting” language used by Congress, but it rests on a demonstrably incorrect assumption as to the scope of the earlier versions of the CZMA. The House version of the CZMA clearly recognized that activities outside the coastal zone could have a critical impact upon the coastal zone, and therefore had to be covered by management plans. It defined the coastal zone to extend inland to areas which could have an impact on it, see H. R. 14146, 92d Cong., 2d Sess., §304(a) (1972), reprinted in 118 Cong. Rec. 26501 (1972), in order to enable the CZMA to achieve “its basic underlying purpose, that is the management and the protection of the coastal waters. It would not be possible to accomplish that purpose without to some degree extending the coverage to the shorelands which have an impact on those waters.” H. R. Rep. No. 92-1049, p. 14 (1972). The House bill did not extend the zone seaward because it instead required the Secretary of Commerce to develop a management program for activities on the OCS that was consistent with the management program of the adjacent State. H. R. 14146, 92d Cong., 2d Sess., §313 (1972), reprinted in 118 Cong. Rec. 26503 (1972); H. R. Rep. No. 92-1049, p. 23 (1972). Section 313 was thus specifically premised on the recognition that federal activities in the OCS, particularly the sale of oil and gas leases, could have a direct impact on the coastal zone. The House further recognized the need to regulate federal OCS activities to protect the coastal zone in §312 of its bill, which provided for the expansion of coastal zone marine sanctuaries established by state management plans into the OCS, in order to fully protect the coastal zone. The House showed its concern about the impact of federal activities in the OCS on the coastal zone by rejecting an amendment to § 312 which would have made it permissive rather than mandatory for the Federal Government to establish sanctuaries in areas adjacent to state sanctuaries, and another amendment that would have deleted §312 altogether. See 118 Cong. Rec. 26495-26496 (1972). Thus it is plainly evident that the House did wish to protect the integrity of state coastal zone management with respect to federal activities in the OCS. The Senate shared the House’s concern that state management plans must apply to federal activities in areas adjacent to the coastal zone. The Senate Report on its version of the CZMA stated that its version was derived from a bill it had reported favorably during the previous year, S. 582. In particular, the 1971 Senate version of the CZMA used exactly the same language in framing the consistency obligation as did the 1972 version. The Report on the 1971 bill construed this language to extend the consistency obligation to federal activities in waters outside of the coastal zone which functionally interact with the zone: “[A]ny lands or waters under Federal jurisdiction and control, where the administering Federal agency determines them to have a functional interrelationship from an economic, social, or geographic standpoint with lands and waters within the territorial sea, should be administered consistent with approved State management programs except in cases of overriding national interest as determined by the President.” S. Rep. No. 92-526, p. 20 (1971). Since the 1972 Senate CZMA used identical language to describe the consistency requirement, and nothing in the 1972 Senate Report indicates that this language should be construed differently than the 1971 language, it follows that the 1972 Senate version placed a consistency obligation upon federal activities in the OCS which affect the coastal zone. Thus, the Court is simply wrong to say that both versions of the CZMA sent to conference displayed no interest in regulating federal activities occurring outside of the exterior boundaries of the coastal zone. The Conferees’ adoption of the “directly affecting” language merely clarified the scope of the consistency obligation. The House surrendered the requirements that the Federal Government develop its own management plan for OCS activities and that federal lands within the coastal zone be included in the zone, but in return ensured that any federal activities “directly affecting” the coastal zone would be subject to the consistency requirement of § 307(c)(1). The only explanations of this compromise to be found in the legislative history can be briefly set out. The Conferees wrote: “[A]s to Federal agencies involved in any activities directly affecting the state coastal zone and any Federal participation in development projects in the coastal zone, the Federal agencies must make certain that their activities are to the maximum extent practicable consistent with approved state management programs. In addition, similar consideration of state management programs must be given in the process of issuing Federal licenses or permits for activities affecting State coastal zones. The Conferees also adopted language which would make certain that there is no intent in this legislation to change Federal or state jurisdiction or rights in specified fields, including submerged lands.” H. R. Conf. Rep. No. 92-1544, p. 14 (1972) (emphasis supplied). Senator Hollings, the floor manager of the CZMA, said when he presented the Conference Report to the Senate: “The bill provides States with national policy goals to control those land uses which have a direct and significant impact upon coastal waters.” 118 Cong. Rec. 35459 (1972). That is the entire history of the Conference compromise. There is not the slightest indication that Congress intended to adopt the strange rule which the Court announces today — that OCS leasing cannot be subject to consistency requirements. To the contrary, these statements indicate that any federal activity is covered as long as it directly affects the coastal zone. The Conferees’ reference to federal rights in “submerged lands” further indicates that it recognized that the statute could be applied to the OCS. The inescapable conclusion is that §§ 312 and 313 were deleted precisely because § 307(c)(1) had been strengthened so as to protect the coastal zone from federal OCS activities, which obviated the need for these sections. There is no indication whatsoever that the deletion occurred because Congress rejected any application of state management plans to federal activities in the OCS. In sum, the substitution of the words “directly affecting the coastal zone” for the words “in the coastal zone” plainly effectuated the congressional intent to cover activities outside the zone that are the functional equivalent of activities within the zone, thereby addressing the concern of both Houses that the consistency requirement extend to federal OCS activities. There is simply no evidence that § 307(c)(1) was not intended to reach federal OCS activities which directly affect the coastal zone. Purposes of the CZMA An examination of the underlying purposes of the CZMA confirms that the most obvious reading of § 307(c)(1), which would apply its consistency obligation to federal OCS leasing that directly affects the coastal zone, is fully justified. The congressional findings in § 802 of the CZMA first identify the “national interest in the effective management, beneficial use, protection, and development of the coastal zone,” 86 Stat. 1280,16 U. S. C. § 1451(a) (1982 ed.), and then recite the various conflicting demands on the valuable resources in such zones, including those occasioned by the “extraction of mineral resources and fossil fuels.” Congress found that special natural and scenic characteristics are “being damaged by ill-planned development” and that “present state and local institutional arrangements for planning and regulating land and water uses in such areas are inadequate.” §§ 1451(g) and (h). Finally, Congress found that the effective protection of resources in the coastal zone required the development of “land and water use programs for the coastal zone, including unified policies, criteria, standards, methods, and processes for dealing with land and water use decisions of more than local significance.” § 1451(i). The declaration of national policy in §303 of the 1972 CZMA unambiguously exhorted “all Federal agencies engaged in programs affecting the coastal zone to cooperate and participate with state and local governments and regional agencies in effectuating the purposes of this title.” 86 Stat. 1281. The policy declaration concluded: “With respect to implementation of such management programs, it is the national policy to encourage cooperation among the various state and regional agencies including establishment of interstate and regional agreements, cooperative procedures, and joint action particularly regarding environmental problems.” Ibid. These provisions surely indicate a congressional preference for long-range planning and for close cooperation between federal and state agencies in conducting or supporting activities that directly affect the coastal zone. Statutes should be construed in a manner consistent with their underlying policies and purposes. E. g., FBI v. Abramson, 456 U. S. 615, 625, and n. 7 (1982); Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 18-19 (1981); Philbrook v. Glodgett, 421 U. S. 707, 713 (1975). By applying the consistency obligation to the first critical step in OCS development, the decision to lease, the statute is construed in a manner consistent with its underlying purpose. The majority’s construction of § 307(c)(1) is squarely at odds with this purpose. Orderly, long-range, cooperative planning dictates that the consistency requirement must apply to OCS leasing decisions. The sale of OCS leases involves the expenditure of millions of dollars. If exploration and development of the leased tracts cannot be squared with the requirements of the CZMA, it would be in everyone’s interest to determine that as early as possible. On the other hand, if exploration and development of the tracts would be consistent with the state management plan, a preleasing consistency determination would provide assurances to prospective purchasers and hence enhance the value of the tracts to the Federal Government and, concomitantly, the public. Advance planning can only minimize the risk of either loss or inconsistency that may ultimately confront all interested parties. It is directly contrary to the legislative scheme not to make a consistency determination at the earliest possible point. It is especially incongruous since the Court agrees that all federal activity “in” the coastal zone is subject to consistency review. If activity in the OCS directly affects the zone — if it is in fact the functional equivalent of activity “in” the zone — it is inconceivable that Congress would have wanted it to be treated any differently. The only federal activity that ever occurs with respect to OCS oil and gas development is the decision to lease; all other activities in the process are conducted by lessees and not the Federal Government. If the leasing decision is not subject to consistency requirements, then the intent of Congress to apply consistency review to federal OCS activities would be defeated and this part of the statute rendered nugatory. Such a construction must be rejected. See American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490, 513 (1981); Mercantile Nat. Bank v. Langdeau, 371 U. S. 555, 560 (1963); United States v. Shirey, 359 U. S. 255, 259-260 (1959); United States v. Harriss, 347 U. S. 612, 622-623 (1954); Sunshine Coal Co. v. Adkins, 310 U. S. 381, 392 (1940). The Direct Effects The lease sales at issue in these cases are in fact the functional equivalent of an activity conducted in the zone. There is no dispute about the fact that the Secretary’s selection of lease tracts and lease terms constituted decisions of major importance to the coastal zone. The District Court described some of the effects of those decisions: “For example, a reading of the notice itself reveals some of the many consequences of leasing upon the coastal zone. The ‘Notice of Oil and Gas Lease Sale No. 53 (Partial Offering)’, as published in the Federal Register, announced ten stipulations to be applied to federal lessees. The activities permitted and/or required by the stipulations result in direct effects upon the coastal zone. Stipulation No. 4 sets forth the conditions for operation of boats and aircraft by lessees. Stipulation No. 6 states the conditions under which pipelines will be required; the Department of Interior, as lessor, specifically reserves the right to regulate the placement of ‘any pipeline used for transporting production to shore’. Lessees must agree, pursuant to stipulation No. 1, to preserve and protect biological resources discovered during the conduct of operations in the area. “The Secretarial Issue Document (‘SID’), prepared in October 1980 by the Department of Interior to aid the Secretary in his decision, contains voluminous information indicative of the direct effects of this project on the coastal zone. For instance, the SID contains a table showing the overall probability of an oilspill impacting a point within the sea otter range during the life of the project in the northern portion of the Santa Maria Basin to be 52%. Both the SID and the EIS [Environmental Impact Statement] contain statistics showing the likelihood of oilspills during the life of the leases; based on the unrevised USGS estimates, 1.65 spills are expected during the project conducted in the Santa Maria subarea. According to the SID, the probability of an oilspill is even higher when the revised USGS figures are utilized. . . Both documents refer to impacts upon air and water quality, marine and coastal ecosystems, commercial fisheries, recreation and sportfishing, navigation, cultural resources, and socio-economic factors. For instance, the EIS states that ‘[njormal offshore operations would have unavoidable effects ... on the quality of the surrounding water’. Pipelaying, drilling, and construction, chronic spills from platforms, and the discharge of treated sewage contribute to the degradation of water quality in the area. As to commercial fisheries, drilling muds and cuttings ‘could significantly affect fish and invertebrate populations’; the spot prawn fishery in the Santa Maria Basin is particularly vulnerable to this physical disruption. In reference to recreation and sport-fishing, the EIS indicates the possibility of adverse impacts as a result of the competition for land between recreation and OCS-related onshore facilities as a result of the temporary disruption of recreation areas caused by pipeline burial. There are the additional risks of ‘the degradation of the aesthetic environment conducive to recreation and the damage to recreational sites as a result of an oil spill’. Another impact on the coastal zone will occur as a result of the migration of labor into the area during the early years of oil and gas operations. Impacts on the level of employment and the size of the population in the coastal region are also predicted. “The SID notes that there are artifacts of historic interest as well as aboriginal archaeological sites reported in the area of the Santa Maria tracts. The FWS and NMFS biological opinions, appended to the SID, indicate the likelihood that development and production activities may jeopardize the existence of the southern sea otter and the gray whale. “These effects constitute only a partial list. Further enumeration is unnecessary. The threshold test under § 307(c)(1) would in fact be satisfied by a finding of a single direct effect upon the coastal zone. Although the evidence of direct effects is substantial, such a showing is not required by the CZMA.” 520 F. Supp. 1359,1380-1382 (CD Cal. 1981) (footnotes and citations omitted). The Court of Appeals predicated its conclusion that the lease sale in these cases directly affects the coastal zone on these findings. It wrote: “We agree that the lease sale in this case directly affects the coastal zone. These direct effects of Lease Sale 53 on California’s coastal zone are detailed by the district court. We need not repeat them here. It is enough to point out that decisions made at the lease sale stage in this case establish the basic scope and charter for subsequent development and production. Prior to the sale of leases, critical decisions are made as to the size and location of the tracts, the timing of the sale, and the stipulations to which the leases would be subject. These choices determine, or at least influence, whether oil will be transported by pipeline or ship, which areas of the coastal zone will be exposed to danger, the flow of vessel traffic, and the siting of on-shore construction. “Under these circumstances Lease Sale 53 established the first link in a chain of events which could lead to production and development of oil and gas on the individual tracts leased. This is a particularly significant link because at this stage all the tracts can be considered together, taking into account the cumulative effects of the entire lease sale, whereas at the later stages consistency determinations would be made on a tract-by-tract basis under section 307(c)(3).” 683 F. 2d 1253, 1260 (CA9 1982) (citations omitted). Neither petitioners nor the Court challenges these findings, which clearly state that the oil and gas lease sale at issue here will directly affect the coastal zone. Oil and gas exploration and development are the expected and desired results of the leasing decision which respondents seek to have reviewed under § 307(c)(1), and their impact on the coastal zone will be undeniably significant. Moreover, the findings indicate some of those impacts will occur almost immediately, prior to review under the Outer Continental Shelf Lands Act (OCSLA), and can never be reviewed adequately if they are not reviewed now. In my judgment these rather sensible appraisals of the probable consequences of the lease sale are entirely consistent with the congressional intent reflected in § 307(c)(1). It cannot be denied that in reality OCS oil and gas leasing “directly” looks toward development of the OCS, and the consequences for the coastal zone that the District Court found development would entail. Development is the expected consequence of leasing; if it were not, purchasers would never commit millions of dollars to the acquisition of leases. Congress views leasing in exactly this way; it has defined the lease acquired by purchasers as a “form of authorization . . . which authorizes exploration for, and development and production of, minerals . . . .” 92 Stat. 632, 43 U. S. C. § 1331(c) (1976 ed., Supp. V). As the Court of Appeals observed, leasing sets into motion a chain of events designed and intended to lead to exploration and development. When the intended and most probable consequence of a federal activity is oil and gas production that will dramatically affect the adjacent coastal zone, that activity is one “directly affecting” the coastal zone within the meaning of § 307(c)(1). I-H I — I The Court’s holding rests, m part, on selections from legislative developments subsequent to the enactment of the CZMA in 1972. In my view the 1978 amendment to the OCSLA on which the Court relies lends no support to its reading of § 307(e)(1) of the CZMA. On the contrary, a fair review of the post-1972 history reveals such a dramatically different congressional understanding of the meaning of its own work product that it merits a rather detailed treatment. I shall comment on this history in chronological order. The 1976 Amendment to CZMA The CZMA was amended in 1976. One of the primary purposes for this legislation was the recognition that OCS leasing has a dramatic impact on the coastal zone. The 1976 legislation created a program of federal financial aid to coastal areas in order to help them deal with the impact of OCS leasing. The amount of money each State received was keyed to the amount of adjacent OCS acreage that had been leased by the Federal Government. 90 Stat. 1019-1028, 16 U. S. C. § 1456a (1982 ed.). This provision was added precisely because Congress recognized that OCS leasing could dramatically affect the adjacent coastal zone, not only environmentally but socially and economically. See S. Rep. No. 94-277, pp. 10-19 (1975); H. R. Rep. No. 94-878, pp. 13, 15-17 (1976);121 Cong. Rec. 23055-23056 (1975) (remarks of Sen. Stevens); id., at 23060 (remarks of Sen. Jackson); id., at 23065 (remarks of Sen. Magnuson); 122 Cong. Rec. 6111-6112 (1976) (remarks of Rep. Sullivan); id., at 6112 (remarks of Rep. Du Pont); id., at 6113 (remarks of Rep. Mosher); id., at 6114 (remarks of Rep. Murphy); id., at 6117 (remarks of Rep. Young); id., at 6119 (remarks of Rep. Lago-marsino); id., at 6120 (remarks of Rep. Hughes); id., at 6121-6122 (remarks of Rep. Drinan). This congressional recognition completely undermines the Court’s position that OCS oil and gas leasing can never directly affect the coastal zone. Both the Senate and House versions of the 1976 amendments reported out of committee explicitly applied the consistency requirement of § 307 to OCS oil and gas leasing. See S. 586, 94th Cong., 1st Sess., §102(12) (1975), reprinted in S. Rep. No. 94-277, p. 59 (1975); H. R. 3981, 94th Cong., 2d Sess., §2(15) (1976), reprinted in H. R. Rep. No. 94-878, p. 4 (1976). The significant point here is that at every opportunity, Congress indicated that all it was doing by these provisions was restating what had been its original intent in the 1972 CZMA. For example, the Senate Report stated: “Section 307 is the portion of the Act which has come to be known as the ‘Federal consistency’ section. It assures that once State coastal zone management programs are approved and a rational management system for protecting, preserving, and developing the State’s coastal zone is in place (approved), the Federal departments, agencies, and instrumentalities will not violate such system but will, instead, conduct themselves in a manner consistent with the States’ approved management program. This includes conducting or supporting activities in or out of the coastal zone which affect that area. ... As energy facilities have been focused upon more closely recently, the provisions of section 307 for the consistency of Federal actions with the State coastal zone management programs has [sic] provided assurance to those concerned with the coastal zone that the law already provides an effective mechanism for guaranteeing that Federal activities, including those supported by, and those carried on pursuant to, Federal authority (license, lease, or permit) will accord with a rational management plan for protection, preservation and development of the coastal zone. One of the specific federally related energy problem areas for the coastal zone is, of course, the potential effects of Federal activities on the Outer Continental Shelf beyond the State’s coastal zones, including Federal authorizations for non-Federal activity, but under the act as it presently exists, as well as the S. 586 amendments, if the activity may affect the State coastal zone and it has an approved management program, the consistency requirements do apply.” S. Rep. No. 94-277, supra, at 36-37 (emphasis supplied). Similarly, the House Report states: “Specifically what the section does is add the word ‘lease’ to ‘licenses and permits’ in section 307(c)(3). This clarifies the scope of the coverage of those federal actions which must be certified as complying with a state’s approved coastal management program. The Committee felt, because of the intense interest in the matter on the part of a number of states, it would make explicit its view that federal leasing is an activity already covered by section 307 of the Act. “To argue otherwise would be to maintain that a federal permit for a wastewater discharge, for example, must be certified by the applicant to be in compliance with a state program, the state being given an opportunity to approve or disapprove of the proposal, while a federal lease for an Outer Continental Shelf tract does not have to so certify. Given the obvious impacts on coastal lands and waters which will result from the federal action to permit exploration and development of offshore petroleum resources, it is difficult to imagine that the original intent of the Act was not to include such a major federal coastal action within the coverage of federal consistency.’” H. R. Rep. No. 94-878, supra, at 52 (emphasis supplied). Along the same lines, the Report also stated that “the Committee wants to assure coastal states in frontier areas that the OCS leasing process is indeed a federal action that un~ doubtedly has the potential for affecting a state’s coastal zone and, hence, must conform with approved state coastal management programs.” Id., at 37. Statements to similar effect were made by sponsors of the legislation on the floors of both Houses. Though the explicit reference to OCS leasing was deleted by the Conferees, their Report indicates that the reason for the deletion was not disagreement with the concept of applying § 307 to OCS leasing, but rather to supplement that requirement by applying consistency to other stages in the process as well. The subsequent debates on the Conference Report evince no retreat from the position that OCS leasing should be consistent with state management programs. In light of the widespread agreement by Congress in 1976 that OCS leasing was already subject to consistency review under the 1972 CZMA, the logical explanation for the Conferees’ action is simply that they saw no need to amend the CZMA since everyone agreed that it already applied to OCS oil and gas leasing. The only need was to further extend consistency review to subsequent stages in the process. This view is explicitly supported by the House’s consideration of the amendments, where it was made clear that Congress believed that OCS leasing was subject to consistency requirements. Representative Hughes said: “I am disappointed, however, that the amendment offered by Mr. DU Pont to delete the provision requiring that Federal offshore leasing be consistent with State coastal zone management plans has been agreed to. I nevertheless rely upon the record established during today’s debate to show that it is the intent of this legislation that offshore leasing not be in conflict with State management plans.” 122 Cong. Rec. 6120 (1976) (emphasis supplied). The failure of the Conferees to include the proposed language in the CZMA is all the more illuminating in light of the fact that the proposal before the Conferees was to amend § 307(c)(3), which details the consistency obligations of private lessees. This proposal was entirely irrelevant to the obligations of the Secretary of the Interior since that subsection does not apply to the Secretary. Thus, the Conferees simply saw no reason to add language covering OCS leasing to subsection (c)(3) when there was agreement that it was already covered by (c)(1). In any event, whatever the explanation for the Conferees’ failure to amend § 307(c)(3), the legislative history contains no ambiguities on one point— everyone to address the issue agreed that § 307(c)(1) already applied to federal OCS oil and gas leasing decisions. This is not merely “postenactment” legislative history, for this was a central premise on which Congress legislated when it decided that § 307 need be extended only to subsequent stages in the process of oil and gas development. The 1978 Amendments to OCSLA In 1978, Congress passed the Outer Continental Shelf Lands Act Amendments, 92 Stat. 629. The majority relies on these Amendments, concluding that since they require federal approval prior to exploration or development by OCS lessees, they make it clear that mere OCS leasing cannot invoke the consistency requirement of § 307(c)(1) of the CZMA. Ante, at 337-340. After all, as the Court recites, these leases are subject to cancellation and most of the specific activities contemplated by the leases must be approved before they take place. At most, however, this simply raises a factual question that the District Court has answered in these cases — does the necessity for approval of exploration and development under OCSLA mean that the leasing decision does not “directly affect” the coastal zone because of the contingent nature of the leasing? Posing that question in no sense obviates the need for the factual analysis demanded by § 307(c)(1). The question whether the leasing decision “directly affects” the coastal zone must still be confronted. This is made clear by the text of the OCSLA Amendments, which explicitly preserves the pre-existing provisions of the CZMA. “Except as otherwise expressly provided in this Act, nothing in this Act shall be contraed to amend, modify, or repeal any provision of the Coastal Zone Management Act of 1972 _” 92 Stat. 698, 43 U. S. C. § 1866(a) (1976 ed., Supp. V). Moreover, the legislative history of this provision indicates that it was intended to require consistency review of federal OCS leasing activity. In the only discussion of this question during the entire consideration of the OCSL A Amendments, the House Report made it clear that the consistency obligation of the CZMA would continue to apply to OCS leasing decisions. “The committee is aware that under the Coastal Zone Management Act of 1972, as amended in 1976 (16 U. S. C. 1451 et seq.), certain OCS activities including lease sales and approval of development and production plans must comply with ‘consistency’ requirements as to coastal zone management plans approved by the Secretary of Commerce. Except for specific changes made by Titles IV and V of the 1977 Amendments, nothing in this act is intended to amend, modify, or repeal any provision of the Coastal Zone Management Act. Specifically, nothing is intended to alter procedures under that Act for consistency once a State has an approved Coastal Zone Management Plan.” H. R. Rep. No. 95-590, p. 153, n. 52 (1977) (emphasis supplied). One could not ask for a more explicit indication of legislative intent. The Court can find no indication of any intent to the contrary. Thus, the premise of the 1978 legislation, like the 1976 amendment to the CZMA, was that consistency review would be applied to OCS leasing. Even more important is § 18 of the OCSLA, 92 Stat. 649, 43 U. S. C. §1344 (1976 ed., Supp. V), which governs the OCS leasing program. Subsection (f) provides, in pertinent part: “The Secretary shall, by regulation, establish procedures for . . . consideration of the coastal zone management program being developed or administered by an affected coastal State pursuant to Section 1454 or 1455 of title 16 [the CZMA].” This provision was added “for coordination of the [leasing] program with management programs and consistency requirements established pursuant to the Coastal Zone Management Act of 1972.” H. R. Rep. No. 95-590, supra, at 151; S. Rep. No. 95-284, p. 77 (1977). Section 18 of the OCSLA makes it clear, if it were not previously, that state coastal management plans must be considered by the Secretary at the OCS leasing stage. Thus, both the saving clause and § 18(f) establish that Congress intended that consistency determination under the CZMA be made for OCS leasing decisions when it enacted the 1978 OCSLA Amendments. In any event, the fact that additional licensing is required under the OCSLA scheme for exploration and development hardly makes those steps “indirect” consequences of leasing in the sense that any effect on the coastal zone is the result of intervening causes, which is the definition of “indirect” urged by petitioners. Approval for exploration and development by the lessee is obviously the expected and intended result of leasing; if it were not, the Secretary would not bother to lease and the lessees would not bother to bid. Subsequent exploration and development is hardly an intervening cause; it is the natural and expected consequence of the original lease, and hence the “direct” effect of leasing. It would be disapproval of exploration and development that would constitute an intervening cause, not the expected approval. The 1980 Amendment to CZMA In 1980, the CZMA was reauthorized and again amended. 94 Stat. 2060. In the course of considering the statute, Congress once again addressed the precise problem we are faced with today. Once again its answer was the same — OCS oil and gas leasing is subject to the consistency obligation of § 307(c)(1) of the CZMA. The House Report, for example, observed that the 1976 amendments had not altered this obligation. “The change did not alter Federal agency responsibility to provide States with a consistency determination related to OCS decisions which preceded issuance of leases.” H. R. Rep. No. 96-1012, p. 28 (1980). The Report then went on to consider whether § 307 needed to be amended, and declined to do so only after determining that it clearly applied to OCS leasing. “Finally, the committee has not recommended any changes in the Federal consistency provision, section 307 of the existing act. During its oversight phase, the committee heard much testimony on these provisions. However, the consensus of witnesses advocated no change. .. . “. . . Generally all consistency provisions have been properly construed. The only uncertainty that has arisen concerns the interpretation of section 307(c)(1), the threshold test of 'directly affecting’ the coastal zone. The committee points out that in the preamble to NOAA’s Federal consistency regulations, this threshold test was considered during earlier congressional deliberations and was determined to apply whenever a Federal activity had a functional interrelationship from an economic, geographic or social standpoint with a State coastal program’s land or water use policies. Under such circumstances, a State has a legitimate interest in reviewing a proposed Federal activity since the management program’s policies are likely to apply to the activity. Thus, when a Federal Agency initiates a series of events of coastal management consequence, the intergovernmental coordination provisions of the Federal consistency requirements should apply.” Id., at 34. Similarly, the Senate Report described the 1976 amendments as having maintained the consistency obligation for OCS leasing: “The Department of Interior’s activities which preceded OCS lease sales were to remain subject to the requirements of section 307(c)(1) [under the 1976 CZMA]. As a result, intergovernmental coordination for purposes of OCS development commences at the earliest practicable time in the opinion of the Committee, as the Department of the Interior sets in motion a series of events which have consequences in the coastal zone. Coordination must continue during the critical exploration, development, and production stages. “The Committee see[s] no justification to depart from this point of view. The Committee hopes that through the rulemaking, future areas of disagreement over the application of Federal consistency will be substantially reduced, especially given the excellent record of application shown by the coastal States.” S. Rep. No. 96-783, p. 11 (1980). Thus, the 1980 legislative history indicates that when Congress reauthorized the CZMA it intended § 307(c)(1) to be applied to OCS leasing decisions. Congress unmistakably rejected the position embraced by the majority today. Postscript in 1981 After the new administration took office in 1981, the Secretary of Commerce proposed a CZMA regulation which would have removed OCS leasing decisions from the scope of consistency review. The House Committee on Merchant Marine and Fisheries promptly considered whether to exercise a legislative veto over the regulations and overwhelmingly voted to veto the regulations. H. R. Rep. No. 97-269, pp. 7-8 (1981). The regulations were later -withdrawn, in an apparent administrative concession of error. 47 Fed. Reg. 4231 (1982). Apparently this is the last of a long series of congressional actions indicating that body’s intent that OCS leasing be subject to consistency review under § 307(c)(1) of the CZMA. In sum, the intent of Congress expressed in the plain language of the statute and in its long legislative history unambiguously requires consistency review if an OCS lease sale directly affects the coastal zone. The affirmative findings of fact made by the lower courts on that score are amply supported and are not disturbed by the Court today. I therefore respectfully dissent. Section 304(a) defines the coastal zone as follows: “(a) The term ‘coastal zone’ means the coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and thereunder), strongly influenced by each other and in proximity to the shorelines of the several coastal states, and includes islands, transitional and intertidal areas, salt marshes, wetlands, and beaches. The zone extends, in Great Lakes waters, to the international boundary between the United States and Canada and, in other areas, seaward to the outer limit of the United States territorial sea. The zone extends inland from the shorelines only to the extent necessary to control shorelands, the uses of which have a direct and significant impact on the coastal waters. Excluded from the coastal zone are lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers or agents.” 86 Stat. 1281, as amended, 16 U. S. C. § 1453(1) (1982 ed.). See United States v. Maine, 420 U. S. 515 (1975); 43 U. S. C. §§1302, 1332(1) (1976 ed. and Supp. V). See H. R. 14146, 92d Cong., 2d Sess., §307(c)(1) (1972), reprinted in 118 Cong. Rec. 26502 (1972) (“Each Federal agency conducting or supporting activities in the coastal zone shall conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs”); S. 3507, 92d Cong., 2d Sess., § 314(b)(1) (1972), reprinted in 118 Cong. Rec. 14190 (1972) (“All Federal agencies conducting or supporting activities in the coastal zone shall administer their programs consistent with approved State management programs except in cases of overriding national interest as determined by the President”). The Senate’s version stated that the purpose of a state coastal zone management plan must be “to minimize direct, significant, and adverse impact on the coastal waters . . . .” S. 3507, 92d Cong., 2d Sess., § 304(g) (1972), reprinted in 118 Cong. Rec. 14188 (1972). Plans were required to state “what shall constitute permissible land and water uses within the coastal zone so as to prevent such uses which have a direct, significant, and adverse impact on the coastal waters . . . .” § 305(b)(2), reprinted in 118 Cong. Rec. 14188 (1972). The House bill contained similar language, see H. R. 14146, 92d Cong., 2d Sess., §305(b) (1972), reprinted in 118 Cong. Rec. 26501 (1972). See also S. Rep. No. 92-753, p. 10 (1972). The Santa Barbara incident was referred to on several occasions during the consideration of the CZMA. See 118 Cong. Rec. 14180 (1972) (remarks of Sen. Boggs); id., at 26484 (remarks of Rep. Anderson); id., at 26495 (same); ibid, (remarks of Rep. Teague); id., at 35550 (remarks of Rep. Anderson). The Court seems to read this history as indicating that only federal activities in the coastal zone or on federal enclaves may directly affect the zone. See ante, at 323-324. If that were a correct reading, § 307(c)(1) would have no application at all in the ocean area adjacent to the coastal zone. None of the litigants has advanced such an improbable construction of “directly affecting.” It is perfectly obvious that when Congress adopted language that excluded federal enclaves from the zone, it realized that activities which are conducted outside the zone itself can have the same kind of effect within the zone as an activity conducted in the zone. An oil well adjacent to the zone will affect the zone in precisely the same way whether it is in a federal enclave or in federal water just outside the zone. The House version provided that the Secretary’s management program “shall be coordinated with the [adjacent] coastal state involved.” H. R. 14146, 92d Cong., 2d Sess., § 313(b) (1972), reprinted in 118 Cong. Rec 26503 (1972). It further provided: “The Secretary shall, to the maximum extent practicable, apply the program developed pursuant to this section to waters which are adjacent to specific areas in the coastal zone which have been designated by the states for the purpose of preserving or restoring such areas for their conservation, recreational, ecological, or esthetic values.” § 313(e), reprinted in 118 Cong. Rec. 26503 (1972). “Mr. Chairman, of particular interest to me is a subsection, which I authored, designed to protect State-established coastal sanctuaries, such as exists off California, from federally authorized development. “The State of California in 1955 created five marine sanctuaries to protect the beaches from oil spills. In 1963, two more sanctuaries were created. “These State-established sanctuaries, which extend from the coastline seaward to 3 miles, account for nearly a fourth of the entire California coast. “However, the Federal Government has jurisdiction outside the State area, from 3 miles to 12 miles at sea. All too often, the Federal Government has allowed development and drilling to the detriment of the State program. “A case in point is Santa Barbara where California established a marine sanctuary banning the drilling of oil in the area under State authority. “Yet outside the sanctuary — in the federally controlled area — the Federal Government authorized drilling which resulted in the January 1969 blowout. This dramatically illustrated the point that oil spills do not respect legal jurisdictional lines. “In order to protect the desires of the citizens of the coastal States who wish to establish marine sanctuaries, I offered a provision which 'requires that the Secretary of Commerce shall, to the maximum extent practicable, apply the coastal zone program to waters immediately adjacent to the coastal waters of a State, which the State has designated for specific preservation purposes.’ The Merchant Marine and Fisheries Committee approved this provision.” Id., at 26484 (remarks of Rep. Anderson). “When an estuarine sanctuary is established by a coastal state . . . whether or not Federal funds have been made available for a part of the costs of acquisition, development, and operation, the Secretary, at the request of the state concerned, and after consultation with interested Federal departments and agencies and other interested parties, may extend the established estuarine sanctuary seaward beyond the coastal zone, to the extent necessary to effectuate the purposes for which the estuarine sanctuary was established.” H. R. 14146, 92d Cong., 2d Sess., § 312(b) (1972), reprinted in 118 Cong. Rec. 26503 (1972). “During the first session of the 92d Congress, the Subcommittee on Oceans and Atmosphere, formerly the Subcommittee on Oceanography, held an additional three days of hearings during May 1971. Fifteen witnesses were heard and 39 new letters, articles and publications were received for the record, which was published by the Committee as Serial No. 92-15. “In the ensuing period, S. 582 was redrafted by the Subcommittee, incorporating additional ideas from S. 638 and S. 992, which the Subcommittee felt strengthened the bill. The Subcommittee also drew substantially upon ideas propounded by the Council on Environmental Quality, whose assistance was invaluable. The Subcommittee reported the bill favorably to the Committee on Commerce on August 4, 1971, and on September 30, 1971 the Committee ordered the bill reported favorably with amendments. “On March 14, 1972, at the request of Senator Hollings, S. 582 wad recommitted to the Committee. Changes were made in the bill so as to clear up conflicting matters of jurisdiction, to place limitations on the coastal zone, and to broaden the participation of local governments, interstate agencies and areawide agencies in the preparation and operation of management programs. Additional changes were made to make the bill compatible with proposed land use policy legislation as proposed by the Administration. (See S. 992) Then, on Tuesday, April 11,1972, the Committee ordered S. 3507 be reported favorably as an original bill.” S. Rep. No. 92-753, p. 7 (1972). The 1971 bill stated: “All Federal agencies conducting or supporting activities in the coastal and estuarine zone shall administer their programs consistent with approved State management programs except in cases of overriding national interest as determined by the President.” S. 582, 92d Cong., 1st Sess., §313(b)(1) (1971), reprinted in S. Rep. No. 92-526, p. 7 (1971). The 1972 version is identical, except that what the 1971 version called the “coastal and estuarine zone” the 1972 version shortened to the “coastal zone.” The Report repeated itself, apparently for emphasis: “As noted previously, it is intended that any lands or waters under Federal jurisdiction and control, within or adjacent to the coastal and estuarine zone, where the administering Federal agency determines them to have a functional interrelationship from an economic, social, or geographic standpoint with lands and waters within the coastal and estuarine zone, should be administered consistent with approved State management programs.” Id., at 30. There is not a word in the Conference Report on the CZMA indicating that the Conferees rejected the concept that the coastal zone be protected from federal OCS activities through consistency review. The Court relies on Representative Anderson’s statement concerning the Conference Report, ante, at 328, but in fact he spoke only with reference to the “provision [that] would have required the Secretary to apply the coastal zone program to waters immediately adjacent to the coastal waters of a State, which that State has designated for specific preservation purposes.” 118 Cong. Rec. 35549-35550 (1972). His remarks did not concern the scope of § 307(c)(1). Moreover, with respect to § 313 the Conferees indicated that it was deleted only because “the provisions relating thereto did not prescribe sufficient standards or criteria [for coastal management] and would create potential conflicts with legislation already in existence concerning Continental Shelf resources.” H. R. Conf. Rep. No. 92-1544, p. 15 (1972). As for §312, the objection to it was not that it applied state management plans to the OCS; in fact it did not. The objections were of a much different nature— concern that § 312 might automatically foreclose OCS development without judicial or administrative review, see 118 Cong. Rec. 26495 (1972) (remarks of Rep. Clark), and that it duplicated existing programs which already achieved the same purpose. Id., at 26495-26496 (remarks of Rep. Kyi). All the Conferees said about their reasons for rejecting § 312 was: “[T]he need for such provisions appears to be rather remote and could cause problems since they would extend beyond the territorial limits of the United States.” H. R. Conf. Rep. No. 92-1544, pp. 14-15 (1972). The Court also relies on the Senate’s rejection of an amendment which would have required the Federal Government to submit leasing proposals to affected States for approval, and the Conferees’ rejection of a provision of the Senate version of the CZMA providing for a study of the environmental hazards attendant to drilling in the Atlantic OCS. Ante, at 329-330, n. 14. As for the Senate amendment, the objection to it had nothing to do with whether consistency obligations applied to federal OCS activity. The objections centered around the veto it gave to the States. Senator Hol-lings said: “This amendment provides the Governor would have a veto over such matters. I do not think the Senate wants to go that far. The amendment comes without public hearing and full consideration, which we have not had the benefit of.” 118 Cong. Rec. 14184 (1972). Then, Senator Moss pointed out that a study of this problem was then underway in the Committee on Interior and Insular Affairs. Ibid. It was for that reason, and that reason alone, that the sponsor of the amendment voluntarily withdrew it: “I am happy that these hearings and studies are continuing. I believe and hope they will shed full light on this important subject so that the Senate can give the fullest consideration in light of these hearings and further studies. Mr. President, with the chairman’s permission, I ask unanimous consent to withdraw the amendment.” Ibid, (remarks of Sen. Boggs). As for the study in the Senate version, S. 3507, 92d Cong., 2d Sess., § 316(c)(1) (1972), reprinted in 118 Cong. Rec. 14191 (1972), it was deleted in conference for no other reason than that it was nongermane. Id., at 35547 (remarks of Rep. Downing). Moreover, the Court misstates the objections to this provision. Senators Stevens and Moss objected only because they thought the study should also produce recommendations as to how to eliminate the environmental hazards posed by OCS drilling. See id., at 14180 (remarks of Sen. Stevens). The sponsor, Senator Pell, offered an amendment providing for such recommendations, and then both Senators withdrew their objections to the study. See id., at 14181 (remarks of Sen. Stevens); id., at 14181-14182 (remarks of Sen. Moss). Construing the CZMA to begin federal-state cooperation at the OCS leasing stage enhances such long-range planning and maximizes cooperation. Indeed, the 1980 House Report on the CZMA stated that Congress intended consistency review to apply at the OCS leasing stage for precisely this reason: “The benefits of this [construction] are significant. First, it fosters consultation between Federal and State agencies at the earliest practicable time. This, in turn, enhances the ability of the States to plan for and manage the coastal zone effects which are directly linked to Federal commitment of resources for Federal activities likely to lead to results inconsistent with the requirements of approved State programs. “Secondly, broad opportunities for States to influence Federal activities enhances the incentive of the consistency provisions, thereby reinforcing voluntary State participation in the national program. Finally, an expansive interpretation of the threshold test is compatible with the amendment to section 303 calling for Federal agencies and others to participate and cooperate in carrying out the purposes of the act.” H. R. Rep. No. 96-1012, pp. 34-35 (1980). In the lease sale at issue in this case, $220 million was bid on the disputed tracts. Petitioners complain that at the leasing stage there may be inadequate information on which to base a consistency determination. The applicable regulations dispose of this objection. While they require a consistency determination at the earliest possible time, the determination need not be made until sufficient information is developed to make a consistency determination practicable. See 15 CFR § 930.34(b) (1983). The regulations also permit consistency determinations to be made in phases as new information develops. See § 930.37(c). In this connection the arrangement of the four subparagraphs of § 307 is instructive. That section obligates four categories of parties to conform their activities, to the maximum extent practicable, with approved state management programs. The four categories are (1) federal agencies conducting or supporting activities directly affecting the coastal zone; (2) federal agencies undertaking development projects in the coastal zone; (3) private parties who apply for a license or permit to conduct activities in the coastal zone; and (4) state and local governments submitting applications for federal assistance under programs affecting the coastal zone. Neither subparagraph (2) nor (4) has any application to the case before us. It is subparagraph (3), that requires private parties to comply with state programs. Unless subparagraph (1) applies to the Secretary of the Interior, Congress simply omitted entirely the federal activity of selecting the tracts that will be leased from the conformity requirement. If lessees must ultimately conform their activities, to the maximum extent practicable, with the approved state programs, it is difficult to understand why Congress would not have wanted the original planning that preceded the lease sales also to be consistent with the approved program. My view, unlike the Court’s, is consistent with that of the agency charged by Congress with administering the CZMA, the National Oceanic and Atmospheric Administration (NOAA). While the majority correctly points out that NOAA has waffled on the specific issue of whether there should be a special rule for OCS oil and gas leasing, ante, at 320-321, n. 6, it has consistently rejected the majority’s position that federal activities in the OCS need not be evaluated to see if they directly affect the coastal zone. To the contrary; NOAA has agreed with the position formerly taken by the Department of Justice (which itself later waffled on this issue, see n. 35, infra), that the question whether OCS leasing activity is subject to consistency review is one of fact to be decided on a ease-by-case basis. See 44 Fed. Reg. 37142 (1979). The NOAA regulation on this subject (which remains in effect) states: “Federal activities outside of the coastal zone (e. g., on excluded Federal lands, on the Outer Continental Shelf, or landward of the coastal zone) are subject to Federal agency review to determine whether they directly affect the coastal zone.” 15 CFR § 930.33(c) (1983). NOAA also urged federal agencies “to construe liberally the ‘directly affecting’ test in borderline cases so as to favor inclusion of Federal activities subject to consistency review.” 44 Fed. Reg. 37146-37147 (1979). The California Coastal Commission, the state agency responsible for the administration of the state management plan, made this same point in objecting to the lease sale at issue here. “The Commission’s objections to Lease Sale 53 cannot be resolved later at the plan of exploration stage because they involve such major concerns as the lack of onshore facilities, land, and population that can accommodate oil development.” App. 118. The Commission believed that inclusion of four specific areas in the sale is inconsistent with its management plan because (1) it leases tracts that are close to areas considered marine sanctuaries or marine resource areas which must be protected from development under the state plan, (2) it will require transportation of oil through the range of the endangered sea otter, which is an environmentally sensitive area that must be protected from such transportation under the state plan, (3) it would affect the scenic and visual qualities of protected recreational areas, (4) it will require the construction of facilities that are not sufficiently justified in terms of the “public welfare” as defined by the plan, and (5) there was not sufficient planning for future demands on coastal resources as required by the state plan. Id., at 120-132. The area of dispute involves 29 of 111 tracts proposed for leasing containing about 8 percent of the oil reserves projected from the sale area. Id., at 148. Prior to this sale, the Commission had concurred in 26 out of 27 OCS lease sales proposed by the Department of the Interior. Id., at 117-120. 154. In fact, the House Report contains an attachment which details at some length the impacts of OCS oil and gas leasing on the coastal zone. See H. R. Rep. No. 94-878, pp. 119-126 (1976). For additional statements demonstrating the effects of leasing decisions on the coastal zone, see Congressional Research Service, Effects of Offshore Oil and Natural Gas Development on the Coastal Zone, A Study Prepared for the Ad Hoc Select Committee on Outer Continental Shelf, 94th Cong., 2d Sess., 93 (Comm. Print 1976); Office of Technology Assessment, Offshore Oil and Gas Development, A Study for the Ad Hoc Select House Committee on Outer Continental Shelf, 95th Cong., 1st Sess., 155-157 (Comm. Print 1977). See also S. Rep. No. 94-277, pp. 19-20 (1975). See also id., at 52-53. The Senate Report also stated: “There is very little coordination or communication between Federal agencies and the affected coastal States prior to major energy resource development decisions, such as the decision to lease large tracts of the OCS for oil and gas .... Full implementation of the Coastal Zone Management Act of 1972 and recognition of its capability to solve energy-related conflicts could go far to institute the broad objectives of Federal-State cooperative planning envisioned by the framers of the act.” Id., at 3 (emphasis supplied). See 121 Cong. Rec. 23075 (1975) (remarks of Sen. Tunney); id., at 23082 (remarks of Sen. Kennedy); id., at 23084 (remarks of Sen. Williams); 122 Cong. Rec. 6117 (1976) (remarks of Rep. Forsythe). Similar statements were made emphasizing the breadth of the consistency requirement. See, e. g., id., at 6112 (remarks of Rep. Du Pont) (“Once a State has an approved coastal zone management plan in place, all subsequent Federal activities which affect the coastal zone must be found to be consistent with adopted State management programs”); id., at 6113 (remarks of Rep. Lent) (The 1972 CZMA “provides for the representation of local, State, and regional interests ... in the making of decisions affecting the coastal zone areas”). “The Senate bill required that each Federal lease (for example, offshore oil and gas leases) had to be submitted to each state with an approved coastal zone management program for a determination by that state as to whether or not the lease was consistent with its program. The conference substitute further elaborates on this provision and specifically applies the consistency requirement to the basic steps in the OCS leasing process — namely, the exploration, development and production plans submitted to the Secretary of the Interior.” H. R. Conf. Rep. No. 94-1298, p. 30 (1976). Representative Du Pont himself stated that he also believed that OCS leasing was subject to consistency requirements. See 122 Cong. Rec. 6128 (1976). This observation was later made in a statement signed by one of the principal sponsors of the 1976 legislation, Representative Studds. “Nowhere, in this entire set of deliberations [in 1976], was there any explilct [sic] or implicit reference to consistency decisions by the Department of the Interior in its pre-lease activity pursuant to Section 307(e)(1). The focus was on the proper time for a state to certify a private company’s activity — not on the federal agency’s obligations under Section 307(c)(1). “The deletion of ‘lease’ from Section 3[0]7(e)(3) was an agreement by the Congress that a State would have better information on which to base a 307(c)(3) decision later in the process — i. e., at the exploration and development stage — than when the oil company simply had been awarded a lease. Such deletion, however, had absolutely no reference to the range of pre-leasing decisions made by the Interior Department and no implication is warranted with respect to the Section 307(c)(1) issue here.” H. R. Rep. No. 97-269, p. 14 (1981) (additional views of Reps. Studds and D’Amours). The Report also incorporates by reference the earlier Congressional Research Service report, cited in n. 21, supra, detailing the impact of OCS leasing decisions on the coastal zone. See H. R. Rep. No. 95-590, p. 55, n. 1 (1977). See also 124 Cong. Rec. 2057-2058 (1978) (remarks of Rep. Murphy) (“I want to assure my colleagues that we are simply making sure that the provisions of the 1976 Coastal Zone Management Act consistency amendments will continue to operate in these revised OCS procedures”). See also S. Rep. No. 95-284, pp. 43-44 (1977); S. Conf. Rep. No. 95-1091, p. 105 (1978). Regulations have been issued governing oil and gas leasing which implement this requirement by requiring consideration of state coastal zone management plans. See 43 CFR § 3310.4 (1982). The Court does not offer a definition of the term “directly” for purposes of § 307(c)(1) since it takes the position that the statute does not extend to OCS activities. Therefore, I address only petitioners’ definition. Moreover, petitioners argue only that any “physical” impacts on the coastal zone depend on future licensing and hence are indirect. Petitioners cannot address the economic or social impacts of the leasing decision, however, which are not dependent upon subsequent approval, and which may well result in direct effects on the coastal zone, as Congress recognized both in the 1971 Senate Report and the 1976 CZMA amendments. As noted above, the findings of fact made by the lower courts indicate that the proposed lease sale at issue here would have had direct economic and social effects on the coastal zone. To make sure of the correct construction of the Act, two sponsors of the 1980 amendments conducted a colloquy on the floor of the House in which they indicated that the intent of Congress was to apply § 307(c)(1) to OCS leasing decisions if as a factual matter they affected the coastal zone. “[Mr. McCloskey.] Do any portions of the Coastal Zone Management Improvement Act or the report language change the provisions of section 307 of the Coastal Zone Management Act on coordination and cooperation, the so-called Federal consistency provision? “Mr. Studds. I would like to assure my colleague that nothing in H. R. 6979 nor its accompanying report changes the intent of the Federal consistency provision. In testimony before the Subcommittee on Oceanography, we heard from many witnesses that this section is critical for the effective implementation of State management programs. Since the consistency provisions are important to the act and appear to be working, no changes were made to section 307 of the act. “Mr. McCloskey. I assume that this means also that there are no changes in the bill or the report language which further modify the term ‘directly affecting’ which occurs in section 307(c)(1) of the original statute. “Mr. Studds. The gentleman from Washington is correct. The term ‘directly affecting is essentially one of fact’ as the Department of Justice has previously concluded.” 126 Cong. Rec. 28458 (1980). Representative Studds’ reference was to the Department of Justice’s previously stated position that § 307(c)(1) did apply to OCS leasing activity if, in fact, a given leasing decision could be said to directly affect the coastal zone. See App. 35-47. Even if the Court were correct to view the 1980 history as not part of the legislative history ofthe CZMA, despite thefact that Congress infact reauthorized the CZMA in 1980 and explicitly stated its view as to the correct construction of § 307(c)(1), this nevertheless qualifies as the view of a subsequent Congress and is not without persuasive value. See, e. g., Bell v. New Jersey, 461 U. S. 773, 784-785 (1983); Bob Jones Univ. v. United States, 461 U. S. 574, 599-602 (1983); Andrus v. Shell Oil Co., 446 U. S. 657, 666, n. 8 (1980). See 46 Fed. Reg. 26660 (1981). See 16 U. S. C. § 1463a (1982 ed.).

Delaware Department of Natural Resources & Environmental Control v. United States Army Corps of Engineers

OPINION OF THE COURT SCIRICA, Circuit Judge. At issue is whether the U.S. Army Corps of Engineers can deepen the main channel of the Delaware River by five feet, enabling river ports to be economically competitive and at the same time, comply with statutes that protect the environment. The roots of the project trace back decades. In 1992, Congress authorized the project and appropriated $195 million. It continued to support the effort with regular appropriations for the next twenty years. Commencement was delayed for several reasons, but in the fall of 2009, the Corps was ready to proceed. In October 2009, New Jersey and Delaware filed suits in the District Courts of New Jersey and Delaware to enjoin the Corps from dredging the deeper channel. They alleged violations of the National Environmental Policy Act (“NEPA”), the Clean Water Act (“CWA”), and the Coastal Zone Management Act (“CZMA”). Each District Court granted summary judgment to the Corps, holding no environmental statutes would be breached. We will affirm. I. A. The federal government has maintained navigation in the Delaware River for over one hundred years. The initial project, “Philadelphia to the Sea,” was authorized by Congress in 1910 and ensures a navigation channel of 40-foot depth between Allegheny Avenue, Philadelphia, and a deep water point in the Delaware Bay, near Ship John Light. It requires the Corps to dredge 3.45 million cubic yards of material annually and to deposit the sediment at nearby locations, either owned or leased by the federal government. In 2009, the Corps used seven confined sites and one open-water site for disposal. The deepening project dates to 1954, when the Senate Committee on Public Works, by resolution, requested the Corps to study “the Delaware River between Philadelphia and the sea, for the purpose of identifying the need for any modification to the existing channel dimensions and anchorage areas.” In 1970, the House Committee on Public Works also instructed the Corps to analyze commerce along the Delaware River and to identify projects that would promote development of its ports. Pursuant to these directives, the Corps made extensive studies during the 1970s and 1980s. In 1992, it published a Feasibility Report and Environmental Impact Statement (“EIS”), recommending a deepening of five feet along the “main stem” of the Delaware River, the 102-mile stretch between the mouth of the Delaware Bay and the Philadelphia and Camden harbors. The Environmental Impact Statement predicted the deepening project would yield substantial economic benefits in the form of reduced costs to shippers. The main stem of the river hosts a concentration of heavy industry, as well as the second largest complex of oil refineries and petrochemical plants in the nation. But, as the EIS observed, “current authorized channel dimensions ... present a constraint to efficient vessel movement.” The report determined that deepening the main navigation channel by five feet would benefit oil tankers, dry bulk shippers, and other large vessels, because it would enable them to service Delaware River ports without needing to “lighter” (transfer a portion of their cargo in the lower Delaware Bay) or “light load” (travel at under-capacity). While the EIS identified potential adverse impacts to water quality, benthic organisms, and fishery resources, it concluded these would be minimal and were outweighed by the project’s benefits. Altogether, it forecast that construction and maintenance of a 5-foot deeper channel for five years would require the Corps to dredge 375 million cubic yards of material above the dredging associated with the Philadelphia to the Sea project. In June 1992, the Corps submitted the Environmental Impact Statement to Congress. That October, Congress passed the Water Resources Development Act, authorizing the deepening project to go forward. See Water Resources Development Act of 1992, Pub. L. No. 102-580, § 101(6), 106 Stat. 4797 (“WRDA”). Congress estimated the project would cost a total of approximately $295 million, with $195 million to be borne by the federal government. Id. In December 1992, the Corps issued a Record of Decision stating the deepening project was “economically justified, in accordance with environmental statutes, and in the public interest.” Not only would “transportation cost savings ... outweigh any adverse effects,” but the project was preferable to all other alternative plans, including a “no action” alternative. - After issuing the Record of Decision, the Corps initiated the Preconstruction, Engineering and Design (“PED”) phase of the project. It consulted federal and state agencies and outside experts, and conducted new environmental analyses. In 1997, the Corps published a Supplemental Environmental Impact Statement (“SEIS”). Its goals were first, to “provide additional information and environmental analysis to address environmental concerns raised during review of the 1992 [EIS]”; and second, to evaluate modifications to the deepening project that had been made since the EIS was published. Like the EIS, the SEIS recommended the project proceed. At the same time, it reduced its estimate of the amount of material to be dredged over 50 years — for initial project construction and future maintenance— from 375 to 321 million cubic yards. Like the EIS, the SEIS concluded the project would yield considerable economic benefits at a minimal environmental cost. On December 18,1998, the Corps issued a second Record of Decision stating it had “reviewed and evaluated documents concerning the proposed action, including additional PED phase studies,” and it concluded “[t]he public interest will best be served by implementing the improvements identified and described in the Feasibility Report and the Supplemental Environmental Impact Statement.” The Record of Decision reiterated that “[a]ll practical means to avoid or minimize adverse environmental effects have been incorporated into the recommended plan.” For the next eleven years, progress on the deepening project stalled. One reason for the delay was that in the mid-2000s, the Delaware River Port Authority (“DRPA”) withdrew the support it had tendered in 1999, leaving the Corps without a local partner. In June 2008, the Philadelphia River Port Authority (“PRPA”) came forward and signed a partnership agreement with the Corps. The agencies agreed to share costs: 75% for the Corps, 25% for PRPA. By late 2008, the Corps was ready to commence dredging the deeper channel. But over a decade had passed since the SEIS was published, and there were new developments. First, improved survey technology meant the deepening could be deployed more efficiently, reducing the amount of sediment. The total estimated dredging for the project over a 50-year period was reduced again, from 321 to 232 million cubic yards. Accordingly, the updated disposal plan called for using only existing, federally-owned sites — the four new disposal sites included in the SEIS were no longer necessary. Second, the construction plan now called for dredged sand from the Delaware Bay to be deposited directly onto Broadkill Beach, DE, rather than temporarily stockpiled offshore. Third, the reduction in the amount of predicted dredged material meant a wetlands restoration project at Egg Point Island, NJ, would be deferred. Finally, there were two environmental changes since 1997. An oil spill from the T/S Athos I in November 2004 had released 265,000 gallons of oil into the Delaware River, temporarily increasing the toxicity of the river’s sediments. Also, recent surveys predicted an expansion in the number and distribution of shortnose sturgeon in the Delaware River, potentially increasing the risk that rock blasting in the Marcus Hook region could cause the species. The Corps released a public notice on December 17, 2008, announcing it was undertaking a new “environmental review.” The notice stated: Notice is hereby given that the Philadelphia District, U.S. Army Corps of Engineers, is conducting an environmental review of all applicable, existing and new information generated subsequent to the Supplemental Environmental Impact Statement (SEIS) of 1997 prepared for the Delaware River Main Stem and Channel Project.... At present, the Philadelphia District has found no factors precluding the Project from moving forward based on previous studies. A summary of project changes and environmental changes known to date is attached. The public and all agencies are invited to comment on the attached changes, and to identify any applicable existing and new information generated subsequent to the 1997 SEIS by responding to this Public Notice. A copy of the SEIS of 1997 and other environmental studies performed since the completion of the SEIS, are among the information available on the District’s website. The environmental review referenced above will be used to update the environmental record, and to determine whether further environmental work and analyses are needed. On April 3, 2009, the Corps published an Environmental Assessment (“EA”). The report’s central conclusion was that no additional environmental impact statement was necessary. None of the developments since 1997 — the elimination of the four new disposal sites, the plan for direct stockpiling at Broadkill Beach, the deferment of wetlands restoration at Egg Point Island, and the possible changes to the natural environment — had materially altered the project’s environmental risk profile. Thus, the EA closed with a signed declaration by the Commander of the Corps’ Philadelphia District, stating: Based on the information contained in this EA ... 1) none of the changes to the proposed project are “substantial”; and 2) there are no new circumstances that can be considered “significant.” Therefore, I have determined that the threshold for preparation of a Supplemental Environmental Impact Statement (SEIS) ... has not been met and that changes to the project or project conditions since the 1997 SEIS will not have a significant adverse effect on the human environment. Like the Environmental Impact Statement and Supplemental Environmental Impact Statement, the Environmental Assessment recommended the project proceed because its substantial economic benefits outweighed any possible adverse environmental effects. On April 8, 2009, the Corps transmitted the 1997 Supplemental Environmental Impact Statement and 2009 Environmental Assessment to the chairs of the Senate and House Subcommittees on Energy and Water Development in the Committees on Appropriations. When Congress first authorized the deepening project in 1992, the Corps initiated a comprehensive process of discussion, coordination, and collaboration with New Jersey and Delaware to obtain the state authorizations mandated by various environmental statutes. Two statutes are relevant to this appeal. First, the Coastal Zone Management Act obligates the Corps to submit a “consistency determination” to any state whose “coastal zone” will be affected by one of its activities. 16 U.S.C. § 1456(c)(1)(A), (C). The consistency determination describes how the Corps will deploy the project “in a manner which is consistent to the maximum extent practicable” with the state’s program for managing coastal areas. Id. If the Corps receives a “concurrence,” it may proceed; if it does not, it can proceed over the state’s objection in limited circumstances. 15 C.F.R. §§ 930.41(a)-(d), 930.43(d). Second, the Clean Water Act requires the Corps to comply with all state laws “respecting the control and abatement of water pollution.” 33 U.S.C. § 1323(a). The Corps must obtain a state “water certification” when, on the basis of a federally-issued permit, it plans to discharge pollutants into a state’s navigable waters. 33 U.S.C. § 1341(a). To comply with the CZMA, the Corps submitted “consistency determinations” to the Delaware Department of Natural Resources and Environmental Control (“DNREC”) and the New Jersey Department of Environmental Protection (“NJDEP”) in 1996. Delaware identified several concerns, but provided a concurrence on May 1, 1997. New Jersey signed a Memorandum of Understanding with the Corps on August 29,1997, and on the same day, provided a concurrence. Accordingly, both CZMA clearances were in place in 1997. But each state retreated. New Jersey attempted to “revoke” its CZMA concurrence in September 2002, and requested supplemental filings from the Corps in 2008 and again in 2009. Delaware issued an order requiring the Corps to submit a new consistency determination in 2009, contending “substantial project modifications” had rendered its 1997 concurrence outdated. The Corps did not provide supplemental consistency determinations to New Jersey or Delaware. Rather, on November 9, 2009, it issued a Memorandum of Record concluding that no additional coordination was necessary for the Corps to comply with the CZMA. The Corps referred to the April 2009 EA, which had found that no substantial changes to the project had been made and no significant new information about the project’s consequences had surfaced since the 1997 SEIS. Because concurrences from each state had been in place at that point in time, and because the project’s risk profile had not changed, it was not necessary to provide supplemental consistency determinations. On January 19, 2001, the Corps initiated coordination with Delaware to comply with the Clean Water Act; that is, it applied to the Delaware Department of Natural Resources and Environmental Control for a water quality “certification” as well as for Subaqueous Lands and Wetlands permits. See 7 DeLCode chs. 60, 66 & 72. These efforts were unsuccessful. Significantly, Delaware took no action on the Corps’ application for the next eight years. On December 30, 2008, it filed a comment in response to the public notice issued by the Corps on December 17, stating it would review any new information on the project “in the context of a new Delaware sub-aqueous lands and wetlands permit application.” The implication was that Delaware had denied, by inaction, the prior requests for Subaqueous Lands and Wetlands permits and was now requesting a new application. On July 23, 2009, eight and a half years after the Corps filed its application, Delaware made its denial of the 2001 application official by order of the Secretary of DNREC. The record does not indicate whether the Corps applied for a water quality certification from New Jersey to comply with the Clean Water Act. But neither party disputes that to date, the Corps has not obtained such a certification from New Jersey. Despite these roadblocks, the Corps issued a Memorandum of Record on April 30, 2009, invoking its authority to “maintain navigation” under Section 404(t) of the Clean Water Act. See 33 U.S.C. § 1344(t). This authority, the Corps contends, relieved it of any further obligation to obtain Subaqueous Lands and Wetlands permits from Delaware. The Corps drew additional authority from Section 404(r) of the CWA, which provides a special waiver for projects that are congressionally authorized. Id. § 1344(r). It contends Section 404(r) obviated the need to obtain water quality certifications from Delaware or New Jersey. By late 2009, the Corps believed it had complied with all statutory mandates and could begin dredging the deeper channel. Under NEPA, it had published an Environmental Assessment in April 2009, concluding the project was in the public interest and that no additional environmental impact statements were necessary. Under the CZMA, it had submitted consistency determinations to New Jersey and Delaware in 1996, obtained concurrences within a year, and issued a Memorandum of Record announcing no additional CZMA coordination was necessary. Under the Clean Water Act, it had issued a separate Memorandum of Record in April 2009, invoking Section 404(t) of the Act to overcome the need for the special Delaware permits, and believed it could otherwise rely on the Section 404(r) exemption to circumvent the water quality certifications. In October 2009, the Corps entered into a contract with PRPA which authorized it to initiate the project at “Reach C,” a 12-mile stretch spanning from the Delaware Memorial Bridge to the C & D Canal. The contract did not authorize the Corps to deepen any other portion of the river until December 2010. B. On October 30, 2009 and November 2, 2009, the Delaware Department of Natural Resources and Environmental Control and the New Jersey Department of Environmental Protection initiated actions in the District Courts of Delaware and New Jersey to prevent the Corps from commencing dredging of the deeper channel. In the Delaware action, DNREC sued under the Clean Water Act, Clean Air Act, Coastal Zone Management Act, and the Delaware Code, requesting the court enjoin the Corps until it obtained the authorizations and concurrences from Delaware specified by those statutes. Delaware Riverkeeper Network (“Riverkeeper”) intervened as a plaintiff, and PRPA as a defendant. On January 29, 2010, the District Court granted in part and denied in part Delaware’s request. It preliminarily enjoined the project at Reaches A, B, D, and E, but allowed the Corps to commence at Reach C. The parties filed and cross-filed motions for summary judgment, and on December 7, 2010, the District Court dissolved its partial injunction and granted summary judgment to the Corps and PRPA. It held the Corps had properly invoked its authority to “maintain navigation” under Section 404(t) of the CWA, and this made all the difference. It held: “Having determined that the navigation exception ... is applicable here ... the Corps is exempt from compliance with the CWA, CZMA, and CAA, and judgment must be entered in its favor.” In the New Jersey action, NJDEP sought relief under NEPA, the CWA, the CZMA, the Clean Air Act, the Fish & Wildlife Coordination Act, the Water Resources Development Act, and the Magnuson-Stevens Fishery Conservation and Management Act. NJDEP asked the court to enjoin the Corps until it had “comprehensively sample[d] and analyze[d] the sediment within the areas to be dredged,” issued a new SEIS, obtained a water quality certificate from New Jersey, and completed its supplemental coordination under the CZMA. Riverkeeper again intervened as a plaintiff, and PRPA again intervened as a defendant. The parties filed and cross-filed motions for summary judgment and on January 13, 2011, the court granted summary judgment in favor of the Corps and PRPA. The court held the Corps had complied with NEPA when it issued the 2009 EA, complied with the CZMA when it declined to provide a supplemental consistency determination, and was relieved of its obligations under the CWA because Congress authorized the project in 1992. Riverkeeper and New Jersey appealed both judgments under NEPA, the CZMA, and the CWA, and we consolidated their cases for review. Delaware did not file an appeal. As this litigation unfolded, the Corps made headway on the project. After receiving court approval in January 2010, it commenced dredging at “Reach C” and completed that segment in September 2010. In November 2011, the Corps began deepening the 4-mile stretch known as “Lower Reach B,” which extends from Oldsman Creek to the Delaware Memorial Bridge. That segment is now also complete. See Delaware River Main Channel Deepening Project: Construction Status, U.S. Army Corps of Engineers Philadelphia District, http://www.nap.usace.army. mil/cenappl/drmcdp/drcs.htm (last updated Jan. 20, 2012); Jon Hurdle, New Federal Funding May Move Delaware River Channel-Deepening Project Forward, DFMNews (Feb. 20, 2012), http://www.delawarefirst.org/23188-delaware-river-channel-deepening. II. We review grants of summary judgment de novo. Startzell v. City of Phila., 533 F.3d 183, 192 (3d Cir.2008). Summary judgment is proper when the pleadings, the discovery, the disclosure materials on file, and any affidavits show that there is no “genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Because appellants challenge the actions of a federal agency (the Corps) in its application of federal law (NEPA, the CWA, the CZMA, and corresponding regulations), our standard of review is informed by administrative law doctrines prescribing the degree of deference a reviewing court should apply to agency conduct. We elaborate further on the amount of deference due for each of the statutory challenges. III. New Jersey and Riverkeeper contend the Corps’ decision to proceed with the project in 2009 ran afoul of NEPA procedurally and substantively. As for procedures, appellants contend the publication of the EA was arbitrary and capricious because the Corps failed to comply with the regulations governing the preparation of NEPA studies. As for substance, appellants contend the EA fell short of the “hai’d look” demanded by NEPA on whether an SEIS was necessary. As explained below, we find all NEPA claims unavailing. A. Congress enacted the National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (codified at 42 U.S.C. § 4321 et seq.), to further two goals: ensure federal agencies consider the environmental consequences of projects before committing resources; and facilitate agencies’ communication with the public about their environmental analyses. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-52, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA is a procedural statute. Its goal is to “prohibi[t] uninformed — rather than unwise — agency action.” N.J. Dep’t of Envtl. Prot. v. U.S. Nuclear Regulatory Comm’n, 561 F.3d 132, 134 (3d Cir.2009) (internal quotation marks and citation omitted). NEPA also created the Council of Environmental Quality (“CEQ”) within the Executive Office of the President, granting it authority to issue regulations effectuating NEPA. CEQ regulations are “mandatory” for all federal agencies, carry the force of law, and are entitled to “substantial deference.” See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 372, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979). In addition to CEQ regulations, agencies are bound by whatever regulations they promulgate under NEPA. E.g., 33 C.F.R. § 230 et seq. (U.S. Army Corps of Engineers’ regulations). NEPA requires federal agencies to prepare environmental impact statements before undertaking “major [fjederal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4832(C). To comply, an agency must first decide whether a contemplated project qualifies as a “major federal action significantly affecting the quality of the human environment.” CEQ regulations instruct the agency to consider both the “context” and “intensity” of the action to determine if its environmental effects will be “significant.” 40 C.F.R. § 1508.27(a)-(b). If the project qualifies, the agency should assess whether it is of a type that “[njormally requires an environmental impact assessment” or “[njormally does not require either an environmental impact statement or environmental assessment (categorical exclusion).” Id. § 1501.4(a)(1)-(2). If the action normally requires an impact statement, the agency should prepare one. If it normally requires neither an impact statement nor an assessment, the agency can proceed with the project. In all remaining situations, the agency should “prepare an environmental assessment” for the action. Id. § 1501.4(b). An EA is a “concise public document” that “[bjriefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].” Id. § 1508.9(a). If the agency concludes on the basis of the EA that no environmental impact statement is needed, it must issue a Finding of No Significant Impact (“FONSI”). Id. § 1501.4(e). Agencies must update — or “supplement” — their environmental impact statements over time to ensure they are current. Marsh, 490 U.S. at 370-74, 109 S.Ct. 1851. CEQ regulations instruct agencies to “prepare supplements to either draft or final environmental impact statements” in two situations: (1) if “[tjhe agency makes substantial changes in the proposed action that are relevant to environmental concerns,” or (2) if “[tjhere are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1); see also 33 C.F.R. § 230.13(b) (requiring the Corps to supplement an EIS “whenever required as discussed in 40 CFR 1502.09(c)”). The Supreme Court has elaborated that an agency must take a “hard look” in assessing whether either of the Section 1502.9(c) scenarios is present. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 72-73, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). Understandably, neither NEPA nor CEQ regulations prescribes particular proceedings agencies should use in carrying out this “hard look.” In re Operation of Mo. River Sys. Litig., 516 F.3d 688, 695 (8th Cir.2008). B. Judicial review of agency conduct under NEPA is deferential. The sole question on review is whether the agency’s actions were arbitrary or capricious. See 5 U.S.C. § 706(2)(A). When an agency publishes an EA and concludes an EIS is not needed, courts set those determinations aside only if there is evidence they were arbitrary or capricious. See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 763, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (“An agency’s decision not to prepare an EIS can be set aside only upon a showing that it was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ”) (citing 5 U.S.C. § 706(2)(A)); Soc’y Hill Towers Owners’ Ass’n v. Rendell, 210 F.3d 168, 180 (3d Cir.2000). Similarly, arbitrary and capricious review attaches to an agency decision not to supplement an EIS. Marsh, 490 U.S. at 375-76, 109 S.Ct. 1851 (“We conclude that review of the narrow question ... whether the Corps’ determination that the FEISS need not be supplemented should be set aside is controlled by the ‘arbitrary and capricious’ standard of § 706(2)(A).”). If some years pass between an agency’s completion of an EIS and its commencement of a project, a supplemental EIS may be indicated. But in Marsh, the Court made clear that judicial review of agency conduct in such situations is “narrow,” as is generally the case with arbitrary and capricious review. Marsh, 490 U.S. at 378, 109 S.Ct. 1851. An agency’s decision not to supplement an EIS “is a classic example of a factual dispute the resolution of which implicates substantial agency expertise.” Id. at 376, 109 S.Ct. 1851. Thus, the standard is still whether the action evidences arbitrary or capricious decision-making. See Town of Winthrop v. Fed. Aviation Admin., 535 F.3d 1, 3 (1st Cir.2008) (upholding the FAA’s decision in 2007 not to supplement an EIS from 2002); Ark. Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 431 F.3d 1096, 1103-04 (8th Cir.2005) (upholding the Corps’ decision in 2004, after conducting an EA, not to supplement an EIS from 1999); Price Road Neighborhood Ass’n, Inc. v. U.S. Dep’t of Transp., 113 F.3d 1505 (9th Cir.1997) (upholding the Federal Highway Administration’s determination that a project change did not require a new EA). C. In our review of the Corps’ conduct, we conclude that its publication of the 2009 EA was neither arbitrary nor capricious. 1. The Corps complied with the procedural requirements prescribed by NEPA and its corresponding regulations because it engaged in a transparent and inclusive process, soliciting the views of federal and state agencies as well as of members of the public, and published an exhaustive, 179-page Environmental Assessment that reviewed the project’s risks, responded to concerns raised, and came to the reasonable conclusion the project should proceed. Neither CEQ nor Corps regulations detail the process an agency should follow when publishing an environmental assessment. See generally 40 C.F.R. § 1508.9 (CEQ regulations defining EAs); 33 C.F.R. § 230.10 (Corps regulations defining EAs). There are no notice requirements, pre-circulation requirements, or instructions about the public comments process. CEQ regulations only provide that agencies “shall involve ... the public, to the extent practicable, in preparing [environmental] assessments^]” 40 C.F.R. § 1501.4(b). This is different in the case of environmental impact statements, for which CEQ and Corps regulations are detailed. See Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1279 (10th Cir.2004) (“NEPA’s public involvement requirements are not as well defined when an agency prepares only an EA and not an EIS.”). The Corps’ procedures in preparing and publishing the 2009 EA satisfied Section 1501.4(b)’s directive to “involve ... the public to the extent practicable.” On December 17, 2008, the agency published a notice stating it was undertaking an “environmental review” in order “to update the environmental record, and to determine whether further environmental work and analyses are needed.” The Corps provided a summary of changes to the project that had been made since 1997 and links to the SEIS, EIS, and reports by other federal agencies. Collectively, the notice and appended materials communicated to the public that the Corps was undertaking a new environmental study of the deepening project and that its goal was to determine whether “further environmental work,” such as a new SEIS, was needed. It directly provided the public with access to the information it would rely upon and solicited comments. The 30-day comment period was equal to the length of time mandated by CEQ regulations for comment periods for final EIS studies. 40 C.F.R. § 1506.10(b)(2). The Corps was transparent, clear, and inclusive. After soliciting and reviewing the public comments, the Corps published a thorough, 179-page Environmental Assessment on April 3, 2009. The report addressed the substance of the most important issues raised in the comments — questions about sediment quality, water quality, air quality, biological resources, and the impacts of the Athos oil spill. Each environmental risk, the report concluded, was minimal and could be mitigated through appropriate implementation measures. The Corps also responded in great detail to a comment filed by the New Jersey Department of Environmental Protection on January 14, 2009, sending the agency a letter on April 24, 2009 that reiterated the findings of the EA and expounded on its conclusions. Despite the Corps’ comprehensive public engagement, appellants contend it acted arbitrarily and capriciously under NEPA. They argue the Corps provided inadequate public notice; erred in declining to publish a FONSI alongside the EA; erred in not circulating a draft of the EA for public review before publication; and did not meaningfully review the comments submitted. None of these claims has merit. Regarding public notice, appellants contend the Corps did not specify the form of its forthcoming “review,” i.e., that it would be an Environmental Assessment, and that the comment period fell during a time of year when many people are on vacation. But as explained, neither NEPA nor its corresponding regulations impose a public notice requirement for EAs. See generally 40 C.F.R. § 1508.9; 33 C.F.R. § 230.10. The CEQ regulations only direct that agencies “involve ... the public, to the extent practicable.” 40 C.F.R. § 1501.4(b). The December 17, 2008 notice satisfied this mandate by describing a forthcoming “environmental review” that would be “used to update the environmental record, and to determine whether further environmental work and analyses are needed.” Furthermore, the Corps appended a wealth of materials to its notice to make evident the information it would rely upon and to solicit feedback on that information. Courts have upheld EAs preceded by public notices with the same or with considerably less detail than that here. E.g., Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 519 (D.C.Cir.2010) (involving a public notice that did not “supplfy] any specific environmental information”); Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 952-53 (9th Cir.2008) (involving a notice that did not specify an EA was being prepared); Alliance To Protect Nantucket Sound, Inc. v. U.S. Dep’t of Army, 398 F.3d 105, 108, 115 (1st Cir.2005) (involving a notice that did not mention a forthcoming EA). Second, appellants fault the Corps for publishing the EA without issuing a Finding of No Significant Impact. But neither CEQ nor Corps regulations impose a FONSI requirement in this context — an agency deciding, on the basis of an EA, whether to issue a supplemental EIS. The regulations require FONSIs only when the agency employs an EA to decide whether to issue an initial EIS. See 40 C.F.R. § 1501.4(e) (instructing agencies to prepare “a finding of no significant impact (§ 1508.13) if the agency determines on the basis of an environmental assessment not to prepare a[n environmental impact] statement”); 33 C.F.R. § 230.11 (“A FON-SI shall be prepared for a proposed action, not categorically excluded, for which an EIS will not be prepared.”). Given that CEQ and Corps regulations authorize the use of EAs for a wide array of purposes, see 40 C.F.R. § 1501.3(b) (“Agencies may prepare an environmental assessment on any action at any time in order to assist agency planning and decisionmaking.”); 33 C.F.R. § 230.10(c), their silence on FON-SIs for all but the initial EIS-determination is instructive. The Corps was not required to issue a FONSI, and its decision to refrain from doing so was not arbitrary or capricious. See In re Operation of Mo. River Sys. Litig., 516 F.3d at 695 (“[T]he Corps prepared an EA, not to help it decide whether to prepare an EIS, but rather to determine whether the change in agency action required an SEIS. As this case illustrates, it is reasonable to expect that the Corps will sometimes determine that a FONSI is not appropriate because the action being taken has a significant impact on the environment, but an SEIS is not required because the impact was sufficiently analyzed in an earlier FEIS [Final Environmental Impact Statement]. This approach is neither a misuse of the EA procedure nor a violation of NEPA.”). Third, appellants contend the Corps’ failure to circulate a draft of the EA before final publication was procedurally invalid. But neither CEQ nor Corps regulations impose a universal requirement to circulate draft EAs before publication. The CEQ regulations instruct that a document be disseminated for public review only when it is a draft or final EIS, 40 C.F.R. § 1506.10(b), or involves a “proposed action” that (i) would normally require an EIS which the agency has decided to forgo, or (ii) is “without precedent,” id. § 1501.4(e)(2)(i), (ii). The Corps’ regulations require that EAs be circulated before publication only when they concern “feasibility, continuing authority, or special planning reports and certain planning/engineering reports.” 33 C.F.R. § 230.11. The EA for the deepening project did not fall into any of these categories. See Bering Strait Citizens, 524 F.3d at 952 (“We hold today that the circulation of a draft EA is not required in every case.... Our conclusion is consistent with the views of other circuits, which uniformly have not insisted on the circulation of a draft EA.”); Fund for Animals, Inc. v. Rice, 85 F.3d 535, 549 (11th Cir.1996) (holding there was “no legal requirement that an Environmental Assessment be circulated publicly and, in fact, they rarely are” (emphasis omitted)). Meanwhile, although some evidence in the record suggests the Corps often released EAs for public review before publication, this was a nonbinding internal practice from which the Corps had discretion to deviate. United States v. Caceres, 440 U.S. 741, 754 n. 18, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979) (“[A]geneies are not required, at the risk of invalidation of their action, to follow all of their rules, even those properly classified as ‘internal.’ ”). It exercised that discretion reasonably, given the long history of public involvement in reviewing and commenting on the deepening project, including the recent four-week comment period, and given the EA’s central conclusion that no factor or development altered the findings of the earlier reports. E.g., Pogliani v. U.S. Army Corps of Eng’rs, 306 F.3d 1235, 1240 (2d Cir.2002) (refusing to grant a preliminary injunction based on the Corps’ decision not to circulate a draft EA because the action was not one which “normally requires” an EIS nor “without precedent” under 40 C.F.R. § 1501.4(e)(2), and so did not have a pre-circulation requirement). Finally, appellants contend the Corps failed to meaningfully consider the public comments it received on its December 17, 2008 notice. But the 179-page Environmental Assessment comprehensively addressed the key issues raised in the comments. See supra. Furthermore, the record demonstrates over twenty years of engagement by the Corps with the public, state governments, and other federal agencies. The Corps’ activity in the 2008-2009 period was the final chapter of this engagement. On May 4, 1989, the Corps issued a notice of intent to file a Draft Environmental Impact Statement on the deepening project. It circulated a copy of that report for public comment on July 13, 1990, and released a final EIS in February 1992, incorporating the comments received. The Corps repeated this public engagement process for the SEIS in 1997. Between 1992 and 2008, it had a steady stream of communications with the EPA, New Jersey, and Delaware about the project’s compliance with the Clean Water Act and the Coastal Zone Management Act. It also engaged in rigorous coordination with the National Marine Fisheries Service (“NMFS”), conducting an Endangered Species Act consultation in 1996 and preparing a Biological Assessment for the agency in 2009. Given this twenty-plus year period of public, inter-state, and inter-agency involvement, the assertion that the Corps failed to engage the public or respond to its views lacks merit. 2. NEPA not only requires that agencies follow certain procedures when assembling environmental reports, but also that they take a “hard look” at the environmental costs of the proposed action as compared to the contemplated benefits. See Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (“Congress, in enacting NEPA----required [] that the agency take a ‘hard look’ at the environmental consequences before taking a major action.”); Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). The Corps provided the necessary “hard look” at the project’s costs and benefits, and at whether an additional SEIS was needed for the project, in the 2009 EA. Riverkeeper and New Jersey advance three reasons for why the agency’s review was not sufficient, none of which is convincing. First, Riverkeeper argues the EA failed to adequately address the adverse impacts the project could cause on the shortnose sturgeon. The shortnose sturgeon was included in the federal Endangered Species list at least as far back as 1996, meaning it bore that classification at the time the SEIS and EA were published. Some agencies and organizations had expressed concern during the comments period that the analysis of the shortnose sturgeon in the 1997 SEIS was no longer sufficient. New information about the species and its use of the Delaware River had become available, such that “the proposed deepening may affect shortnose sturgeon in a manner or to an extent not considered” previously. The EA contained no fewer than four separate sections on the shortnose sturgeon, including a comprehensive assessment of the species in an appended Essential Fish Habitat Evaluation. The report acknowledged that recent surveys showed “a significant expansion in the number and distribution of shortnose sturgeon in the Delaware River appears likely,” but it also cited a 2005 study which found that “large aggregations of sturgeon do not exist in the blasting area.” Furthermore, it explained how blasting techniques could be honed to minimize harm to the species. The Corps drew on these analyses — as well as its findings in a Biological Assessment published for NMFS earlier that year — to conclude that adverse impacts to the shortnose sturgeon would be minimal. The Corps’ conclusion was neither arbitrary nor capricious. Riverkeeper also contends the EA did not give a hard look to the dangers confronting the Atlantic sturgeon. NMFS designated the Atlantic sturgeon as a “candidate” for the Endangered Species list in 2006, and throughout the time at issue in this litigation, it retained that classification. “Candidate” species receive no statutory protection under the Endangered Species Act, but their vulnerability makes them appropriate for consideration in a NEPA review. The EA’s analysis of the Atlantic sturgeon was sufficient. The report contained two sections on “threatened and endangered species and other species of special concern,” each of which contained a subsection on the Atlantic sturgeon. The sturgeon’s use of the Delaware River— from spawning, to hatching, to other migratory patterns — was analyzed in detail. Furthermore,- every public comment about the vulnerability of the species that River-keeper cites in its Brief was also addressed in the EA. See Riverkeeper Br. at 85 (citing comments by NMFS, Prof. Dewayne Fox, and the Delaware River Basin Fish and Wildlife Management Cooperative). The Delaware River Basin Fish and Wildlife Management Cooperative filed a comment recommending the Corps “establish dredging and blasting windows that would result in the lowest probable impact to existing sturgeon populations of both Atlantic as well as shortnose.” The EA adopted this proposal: “All of these windows will be met during construction of the deepening project,” save for one, which was infeasible. Professor Dewayne Fox of Delaware State University advised the Corps to take into account “the large body of work ... done primarily by both DSU and the Delaware Department of Fisheries and Wildlife” about the Atlantic sturgeon. The EA devoted three pages to the studies of Professor Fox. NMFS informed the Corps it would “recommend protective measures” for the Atlantic sturgeon. The Corps committed to using “environmental windows” and “[cjonstruction techniques” to “reduce the impacts of rock blasting on fish,” and to working collaboratively with NMFS during the project design phase. Finally, New Jersey contends the EA’s analysis of potential water contamination was deficient. In two ways, New Jersey argues, the EA lacked the necessary data for a robust analysis. First, it did not include up-to-date sediment samples from “bend-widening areas” in the Delaware River, which are necessary to obtain ‘“a worst case picture of contaminant concentrations that would potentially be in the dredged material.’ ” N.J. Reply Br. 19 (citing the SEIS). Second, New Jersey-claims the EA omitted a “modified elutriate analysis,” which was important for predicting how dredged material, stored upstream, would impact surface water quality. Neither purported data shortcoming rises to the level of arbitrary or capricious action. The EA relied on a broad array of studies, surveys, and sediment samples to ground its analysis of the potential water contamination from the project. First, it relied on sediment samples evaluated in the SEIS, which New Jersey concedes included samples from bend-widening areas. These had shown no bioaccumulation of any significance in the river’s sediment, and no potential for the deepening to increase the water’s toxicity. Second, the EA “incorporated ... by reference” the modified elutriate analysis from the SEIS, which similarly concluded that “dredging and dredged material disposal operations would not significantly impact water quality within the Delaware River.” Third, the EA relied on two studies by the Corps in 2003 and 2005, analyzing “[a] total of 45 sediment cores” from the main channel and concluding there was negligible contamination. Finally, the EA relied on 162 sediment samples collected by the National Oceanic and Atmospheric Administration from intertidal and subtidal areas for a 2007 report. These samples showed the 2004 oil spill had left no lingering effects and “baseline conditions (i.e., no spill-associated service losses) [wejre reached in 14 months.” Altogether, this material provided the Corps a sufficient basis from which to analyze how the project would impact water contamination in the Delaware River and from which to draw well-reasoned, non-arbitrary conclusions. IV. Riverkeeper contends the Corps’ decision to proceed with the deepening project violated the Clean Water Act. First, River-keeper argues it violated Section 401(a), which requires recipients of federal permits who release “discharge” in navigable waters to obtain “a certification from the State in which the discharge originates or will originate.” 33 U.S.C. § 1341(a)(1). The Corps never secured water certifications from New Jersey or from Delaware for the project. Second, Riverkeeper contends the Corps’ actions ran afoul of Sections 313 and 404(t), which obligate federal agencies to comply with state environmental regulations when engaging in dredging operations. 33 U.S.C. § 1323(a); id. § 1344(t). After eight years of delay, Delaware denied the Corps two permits required by state law for users of subaqueous lands and wetlands in July 2009; nonetheless, the Corps decided to proceed. In response to Riverkeeper’s challenges, the Corps contends it is entitled to two statutory exemptions codified at Sections 404(r) and 404(t) of the CWA. For the reasons stated, we hold that both exemptions attach. A. The Clean Water Act (“CWA”) was enacted in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Federal Water Pollution Control Act, Pub. L. No. 92-500, § 101(a), 86 Stat. 816 (1972). Under its principal provision, “the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). The “discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source,” see id. § 1362(12); “navigable waters” are defined as “waters of the United States, including the territorial seas,” id. § 1362(7); and “pollutant” is defined as including “dredged spoil, ... rock, sand, [and] cellar dirt,” id. § 1362(6). The Delaware River readily qualifies as a “navigable water” because it is a “relatively permanent ... continuously flowing bod[y] of water forming geographic features that are described in ordinary parlance as ... rivers,” Rapanos v. United States, 547 U.S. 715, 739, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (internal quotation marks and citation omitted); and dredging qualifies as the “discharge of a pollutant” because it results in the “addition” of “dredged spoil” to a navigable water. Under Section 404(a), however, the U.S. Army Corps of Engineers may “issue permits ... for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” See CWA § 404(a) (codified at 33 U.S.C. § 1344(a)). The Corps “exercises the discretion of an enlightened despot” in issuing discharge permits, Rapanos, 547 U.S. at 721, 126 S.Ct. 2208, and considers a broad range of factors set forth in its regulations, see 33 C.F.R. § 320.4. But there is one statutory obligation incumbent upon the Corps. Before issuing a permit, it must apply “guidelines developed by the Administrator [of the EPA], in conjunction with the Secretary [of the Army],” which prescribe a rigorous review of a project’s environmental costs. CWA § 404(b)(1) (codified at 33 U.S.C. § 1344(b)); 40 C.F.R. § 230.10 et seq. The Clean Water Act requires federal agencies and holders of federally-issued discharge permits to comply with state and local environmental laws in two pertinent ways. First, under Section 401(a), the Act requires holders of U.S. Army Corps permits, issued pursuant to Section 404, to obtain “certifications” from the states in which the discharge into navigable waters will occur. CWA § 401(a) (codified at 33 U.S.C. § 1341(a)(1)) (“Any applicant for a Federal license or permit to conduct any activity ... which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate ... that any such discharge will comply with the applicable provisions of [other sections of this title].”). The state certification “shall become a condition of any Federal license or permit subject to the provisions of this section.” 33 U.S.C. § 1341(d). Second, under Sections 313 and 404(t), the Act requires federal departments and instrumentalities to comply with state environmental laws when they engage in activities that emit pollutants into navigable waters. CWA § 313 (codified at 33 U.S.C. § 1323(a)) (“Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government ... shall be subject to, and comply with, all Federal, State, interstate, and local requirements ... respecting the control and abatement of water pollution____”); CWA § 404(t) (codified at 33 U.S.C. § 1344(t)) (“[Every federal] agency shall comply with such State or interstate requirements both substantive and procedural to control the discharge of dredged or fill material to the same extent that any person is subject to such requirements.”). But the Act also provides exceptions to the provisions cited, enacted as part of the Clean Water Act of 1977, Pub. L. No. 97-217, 91 Stat. 1566. As to the water certification requirement under Section 401(a), Section 404(r) creates an exemption for projects “specifically authorized” by Congress. See CWA § 404(r) (codified at 33 U.S.C. § 1344(r)) (“The discharge of dredged or fill material as part of the construction of a Federal project specifically authorized by Congress ... is not prohibited by or otherwise subject to regulation under this section.... ”). As to the mandates to follow states’ environmental laws, codified at Sections 313 and 404(t), the final sentence of Section 404(t) provides a partial waiver. See CWA § 404(t) (codified at 33 U.S.C. § 1344(t)) (“This section shall not be construed as affecting or impairing the authority of the Secretary to maintain navigation.”); see also S.Rep. No. 95-370, at 68-69 (1977), 1977 U.S.C.C.A.N. 4326, 4393 (“[C]orps dredging activities are not exempt from State pollution abatement requirements.... [But this] is neither intended nor expected to result in compromising the ability of the corps to maintain navigation.”). Before Section 404(t) was added in 1977, the CWA had included a provision, still in force, that similarly preserved the Corps’ authority to “maintain navigation.” See CWA § 511(a)(2) (codified at 33 U.S.C. § 1371(a)(2)) (“This chapter shall not be construed as ... affecting or impairing the authority of the Secretary of the Army (A) to maintain navigation or (B) under the Act of March 3, 1899[.]”). B. The Corps asserts it was relieved of the need to obtain water certifications from New Jersey and Delaware under Section 401(a) of the CWA by virtue of the “eongressionally authorized” exception under Section 404(r). Riverkeeper disagrees, but we find the Corps’ argument convincing. As an initial matter, we agree with the Corps that “all of the elements of section 404(r) have been satisfied” for the deepening project. Section 404(r) provides: The discharge of dredged or fill material as part of the construction of a Federal project specifically authorized by Congress ... is not prohibited by or otherwise subject to regulation under this section ... if information on the effects of such discharge, including consideration of the guidelines developed under subsection (b)(1) of this section, is included in an environmental impact statement for such project pursuant to the National Environmental Policy Act of 1969 [42 U.S.C.A. § 4321 et seq.] and such environmental impact statement has been submitted to Congress before the actual discharge of dredged or fill material in connection with the construction of such project and prior to either authorization of such project or an appropriation of funds for such construction. 33 U.S.C. § 1344(r). Accordingly, to trigger Section 404(r), there must be a federal project specifically authorized by Congress. The deepening project unquestionably qualifies, as Congress clearly authorized it in the Water Resources Development Act of 1992, Pub. L. No. 102-580, § 101(6), 106 Stat. 4797, 4802 (“[T]he following projects for water resources development and conservation and other purposes are authorized to be carried out by the Secretary.... The project for navigation, Delaware River Mainstem and Channel Deepening, Delaware, New Jersey, and Pennsylvania: Report of the Chief of Engineers, dated June 29, 1992, at a total cost of $294,931,000, with an estimated Federal cost of $195,767,000....”). Section 404(r) also requires that “information on the effects of [the project], including consideration of the guidelines developed under subsection (b)(1)” be “included in an environmental impact statement ... submitted to Congress before the actual discharge of dredged or fill material ... and prior to either authorization of such project or an appropriation of funds for such construction.” 33 U.S.C. § 1344(r). This prerequisite was met. The Corps transmitted an EIS to Congress in June 1992 that had been prepared pursuant to NEPA and that included, as Section 404(r) directs, a “consideration of the guidelines developed under subsection (b)(1).” The transmission occurred five months before Congress authorized the project or appropriated funds, see WRDA, 106 Stat. at 4797 (showing a date passage of October 31, 1992), and years before any “actual discharge” occurred. Nonetheless, Riverkeeper contends Section 404(r) does not apply for two reasons. The first is that the 1992 EIS was incomplete because it lacked a Record of Decision. The Record of Decision was issued in December 1992, two months after the WRDA was enacted. But this is of no moment. Section 404(r) mandates that “[an] environmental impact statement ... [prepared] pursuant to the National Environmental Policy Act” be provided to Congress and that it “includ[e] consideration of the guidelines developed under subsection (b)(1)”; it never mentions a Record of Decision. The absence of a Record of Decision in the congressional submission violates no statutory command. Furthermore, the purpose of Section 404(r) is for Congress to receive sufficient information in order to make an informed judgment about whether to authorize a federal project. In cases like this, where an EIS is produced after a full-fledged notice and comment process, bears the title of “final” impact study, and is transmitted to Congress with an explicit request for a Section 404(r) exemption, that purpose has been achieved. Second, Riverkeeper contends the SEIS invalidated whatever exemption had been attained by virtue of the EIS. Riverkeeper claims the SEIS stands as proof that by 1997, the deepening project had changed to such an extent and new information had become available to such a degree, that Congress’s 1992 statutory authorization was no longer binding. But nothing in the text of Section 404(r) suggests that once the exemption attached, it lapses. The plain language of the statute states that when Congress “specifically authorizes” a federal project, following its consideration of an EIS, the exemption is triggered. 33 U.S.C. § 1344(r). There is no requirement that the agency submit supplemental NEPA reports so Congress can reauthorize the venture. Furthermore, the SEIS’s central findings were that despite the developments between 1992 and 1997 — e.g., modifications to the project, new scientific information that became available — the conclusions in the EIS still applied. The SEIS stated: “[Refinements to the authorized plan that were recommended in the 1992 Interim Feasibility Report.... did not alter the environmental impacts that were presented in the Final Environmental Impact Statement” and the project still “complied] with the 404(b)(1) guidelines.” There was no need to solicit reauthorization from Congress because the project had not changed in a material way. In sum, Section 404(r) of the CWA was triggered in 1992 and did not lapse by virtue of the Corps’ subsequent NEPA analyses. The Corps was relieved of the federal permitting requirement under Section 404, see 33 C.F.R. § 323.4(d) (explaining that “[fjederal projects which qualify under the criteria in section 404(r) of the CWA are exempt from section 404 permit requirements”), as well as from the water certification requirement under Section 401(a), see 33 U.S.C. § 1341(a)(1) (stating the certification mandate attaches to “applieant[s] for a Federal license or permit to conduct any activity”). The fact that the Corps attempted to work collaboratively with New Jersey and Delaware for several years does not undermine its lawful reliance on the Section 404(r) exemption. C. The Corps contends it was relieved of Sections 313 and 404(t) of the Clean Water Act, which required it to obtain special Delaware permits, because it was entitled to a statutory exemption codified at Section 404(t). We afford Skidmore deference to the Corps’ invocation of Section 404(t) and find its interpretation of the statute reasonable. We also find the Corps was neither arbitrary nor capricious in deciding to invoke Section 404(t). The Delaware Subaqueous Lands Act “empower[s] the Secretary to deal with or dispose of interest in public subaqueous lands.” 7 DeLCode Ann. tit. 7, § 7201. Under that authority, DNREC promulgated regulations instructing that “[n]o ... project which may potentially impact the public interest in the use of tidal or navigable waters [or] contribute to water pollution ... shall be undertaken on public or private subaqueous lands unless approval has been obtained from the Department.” 7 Del. Admin. Code § 7504-2.7. The Delaware Wetlands Act provides that “[a]ny activity on the wetlands requires a permit from [DNREC].” 7 Del.Code Ann. tit. 7, § 6604(a). The word “activity” is defined to include dredging operations. Id. § 6603. Both permit requirements extend to the deepening project because it calls for the disposal of dredged material at three subaqueous land-sites in Delaware and for a wetlands restoration project in Delaware. The Corps applied for subaqueous lands and wetlands permits in 2001. For eight years, Delaware stalled on its application. In light of Sections 313 and 404(t) of the CWA, which obligate federal agencies to follow states’ environmental laws, the Corps was at an impasse. Accordingly, it invoked the exemption set forth in Section 404(t) in the spring of 2009. That provision provides: “This section shall not be construed as affecting or impairing the authority of the Secretary to maintain navigation.” CWA § 404(t) (codified at 33 U.S.C. § 1344(D). On April 30, 2009, the Assistant Secretary of the Army for Civil Works signed a Memorandum of Record declaring the “failure to construct the 45 Project as authorized by Congress in 1992 has ... impaired the Secretary of the Army’s authority to maintain navigation .... ” The Assistant Secretary was “directing] the Corps to proceed with construction of the project.” The Memorandum of Record cited Section 404(t) of the CWA as the authoritative basis for its action. The Corps’ invocation of Section 404(t) was entitled to Skidmore deference. In cases involving an agency’s legal interpretation of a statute, the amount of deference afforded is governed by the Chevron framework. First, a court asks “whether Congress has directly spoken to the precise question at issue.” Chevron, USA, Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. Second, a court asks whether, if the statute is ambiguous, the agency has rendered “a permissible construction.” Id. at 843, 104 S.Ct. 2778. A court is more likely to find the agency’s interpretation permissible if there is a “complex and highly technical regulatory program,” Robert Wood Johnson Univ. Hosp. v. Thompson, 297 F.3d 273, 282 (3d Cir.2002) (citations and quotation marks omitted), or if the agency has employed formal procedures, such as notice and comment rulemaking, see Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). If the court declines to extend Chevron deference, it may nonetheless extend a lesser degree deference under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Before resorting to Skidmore deference, we observe that it is likely the phrase “maintain navigation” encompasses activities, such as the deepening project, that improve a body of water in order to keep navigation levels steady in light of changes to commercial markets, technology, and environmental conditions. While neither “maintain navigation” nor its component words are explicitly defined in the Clean Water Act, there is no evidence that Congress intended the phrase to encompass only those activities that preserve bodies of water as they existed in 1977, when the statutory language was inserted. See Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566. Arguably, such a reading would be irrational. Given that navigation evolves over time, limiting the Corps to preserving rivers as they were in 1977 could have the counter-productive effect of preventing it from “maintaining” ship traffic. The dictionary definitions also suggest the phrase reaches improvement projects. “Maintain” is defined as “to keep in an existing state (as of repair, efficiency or validity): preserve from failure or decline,” and “navigation” as “ship traffic or commerce.” See Merriam-Webster’s Collegiate Dictionary (11th ed. 2005). These are capacious definitions; preserving “ship traffic” from “failure or decline” could call for a wide range of activities, including repairs, modifications, and improvements. Nonetheless, were we to find the statutory text ambiguous, Skidmore deference would be warranted and would support the Corps’ action. A court will afford Skidmore deference upon consideration of “the thoroughness evident in [an agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161. The most important considerations are whether the agency’s interpretation “is consistent and contemporaneous with other pronouncements of the agency and whether it is reasonable given the language and purpose of the Act.” Cleary ex rel. Cleary v. Waldman, 167 F.3d 801, 808 (3d Cir.1999). The Corps’ interpretation of Section 404(t) is entitled to deference under these standards. Its reading did not contradict any of the agency’s prior statements about Section 404(t) — the Corps had only once before invoked the exception, and in a context different from but not in conflict with that here. See In re Operation of Mo. River Sys. Litig., 418 F.3d at 915 (affirming the Corps’ invocation of Section 404(t) to release water from a reservoir and support downstream navigation in the Missouri River). The interpretation also was reasonable “given the language and purpose” of the statute, because the view that “maintain navigation” extends to activities necessary to maintain current levels of ship traffic, which is what the EA forecasted the project would do by enabling shippers to employ a larger vessel fleet, see swpra note 5, is consistent with the plain meaning of “maintain” — i.e., to “preserve from failure or decline.” Finally, the canon that “[wjaivers of immunity must be construed strictly in favor of the sovereign,” see U.S. Dep’t of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992) (internal quotation marks and citation omitted), supports the Corps’ interpretation. Allowing “maintain navigation” to encompass the deepening project would have the effect of limiting the federal government’s waiver of sovereign immunity in the first part of Section 404(t). Riverkeeper contends Skidmore deference is improper. First, it argues that Congress intended Section 404(t)’s “maintain navigation” authority to be “linked with the Corps’ historical authorities under the Rivers and Harbors Act of 1899.... to maintain navigation by preventing the obstruction of navigable waterways.” Riverkeeper Br. at 47. In other words, Congress only intended for “maintain navigation” to protect the Corps’ mandate to do things it did in 1899 — such as removing physical blockages from rivers or preventing activities that would impede the flow of waterborne commerce. The statutory language, however, suggests the opposite. Congress did not include a reference to the Rivers and Harbors Act in the text of Section 404(t) as it had done when it codified Section 511 in 1972. Compare CWA § 404(t) (“This section shall not be construed as affecting or impairing the authority of the Secretary to maintain navigation.”), with CWA § 511(a)(2) (“This chapter shall not be construed as ... affecting or impairing the authority of the Secretary of the Army (A) to maintain navigation or (B) under the Act of March 3, 1899[.]”). This shows that if anything, Congress intended Section 404(t) to reach more broadly than the programs the Corps managed in 1899 and to encompass the full scope of the Corps’ activities in 1977. Finding the Corps’ interpretation of Section 404(t) worthy of deference under Skidmore, our final step is to determine whether the agency’s invocation of the exemption was arbitrary or capricious. See 5 U.S.C. § 706(2)(A); Robert Wood Johnson Univ. Hosp., 297 F.3d at 284. It was neither. After studying commerce patterns in the Delaware River for two decades and publishing three extensive reports, in 1992, 1997, and 2009, the Corps concluded a five foot deepening project was necessary to preserve the current flow of navigation in the Delaware River. As the EA put it, this project was essential to “improve the economic efficiency of ships moving through the Delaware ports,” help shippers “more efficiently apportion operating costs,” and “allow current dry bulk and container vessels to carry more cargo as well as allow a fleet shift in the charger dry bulk market.” The Corps’ consideration of the issue was “thorough” and its determination was reasonable. See Skidmore, 323 U.S. at 140, 65 S.Ct. 161. Meanwhile, Delaware had sat on its permit application for eight years and, in December 2008, told the Corps it would need to submit an entirely new application. Given that the first phase of the project was scheduled, as of April 2009, to begin in August 2009, the Corps was warranted in invoking the exception to save the project from postponement or indefinite delay. V. New Jersey contends the Corps acted arbitrarily and capriciously under the Coastal Zone Management Act when it decided, as memorialized in a Memorandum of Record issued on November 9, 2009, to proceed with the project without providing supplemental consistency determinations to Delaware or New Jersey. Because “significant new information” had become available since the Corps submitted its initial CZMA determinations in 1997, New Jersey contends, supplemental determinations were required. According to New Jersey, the Corps’ conclusion to the contrary was arbitrary and capricious because it was grounded in the procedurally and substantively flawed EA. A. The Coastal Zone Management Act of 1972 was enacted “to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation’s coastal zone for this and succeeding generations,” and to “encourage and assist the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone[.]” 16 U.S.C. § 1452(1), (2). States’ “management programs” must provide for “the protection of natural resources,” as well as “improved coordination between State and Federal coastal zone management agencies.” Id. § 1452(2)(A), (J). Federal agencies conducting activities “within or outside the coastal zone” are required to provide the relevant state(s) with a “determination” that the activity “shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs.” Id. § 1456(c)(1)(A), (C). The state(s), in turn, must either concur with or object to the federal agency’s determination. 15 C.F.R. § 930.41(a). A state “cannot unilaterally place an expiration date on its concurrence.” Id. § 930.41(d). Moreover, even if a state objects, the federal agency can proceed over the state’s objection if it “conclude[s] that its proposed action is fully consistent with the enforceable policies of the management program.” Id. § 930.43(d)(2). The CZMA regulations require federal agencies to supplement their consistency determinations if “the proposed activity will affects any coastal use or resource substantially different than originally described.” Id. § 930.46(a). “Substantially different” effects are “reasonably foreseeable,” and thereby warrant a supplemental determination, if: (1) the agency “makes substantial changes in the proposed activity that are relevant to the manageable program enforceable policies”; or (2) there are “significant new circumstances or information relevant to the proposed activity and [its] effect on any coastal use or resources.” Id. § 930.46(a)(1), (2). B. The Corps’ conclusion in the Memorandum of Record that it need not provide supplemental consistency determinations to either state under the CZMA was reasonable. Federal agencies are required to submit supplemental determinations in either of two instances: if the agency makes “substantial changes in the proposed activity,” or if “significant new circumstances or information relevant to the proposed activity and [its] effect on any coastal use or resource” arise. Id. § 930.46(a)(1), (2). Relying on the EA, the Corps concluded neither situation was present. With respect to “substantial changes” to the project, the Memorandum of Record identified three alterations that had been made since 1997, when the original CZMA consistency determinations were transmitted: (i) four disposal sites identified in the SEIS had been eliminated; (ii) sand would now be deposited directly onto Broadkill Beach, rather than initially stockpiled offshore; and (iii) a planned beneficial use site at Egg Point Island was no longer needed. None of these changes were “substantial,” the Corps determined, because the 2009 EA had found that none would cause serious impacts to the environment. With respect to “significant new circumstances or information,” the Memorandum of Record noted both the oil spill of 2004 and the recent surveys showing an expansion of the short-nose sturgeon in the region. But again, relying on the EA and a 2009 Biological Assessment the agency prepared for NMFS, the Corps concluded neither development was “significant” because neither would cause adverse environmental consequences not anticipated in the SEIS. The Corps was justified in relying on these recent and thorough reports. See supra. The agency’s conclusion that 15 C.F.R. § 930.46(a) had been satisfied, and that no supplemental consistency determinations were required, was neither arbitrary nor capricious. VI. For over twenty years, the Corps has devoted substantial efforts to evaluating the proposed five foot deepening project for the Delaware River. It has published three comprehensive NEPA reports, received multiple rounds of public comments, and had immeasurable communications with the relevant state and federal agencies. Its decision in 2009 to proceed with the project was consistent with NEPA, the CWA, and the CZMA. Accordingly, we will affirm the judgments of the District Courts of New Jersey and Delaware. . See, e.g., H.R.Rep. No. 111-278, at 50 (2009) (Conf. Rep.) (appropriating $4.8 million to the deepening project in the Energy and Water Development and Related Agencies Appropriations Act of 2010); H.R.Rep. No. 109-275, at 73 (2005) (Conf. Rep.) (approving $2.25 million to the project in the Energy and Water Development Appropriations Act of 2006). In 1999 and 2000, Congress also supported the project by extending credit to non-federal entities for costs related to design, construction, and disposal. See Water Resources Development Act of 2000, Pub. L. No. 106-541, § 306, 114 Stat. 2572 (2000) ("The project for navigation, Delaware River Main-stem and Channel Deepening ... is further modified to authorize the Secretary to credit toward the non-Federal share of the cost of the project ... the costs incurred by the non-Federal interests in providing additional capacity at dredged material disposal areas ... ”); Water Resources Development Act of 1999, Pub. L. No. 106-53, § 308, 113 Stat. 269 (1999) (same). Most recently, the U.S. House of Representatives approved $29.45 million for fiscal year 2013. See H.R.Rep. No. 112-462, at 29 (2010). . These modifications were primarily to the project’s disposal plan. In the EIS, the Corps assumed it would deposit the dredged sediment from the project at two existing and three new disposal sites. By 1997, the Corps planned to use four, rather than three, new disposal facilities. The Corps also embraced a proposal to store dredged material at four "beneficial use” sites in Delaware and New Jersey — at Kelly Island, DE, for wetlands restoration; at Egg Point Island, NJ, also for wetlands restoration; and at Broadkill and Slaughter Beaches, DE, for beach nourishment. The sand for Broadkill Beach would first be stockpiled elsewhere. . The bi-state board of the DRPA came to stalemate at its meeting in December 2005, when the New Jersey commissioners on the board refused to endorse the deepening project and Pennsylvania Governor Ed Rendell, Chairman of the DRPA, refused to adopt the agency's budget until the project was approved. See Geoff Mulvihill, Dredging Spat Deepens Between Two Neighbors, Associated Press, Dec. 31, 2005. For the next 18 months, the meetings of the DRPA were suspended. In May 2007, the two states finally reached a deal: DRPA would return the $38.5 million set aside for the project to Pennsylvania and New Jersey, half-and-half; DRPA would hand jurisdiction over the project to the Philadelphia River Port Authority ("PRPA”); Pennsylvania would proceed in collaboration with PRPA; and New Jersey would use its share of the returned money for local improvement projects. See Deborah Yao, Pa., N.J. Finally Agree on Delaware River Dredging Project, Associated Press, May 18, 2007. . The Corps provided the public four weeks for comments (initially, two weeks were provided but the Corps lengthened this in response to requests for more time). . The 2009 EA described the economic benefits of the deepening project as follows: The NED [National Economic Development] benefits quantified include the reduced costs of transportation realized through operational efficiencies (reduced lightering and lightloading), and the use of larger more efficient vessels, both resulting from navigation improvements at the harbor. Reduced transportation costs result in reduced production and distribution costs and thereby increase the net value of the national output of goods and services. Benefits will result from the decrease in the cost per ton for shipping commodities into or out of the Delaware River Port System. The 45 foot channel depth will improve the economic efficiency of ships moving through the Delaware River ports. No induced tonnage (i.e., commodity shifts from other ports) will take place with the proposed project deepening. The largest vessels in the port fleet, crude oil tankers, currently lighter at Big Stone Anchorage in the naturally deep water of the lower Delaware Bay. These vessels will continue to carry the same tonnage from foreign origin ports but will be able to operate more efficiently in the Delaware River with a deepened channel from reduced lightering. This will also result in a reduction in barge traffic needed to move the lightered crude oil upriver to the refineries. Also, a deeper channel depth will allow current dry bulk and container vessels to carry more cargo as well as allow a fleet shift in the charter dry bulk market. . DNREC did hold hearings on the Corps' application in December 2001, soliciting public comments and hiring an independent consultant to serve as a Hearing Officer. In 2003, the Hearing Officer published a report recommending that Delaware deny the application. But DNREC did not act on the recommendation for the next five years. . Delaware’s letter did not directly mention the issue of the water quality certification. . The reasoning for the District Court’s ruling was as follows. At a hearing in December 2009, the Corps claimed construction at Reach C was slated to begin imminently, but subsequent phases would not commence until December 2010. Meanwhile, despite its delay, DNREC had represented that it was prepared to complete its administrative review of the Corps’ application for the various state authorizations within a year. The District Court reasoned that while the Corps was likely to prevail on its claim that all federal statutes had been complied with, and so construction at Reach C should commence, there was no harm in enjoining the remainder of the project to enable DNREC to provide its decisions on the Corps' application. Given that future phases of the project were not slated to begin for a year anyway, and that DNREC claimed it would complete its review within that time, the partial injunction would facilitate federal-state coordination while not compromising the Corps' interests. . Appellants’ causes of action arise under federal law. Accordingly, the Delaware and New Jersey District Courts had jurisdiction under 28 U.S.C. § 1331 and we have jurisdiction under 28 U.S.C. § 1291. . In full, NEPA provides: [A]ll agencies of the Federal Government shall ... include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on — (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. § 4332(C). . For instance, there is no requirement that the agency use an EA to determine if a supplemental EIS is needed. In Marsh, the Supreme Court upheld a decision by the Corps not to issue a supplemental EIS when the agency had used a Supplemental Information Report ("SIR”) rather than an EA to assess new information. Marsh, 490 U.S. at 385, 109 S.Ct. 1851 (holding "the Corps acted within the dictates of NEPA in concluding that supplementation was unnecessary” when its SIR found "the new information was of exaggerated importance”). . In South Trenton Residents Against 29 v. Federal Highway Administration, 176 F.3d 658, 663 (3d Cir.1999), we ''assume[d] ... an agency's determination not to revise an Environmental Impact Statement must be 'reasonable under the circumstances.’ " (internal citations and quotation marks omitted; alteration in original). But Marsh unquestionably held that review in such contexts is for arbitrary or capricious action. Marsh, 490 U.S. at 375-76, 109 S.Ct. 1851 (''The parties disagree ... on the standard that should be applied by a court that is asked to review the agency’s decision. Petitioners argue that the reviewing court need only decide whether the agency decision was 'arbitrary and capricious,' whereas respondents argue that the reviewing court must make its own determination of reasonableness to ascertain whether the agency action complied with the law. In determining the proper standard of review, we look to § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706.... We conclude that review of the narrow question before us whether the Corps’ determination that the FEISS need not be supplemented should be set aside is controlled by the ‘arbitrary and capricious’ standard of § 706(2)(A).’’). . CEQ regulations mandate that agencies "publish a notice of intent in the Federal Register” at the earliest "practicable” moment regarding the preparation of an environmental impact statement, 40 C.F.R. § 1501.7; disseminate a copy of the draft or final EIS for public review before taking further action, id. § 1506.10(b)(1), (2); "[rjequest comments ton the EIS] from the public, affirmatively soliciting comments from those persons or organizations who may be interested or affected,” id. § 1503.1(a)(4); and "respond by one or more of the means listed below” to the comments received, id. § 1503.4(a). See also 33 C.F.R. §§ 230.19, App. C ¶¶ 1-2 (regulations governing draft and final EIS reports). . We recognize that the Corps’ General Counsel, Earl Stockdale, came to a different conclusion on the necessity of a FONSI. In an internal memorandum prepared for the agency, he reasoned that "all EAs must result in either a FONSI or an EIS with no exception” and so "without preparing of a FONSI, the Corps will simply not have completed its required NEPA process.” This conclusion was incorrect. The sole regulatory provisions cited by Stockdale to support his analysis were 40 C.F.R. § 1501.4(e) and 33 C.F.R. § 230.11. These provisions do require FON-SIs, but only for the initial EIS determination. See supra. Nonetheless, even if the FONSI requirement under Section 1501.4(e) attached, the Corps complied with it. The last page of the EA contained a signed declaration by Lieutenant Colonel Thomas Ticker, stating: "Based on the information contained in this EA and the referenced studies, I have concluded that.... the threshold for preparation of a Supplemental Environmental Impact Statement (SEIS) set forth at 40 CFR 1502.9(c) has not been met and that changes to the project or project conditions since the 1997 SEIS will not have a significant adverse effect on the human environment.” It was neither arbitrary nor capricious for the Corps to assume this signed declaration operated as a FONSI. The CEQ regulations define a FONSI as "a document by a Federal agency briefly presenting the reasons why an action ... will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared.” 40 C.F.R. § 1508.13. . The EA by definition was not a draft or final EIS, so was not covered by 40 C.F.R. § 1506.10(b). It also did not fall under either prong of 40 C.F.R. § 1501.4(e)(2) — it is not an action "which normally requires the preparation of an environmental impact statement” under § 1501.4(e)(2)(i), because Corps regulations provide an exclusive list of such actions at 33 C.F.R. § 230.6 and the project does not qualify; and it is not an action "without precedent” under § 1501.4(e)(2)(ii), because the Corps has maintained dredging operations in the Delaware River since 1910. Finally, the EA did not fall under 33 C.F.R. § 230.11. That section refers to reports produced by the Corps pursuant to specific regulatory programs, none of which apply here. See 33 C.F.R. §§ 263.10, 263.15, 263.19 (“Continuing Authorities Program”); id. § 230 App. A ("feasibility studies”); see also Procedures for Implementing the National Environmental Policy Act (NEPA), 53 Fed. Reg. 3120, 3124 (Feb. 3, 1988) (explaining that 33 C.F.R. § 230.11 requires a "30 day review of the EA” for the "types of actions” specified in the rule, none of which include dredging activities). Appellants appear to concede that none of the provisions mandating EA pre-circulation apply here. N.J. Br. at 44-46; River-keeper Br. at 79-81. . The record does not show the Corps’ decision to proceed with the project was “predetermined,” making the EA a sham review. See Riverkeeper Reply Br. at 22; NJ Reply Br. at 15. NEPA reviews “must be taken objectively and in good faith, not as an exercise in form over substance, and not as a subterfuge designed to rationalize a decision already made.” Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir.2000). We will invalidate projects where the "agency has impermissibly committed itself to a course of action before embarking upon a NEPA analysis.” Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 716 (10th Cir.2010). But there is no indication that the Corps "impermissibly committed itself” to the deepening project before completing the EA. It did not begin dredging or make an "irretrievable commitment of resources” while the environmental review was pending. Metcalf 214 F.3d at 1143. The one contract it entered into before the EA was finalized — the Project Partnership Agreement, which was signed with the Philadelphia Regional Port Authority on June 23, 2008 — expressly acknowledged that the Corps would "expeditiously construct the general navigation features ... applying those procedures usually applied to Federal projects, pursuant to Federal laws, regulations, and policies.” In other words, construction was made contingent on a successful NEPA review. . The Biological Assessment was prepared by the Corps in January 2009. In it, the Corps had concluded that any risks to short-nose sturgeon posed by the deepening project could be "minimize[d] and in some cases eliminate[d],” because "the majority of potential impacts would be related to the blasting activities ... scheduled to take place in December and January of project Years 1 and 2.” NMFS endorsed the Corps' findings in a Biological Opinion published in July 2009. The Biological Opinion found: "[I]n its entirety, the proposed action is likely to result in direct physical effects ... to no more than 57 shortnose sturgeon.... this number represents a very small percentage of the shortnose sturgeon population in the Delaware River.... [T]he proposed deepening project will not appreciably reduce the likelihood of survival ... for this species....” . On February 6, 2012, NMFS listed the New York Bight distinct population segment ("DPS”) of the Atlantic sturgeon as an Endangered Species. See Final Listing Rule for Gulf of Maine, New York Bight, and Chesapeake Bay Distinct Population Segments of the Atlantic Sturgeon in the Northeast Region, 77 Fed. Reg. 5880, 5909 (Feb. 6, 2012) (to be codified at 50 C.F.R. pt. 224). The New York Bight DPS includes sturgeon in the Delaware River. Id. at 5881, 5903, 5912. Because NMFS's endangerment listing postdated the events in this litigation, it has no bearing on the quality of the EA. Nonetheless, we observe that it is unlikely the February 2012 listing would change the EA's conclusion that no additional SEIS was necessary for the project because the EA treated the Atlantic sturgeon as a species of “special concern,” given its "candidate” species listing at that time, and analyzed its vulnerability in several discussions. . Appellants draw our attention to a recent Ninth Circuit decision in which the court invalidated a supplemental EIS for, in part, failing to "provide baseline data for many of the species, and instead plan[ning] to conduct surveys and studies as part of its post-approval mitigation measures[.]” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1083 (9th Cir.2011) (“Northern Plains ”). Northern Plains is inapposite. The report in Northern Plains was deficient because it sought to obtain baseline data, necessary for the agency’s approval of a project, from mitigation measures to be instituted after the project was underway. Id. at 1084. The agency put the cart before the horse. Here, the EA contained considerable baseline data on the Atlantic sturgeon, such as studies from 2003 through 2007, and relied on mitigation measures only to conclude the project could be deployed in a way that would avoid causing significant harm to the species. . New Jersey claims it flagged the need for updated sediment samples from bend-widening areas and for a modified elutriate analyses in its public comment from January 14, 2009. Accordingly, it claims the EA’s failure to include such data was indefensible, as demonstrated in the recent case of Sierra Club v. Van Antwerp, 661 F.3d 1147, 1157 (D.C.Cir.2011) (holding it would have been arbitrary and capricious for the Corps to issue a FONSI that failed to address a comment raised by an expert about a threatened species, and remanding for factfinding on that issue). But New Jersey's January 14 comment had not mentioned modified elutriate analysis. And while it called for updated sediment samples from bend-widening areas, the EA relied upon reports assembled in 2003, 2005 and 2007, ail of which included updated sediment samples. See supra. The Corps' judgment that these samples were sufficient to offer the agency a complete picture of water contamination merits deference. . When the Corps seeks to undertake a project that will release discharge, it does not go through the formality of issuing a permit to itself. Instead, it follows “all applicable substantive legal requirements” under Section 404, including an application of the Section 404(b)(1) guidelines. 33 C.F.R. § 336.1(a). . Riverkeeper argued the Corps violated CWA § 401(a), and that CWA § 404(r) did not apply, at summary judgment in both district courts. New Jersey raises this claim for the first time on appeal. See N.J. Br. at 60. A party's failure to raise an issue in district court typically results in forfeiture of the claim. Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1298 (3d Cir.1991) (holding “[i]t is well established that failure to raise an issue in the district court constitutes a waiver of the argument” unless certain "extraordinary circumstances” exist). We need not resolve whether to consider the Section 401(a) claim as to New Jersey because we find it to lack merit, when evaluated as to Riverkeeper. . The recent case of Board of Mississippi Levee Commissioners v. EPA, 674 F.3d 409 (5th Cir.2012) is consistent with our holding. In that case, the Fifth Circuit held that Section 404(r) of the CWA had not been triggered when a report provided to Congress lacked, among other things, a Record of Decision. The absence of a Record of Decision was one factor among several that persuaded the court to find the report had not been an agency’s "final EIS.” In addition to the lack of a Record of Decision, the agency’s transmittal letter to Congress plainly stated the report was not final. Id. at 414-15. Four months after the report was transmitted to Congress, the Chief of Engineers prepared a "final report" for the same project. Id. at 415. And because the original report sent to Congress was not in the record, the court could not determine whether it was labeled a "final” EIS. The Fifth Circuit held these factors collectively proved the document provided to Congress had not been a "final EIS” and accordingly, Section 404(r) had not been triggered. Id. at 419. Here, the EIS transmitted to Congress in June 1992 was entitled "Final Interim Feasibility Report,” was produced after a full notice and comment process, and was sent with a transmittal letter requesting the Section 404(r) exemption. . The record reveals some confusion as to whether the wetlands permit was necessary and as to whether the Corps’ 2001 application was made pursuant to the Wetlands Act or solely the Subaqueous Lands Act. Neither party has raised this issue on appeal. We assume both were required and that the Corps applied for both. It is also worth noting the permits mandated by the Subaqueous Lands and Wetlands Acts were not affected by the exemption codified at Section 404(r). Section 404(r) relieves projects "specially authorized” by Congress from the permitting requirements in Section 404. One of those requirements, codified at Section 401(a), is to obtain a state water certification. 33 U.S.C. § 1341(a)(1). But for a water certification to fall under Section 401(a), it must be issued by a state body operating a "permit program” that regulates "discharges into navigable waters” and that has been approved by the EPA. 33 U.S.C. § 1342(b). The Delaware Subaqueous Lands and Wetlands Acts create permit programs for the use of subaqueous lands and wetlands, neither of which is approved by the EPA under § 1342. Accordingly, the Delaware Subaqueous Lands and Wetlands Acts are "other state requirements” that do not fall under Section 404(r) and that holders of federally-issued permits are required to follow. See 33 C.F.R. § 323.4(d) ("Federal projects which qualify under the criteria contained in section 404(r) of the CWA are exempt from section 404 permit requirements, but may be subject to other State and Federal requirements."). . We need not decide whether Chevron deference should attach. Riverkeeper contends it should not, given the informality of the agency's action. Namely, it points out that the Corps did not engage in notice and comment rulemaking when it invoked Section 404(t), but acted on the basis of a Memorandum of Record. See United States v. Mead Corp., 533 U.S. 218, 230-31, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (holding "the want of" notice and comment procedures often compels in favor of not deferring to the agency). We need not settle this debate. At the least, Skidmore deference is due, and is sufficient to support the Corps' action. . Furthermore, the Corps had significantly broader authority in 1899 than Riverkeeper acknowledges. The Rivers and Harbors Act contains twenty-eight pages of appropriations to the Corps for conducting "improvement” projects in the nation's waterways. See Rivers and Harbors Act of 1899, ch. 425, 30 Stat. 1121, 1121-1149 ("Be it enacted ... [tjhat the following sums of money be, and are hereby, appropriated ... to be expended under the direction of the Secretary of War and the supervision of the Chief of Engineers, for the construction, completion, repair, and preservation of the public works hereinafter named: Improving Moosabec Bar, Maine: Completing improvement, eleven thousand dollars.... For improvement of the Buffalo entrance to Erie Basic and Black Rock Harbor, New York.... Improving New York Harbor, New York ... by a deep channel, two thousand feet wide and forty feet deep from the Narrows ... one million dollars ... Improving Port Chester Harbor, New York: Twenty-five thousand dollars, to be expended in enlargening the channel below and up to Town Dock to a depth of twenty feet.... Improving the outer bar, Brunswick Georgie: C.P. Goodyear, the contractor with the Government of the United States, to deepen the outer bar of Brunswick.... Improving harbor at Pensacola, Florida: ... seventy thousand dollars ... to be used toward securing a channel depth of thirty feet.... Improving harbor at Mobile Alabama: ... with the view of ultimately securing a channel twenty-three feet deep and one hundred feet wide at the bottom. ... Improving Galveston Ship Channel ... by dredging or otherwise.... Deepening the channel from Galveston Harbor to Texas City, Texas....” (emphases added)). Accordingly, even if Sections 511 or 404(t) of the CWA circumscribed the Corps' "maintain navigation” authority to its historical authorities in 1899, the latter included the execution of improvement and channel deepening projects.

Sokol v. Kennedy

RICHARD S. ARNOLD, Circuit Judge. David Sokol, a landowner, appeals from a summary judgment upholding the boundaries for the Niobrara Scenic River area set by the National Park Service under the Wild and Scenic Rivers Act. The District Court held that the Park Service correctly chose which land adjacent to the Niobrara would be included within the protections of the Act. The Park Service, however, did not select the land on the basis of the “outstandingly remarkable values” standard required by the Act. We therefore reverse and remand. I. The Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271 - 1287, protects selected free-flowing rivers that “with their immediate environments, possess outstandingly remarkable ... values.” 16 U.S.C. § 1271. In 1991, Congress amended the Act to designate a portion of Nebraska’s Niobrara River as a protected Scenic River. The amendment did not specify which or how much land in the immediate environment of the Niobrara River was ultimately to be included within the Act’s protections. Instead, it directed the Secretary of the Interior, pursuant to 16 U.S.C. § 1274(b), to select detailed boundaries for protected land in the Niobrara River area, totaling no more than 320 acres per river mile. The Secretary delegated this authority to the Park Service. In 1992, the Park Service began the decision-making process to establish boundaries for the river area, and to generate the required General Management Plan and Environmental Impact Statement. This process was thorough and lengthy, lasting over four years. The Park Service formed a planning team, led by Natural Resource Specialist William Con-rod, to gather and analyze information on the Niobrara River area from a wide variety of public and private sources. The planning team also developed its own information from personal observations and field studies of resources along the river. The planning team assembled a large amount of information that was used to create “resource maps.” The team used these maps to develop boundary alternatives, seeking to maximize protection of various resources in the area. The Park Service also organized the Niobrara Scenic River Advisory Commission, a body of local residents, businessmen, environmental groups, and state officials, that contributed to the process and received public comment on the planned boundaries. The Park Service did not evaluate the land adjacent to the Niobrara River in terms of “outstandingly remarkable” values. Instead, from the beginning, the planning team analyzed the Niobrara River area in terms of “significant” and “important” values. Park Service officials were more comfortable with the significance and importance standards because they were familiar with them from other regulatory contexts. Additionally, the planning team felt that the term, “outstandingly remarkable,” was not clear and was relevant only to the selection of new rivers for inclusion in the Wild and Scenic Rivers System. Nevertheless, the planning team purported to adopt the outstandingly-remarkable-values standard retroactively after Mr. Sokol complained, at the September 15, 1995, meeting of the Advisory Commission, that the significant-values standard violated the Act. The planning team’s documents and field notes before Mr. Sokol’s complaint spoke only in terms of significance or importance. Subsequently, the draft and final boundary alternatives, published by the team in 1996, explained that “significant” and “important” were being used merely as synonyms for “outstandingly remarkable.” By the end of the process, the Park Service claimed to have dropped the significant/important-values standard altogether, and the Park Service’s final Record of Decision speaks only in terms of “outstandingly remarkable values.” In 1997, Mr. Sokol brought this suit in the District Court. He alleged that the Park Service had violated the Act by failing to apply an outstandingly-remarkable-values standard when selecting boundaries for the Niobrara Scenic River area. The defendants replied, first, that this standard did not apply because the Park Service had complete discretion under the Act to establish the boundaries as it saw fit. Second, they maintained that even if the outstandingly-remarkable-values standard was required, the Park Service had in fact used it. The District Court granted summary judgment for the defendants, upholding the decision of the Park Service. Mr. Sokol brought this appeal. We reverse and remand. II. Under the Administrative Procedure Act, we limit our review of the Park Service’s administrative action to a determination of whether the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The Park Service failed to apply the relevant statutory authority in making its decision. It selected land for inclusion in the Niobrara Scenic River area without identifying and seeking to protect outstandingly remarkable values, as required by the Wild and Scenic Rivers Act. We reject the defendants’ first argument that the Park Service was free to select land for the river area as it saw fit, without regard for the outstandingly remarkable values that Congress sought to protect in the Niobrara. The defendants rely on 16 U.S.C. § 1274(b), pursuant to which Congress charged the Park Service to establish detailed boundaries. They argue that Section 1274(b) allows them complete discretion in choosing land, within the Section’s acreage limitation. While it is true that Section 1274(b) itself says nothing to the contrary, the defendants’ argument completely ignores controlling language elsewhere in the Act. Each river area in the Wild and Scenic River System must be “administered in such manner as to protect and enhance the values which caused it to be included” in the System. 16 U.S.C. § 1281(a). The values which cause a river area to be included in the System are the “outstandingly remarkable ... values” of the river and of the related land adjacent to it. Selecting detailed boundaries is an administrative act; it is an alteration of the river area already established by Congress. As an administrative act, Section 1281(a) applied to the Park Service’s selection of boundaries. Far from exercising complete discretion under that Section, the Park Service was required to make the boundary selection to protect and enhance the outstandingly remarkable values that caused the Niobrara River area to be included in the System. Accordingly, we reject the defendants’ contention that the Wild and Scenic Rivers Act provided no meaningful standard for the selection of detailed boundaries; this interpretation conflicts with the administrative duty clearly set out in Section 1281(a). It also contradicts the Park Service’s own prior interpretation of the Act. The defendants argue correctly that the Park Service was not required to include only land with outstandingly remarkable values. The Park Service’s statutory duty was to establish detailed boundaries, within the acreage limits of Section 1274(b), that would protect and enhance the outstandingly remarkable values that caused the river area to be included in the Wild and Scenic Rivers System. This duty does not always bar the administering agency from including unremarkable land; indeed, the Act could require such inclusion where necessary to protect outstandingly remarkable resources, e.g. because of the need for buffer zones around resources or because of discontinuities in a resource’s locations. Equally, the Act does not require that the boundaries encompass all the outstandingly remarkable resources; this might be impossible given the acreage limitation. Neither categorical alternative is required by our decision. The Act allows the administering agency discretion to decide which boundaries would best protect and enhance the outstandingly remarkable values in the river area, but it must identify and seek to protect those values, and not some broader category. We also reject the defendants’ second argument — -that the Park Service did, in fact, identify and seek to protect the outstandingly remarkable values of the Niobrara River area. As the defendants admit, the planning team consistently analyzed resources in the Niobrara for their “significance” and “importance.” These terms are not synonymous with “outstandingly remarkable.” Significance and importance are much broader terms. They include far more than the “unique, rare, or exemplary” qualities that the defendants themselves have recognized are denoted by the outstandingly-remarkable-values standard. See Technical Report of the Interagency Wild and Scenic Rivers Coordinating Council, J.A. at 79. . In any given group, many things can be significant or important. By definition, however, only a few things can be rare or exemplary, and only one can be unique. The Park Service did not choose the terms “significance” and “importance” because they were synonyms for “outstandingly remarkable.” These terms were derived from a separate legal standard used by Park Service officials to evaluate potential park lands, a standard with which they were more familiar than the Wild and Scenic River Act’s outstandingly-remarkable-values standard. J.A. at 48. The defendants now contend that while the terms of the park standard were used, the planning team meant “outstandingly remarkable” when it used them. But the team captain, who was responsible for interpreting the Act, stated that the team used significance and importance in the same sense that these terms were used to evaluate potential parks. J.A. at 61-62. Since no one suggests that the park standard is the same as the Act’s standard, it is hard to understand the defendants’ contention that all these terms have meant the same thing all along. Instead, we conclude that the Park Service simply used the wrong standard from the beginning. The values identified by the Park Service for protection likewise demonstrate that the planning team confused the standards appropriate for choosing potential parks and for selecting boundaries under the Wild and Scenic Rivers Act. In 1992, the planning team set out in “significance statements” the values it would seek to protect in selecting boundaries. In addition to using the significance standard to evaluate resources along the Niobrara, the team noted that the same “significance statements” should “be repeated again” when “included in the national park study.” J.A. at 1342. The record provides no evidence that the planning team later corrected its confusion, or that it assigned a special meaning to the terms “significance” and “importance,” equivalent to the statutory terms. Mr. Conrod, the team captain, admitted no such conscious decision had ever occurred. Indeed, Mr. Con-rod went so far as to express what almost amounted to contempt for the terms of the statute. Officials of the Executive Branch, like judges, are free to have their own private view of what Congress has said and done. But they are not free to put these views into practice. A statute is the command of the sovereign. The Park Service must follow it. Instead, Park Service officials applied the standard with which they were more familiar from other regulatory contexts, ignoring the outstandingly-remarkable-values standard required under the Wild and Scenic Rivers Act. The defendants argue that whatever errors may have been made in the initial process were corrected in the draft and final boundary alternatives and in the Record of Decision. It is true that, after Mr. Sokol complained that the wrong standard was being used, editorial changes were made to the draft and final boundary alternatives. Specifically, a few sentences were added noting that “significant” and “important” were to be understood to mean outstandingly remarkable. These post hoc re-definitions, however, were not sufficient to correct past errors upon which the boundary alternatives and Record of Decision were based. Not surprisingly, the record shows that the re-definitions in the final year of the process did not affect the field resource evaluations made, years earlier, by the planning team under the wrong standard, or resource evaluations provided, years earlier, by third parties who were also given the wrong standard. No attempts at re-analysis of information or judgments accompanied these redefinitions. After Mr. Sokol’s complaints, the team changed a few sentences in the boundary alternatives but never reexamined its prior work in light of the new standard. Apparently, the planning team was never convinced that the outstandingly-remarkable-values standard was correct. Even after the Record of Decision had been published, Mr. Conrod stated that the outstandingly-remarkable-values standard did not apply to the selection of boundaries, but applied only initially “in the context of consideration of new sites.” J.A. at 48. The Park Service analyzed the river area under the wrong standard, failing to use the outstandingly-remarkable-values standard required by the Act in selecting boundaries; it failed to correct its initial mistakes. Therefore, we reverse the decision of the District Court on this issue, and hold that the Park Service’s boundary selection violated its statutory duty under the Act. Mr. Sokol also argues that the Park Service failed to establish sufficiently detailed boundaries. Mr. Sokol argues that the Park Service was required, under 16 U.S.C. § 1274(b), to mark or post the boundaries physically along the river. This argument fails. The Act expressly provides that information concerning the location of the boundaries will be made available for public inspection on maps in the offices of the administering agency. 16 U.S.C. § 1274(c). Section 1274(b) makes no mention of physical posting, and its language is completely satisfied by the detailing of boundaries on maps, made available to the public. On this point, we agree with the District Court. III. Accordingly, we reverse and remand to the District Court with instructions to remand to the Park Service. On remand, the Park Service should select boundaries that seek to protect and enhance the outstandingly remarkable values of the Niob-rara Scenic River Area. . The Niobrara Scenic River Designation Act of 1991, Pub.L. No. 102-50, 105 Stat. 254, codified at 16 U.S.C. § 1274(a)(117). .On designation, however, provisional boundaries were immediately set at one-quarter mile from the sides of the river banks. 16 U.S.C. § 1275(d). Provisional boundaries remain in place until amended by the action of the administering agency. . "The agency charged with the administration of each component of the national wild and scenic rivers system ... shall ... establish detailed boundaries therefor (which boundaries shall include an average of not more than 320 acres of land per mile....)” 16 U.S.C. § 1274(b). . A river area may be "caused to be included” in the System, for the purposes of Section 1281(a), only if it contains "a free-flowing stream and related adjacent land area that possesses one or more of the values referred to in Section 1271 of this title.” 16 U.S.C. § 1273(b). Section 1271 provides in turn: "... certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved ... [and] they and their immediate environments shall be protected....” Thus, the "values" referred to in Section 1281(a) are the “outstandingly remarkable” values set out in Section 1271. .Once a river area is included by Congress in the System, river-area boundaries are automatically established, on a provisional basis, one-quarter mile from the river’s banks. 16 U.S.C. § 1275(d). An agency's selection of detailed boundaries does not bring the river area into existence; the river area exists before agency action. . Such an open-ended and standardless interpretation of the Act would also leave defendants open to a claim of unconstitutional delegation of legislative power. We choose to construe the Act in such a way as to avoid any such constitutional question. . See Memorandum of National Park Service Associate Director, Denis Glavin, J.A. at 1522. (Rejecting the bank-to-bank boundary alternative because it would be inconsistent with the Park Service's duty under the Act to protect outstandingly remarkable values in adjacent land.) . See, e.g., 16 U.S.C. § la-5(c)(3)(C) ("Each study ... shall identify what alternative ... would in the professional judgment of the Director of the National Park Service be most effective and efficient in protecting significant resources....”). It was a standard also familiar to Park Service officials from the preparation of Environmental Impact Statements. See 42 U.S.C. § 4332(C) (requiring a federal agency to prepare an EIS for “major Federal actions ... significantly affecting the quality of the human environment....”) (emphasis added). . “We don't walk around speaking in the terms Congress writes laws and that outstandingly remarkable.... There’s nothing special or magic about those two words. It’s just something that got put in an act of Congress, and probably by kind of a committee process, it’s terrible prose, it obscures communication.” J.A. at 50. . In addition to using the wrong standard, there is evidence in the record to suggest that the Park Service was not selecting land to protect the river area's resources but simply to maximize the number of acres included in the system. See, e.g., Draft Boundary Alternative Memorandum, Sept. 13, 1993, J.A. at 1387 (preferred boundary alternative includes “maximum statutory acreage,” compared with others which include only "critical resources.”) Particularly troubling was the decision to include more than 10,000 acres of "hypothetical” viewshed, land that a canoeist on the river would see if one assumed that there were no trees or foliage along the banks. This was a massively counterfactual assumption; the Park Service knew that 60 to 70 per cent, of the Niobrara River is screened by dense trees and foliage. J.A. at 2232. Much of the land included in this viewshed was ordinary, unstriking, and apparently unnecessary to protect the scenic values of the river. J.A. at 2231. The Park Service may include only land which possesses outstandingly remarkable resources or which is actually necessary to protect such resources.

Columbia River Gorge United-Protecting People & Property v. Yeutter

SCHROEDER, Circuit Judge: This is an action challenging the constitutionality of the Columbia River Gorge National Scenic Area Act, 16 U.S.C. §§ 544-544p which was enacted in 1986. Its purposes were to protect the economy and enhance the scenic, cultural, recreational and natural resources of the Columbia River Gorge. The Gorge occupies a uniquely beautiful and rich area in Oregon and Washington bordering the Columbia River. The Act contemplated interim management of the area by the Secretary of Agriculture and long-term management by the Columbia Gorge Commission, an agency to be established by a compact between the two states. 16 U.S.C. § 544c. The Act set forth in some detail the manner in which the Commission was to function and conditioned Congress’ consent to the Compact upon compliance with those conditions. The Compact has now been entered into and the Commission is functioning according to the plan outlined in the Act. The plaintiffs in this action, individual property owners, an organization called the “Columbia Gorge United-Protecting People and Property,” and members of that organization, claimed they were adversely affected by the operation of the Commission. They sued both the Secretary of Agriculture and the Commission alleging that the Act violated both the Federal and State Constitutions. Following a hearing on the merits, the district court granted summary judgment in a thoughtful opinion rejecting all of the plaintiffs’ claims. Columbia River Gorge United is the sole appellant in this action, as it is the only party below that listed its name on the notice of appeal, thereby complying with the specificity requirement of Fed.R.App.P. 3(c). See Benally v. Hodel, 913 F.2d 1464, 1467 (9th Cir.1990). In this appeal Columbia River Gorge United renews its contentions that the Act violates the United States Constitution, alleging specifically that the Act violates the Tenth Amendment, the Commerce, Property and Compact Clauses and the Fifth Amendment entitlement to equal protection. Underlying all of appellant’s contentions is the recurring theme that the Act and the Compact are contrary to the true wishes of the states of Oregon and Washington, and that the states were coerced into accepting conditions laid down by Congress. The Commission in this case is represented by the Attorneys General of both states who vigorously maintain that both the Act and the Compact were a product of mutual cooperation between federal and state governments to achieve a result satisfactory to both states. To the extent that appellant’s arguments rest upon issues of fact with respect to coercion, they have been resolved against the plaintiffs by the district court in findings which are not clearly erroneous. We therefore deal only with issues of law. OPERATION OF THE ACT The Act establishes a “partnership between the Federal Government, the States of Oregon and Washington, and the nearly 50 units of local government within the Columbia River Gorge for the purpose of protecting and enhancing” property and resources within the Gorge. 132 Cong.Rec. 29496 (Oct. 8, 1986) (remarks of Senator Hatfield). The Act accomplishes this goal by creating the Columbia River Gorge National Scenic Area and ratifying an interstate compact between Washington and Oregon which regulates land use and development activities within the Scenic Area. The Act calls for the creation of a thirteen member Commission composed of three residents appointed by the three Oregon Gorge counties, three residents appointed by the three Washington Gorge counties, three members appointed by each state governor and one non-voting Forest Service employee appointed by the Secretary of Agriculture. 16 U.S.C. § 544c. Once created, the Commission is charged with the development of a management plan that regulates, through land use ordinances, the development and use of various categories of land within the Scenic Area. In furtherance of this purpose, the Commission is, within the first year of its establishment, to complete a resource inventory, an economic opportunity study, and a recreational assessment of the Scenic Area. 16 U.S.C. § 544d(a). Within two years the Commission is to complete land use designations for privately owned land within the Scenic Area. 16 U.S.C. § 544d(b). The Secretary of Agriculture will, during this same period, take corresponding steps with respect to federally owned land within the Scenic Area. 16 U.S.C. § 544f. Once these tasks are accomplished, the Commission is to develop and adopt a management plan for the Scenic Area. Under the Act, the Plan must include land use designations, management direction for the use of federal land, and guidelines for adoption of land use ordinances. After the Plan is approved by the Secretary of Agriculture, counties will be instructed to submit land use ordinances to the Commission for approval. If a county fails to submit an acceptable plan, the Commission is authorized to develop and implement a county plan that is consistent with the overall management plan. Under the Act, and the resulting Compact, all land use within the Columbia River Gorge Scenic Area, whether private, federal or local, will be consistent with the management plan developed by the Commission. Congressional consent to this interstate compact is expressly contingent upon inclusion in the Compact of all powers and responsibilities assigned to the Commission under the Act. 16 U.S.C. § 544o(d). The Columbia River Gorge Compact was ratified by Oregon and Washington in 1987. The Compact incorporated the Gorge Act and established the Commission in accordance with the federal statute. Or.Rev.Stat. § 196.150 (1987); Wash.Rev.Code § 43.97.-020 (1987). DISCUSSION We deal first with the appellant’s contentions that the Act violates the authority granted to Congress- in both the Commerce and Property Clauses of the Constitution and is therefore outside the scope of the legislative power granted to Congress by the United States Constitution. The Commerce Clause, Article I, section 8, of the Constitution provides that Congress “shall have Power ... to regulate Commerce with foreign Nations and among the several States.” The Clause has, of course, been interpreted expansively to authorize regulation not only of channels and instrumentalities of interstate commerce but of “activities, affecting commerce.” See, e.g., Hodel v. Virginia Surface Mining and Reclamation Ass’n, 452 U.S. 264, 276-277, 101 S.Ct. 2352, 2360-61, 69 L.Ed.2d 1 (1981). Similarly, activity that is seemingly insignificant may be regulated where one individual’s “contribution, taken together with that of many others similarly situated, is far from trivial.” Wickard v. Filburn, 317 U.S. 111, 127-28, 63 S.Ct. 82, 90-91, 87 L.Ed. 122 (1942). The district court correctly disposed of appellant’s contention that the Act goes beyond this expansive power. The district court found, and appellant does not dispute, that among Congress’ concerns was a desire to preserve the beauty of the area for those who would travel to use the rivers and mountains in it for recreation, thus directly causing interstate travel. Congress also intended to regulate competing economic activities within the scenic area that are activities directly affecting interstate commerce. These activities include logging and fishing. Moreover, and perhaps most important, the area itself is unique in that it consists of portions of two states bisected by a navigable waterway. In such an area, virtually all activities affecting the land, the economy, the environment, or the resources have interstate ramifications. See United States v. Appalachian Elec. Power Co., 311 U.S. 377, 426, 61 S.Ct. 291, 308, 85 L.Ed. 243 (1940) (Congressional authority to regulate rivers is not limited to control for navigation, but is as broad as the needs of commerce and extends to flood protection, watershed development, and the recovery of cost of improvements). See also Boone v. U.S., 944 F.2d 1489, 1492-93 (9th Cir.1991) (federal government’s authority to regulate navigable waters is coextensive with and parallel to expansive power to regulate commerce generally). Interstate bodies of water are frequently the subject of interstate compacts. See, e.g., Tahoe Regional Planning Compact, Pub.L. No. 91-148, 83 Stat. 360 (1969); Delaware River Basin Compact, Pub.L. No. 87-328, 75 Stat. 688 (1961); Upper Colorado River Basin Compact, 63 Stat. 31 (1949). There is thus no merit to the appellant’s claim on appeal that by upholding the constitutionality of the Compact, we are upholding the authority of Congress to impose zoning regulations throughout the country. As the district court noted, Congress found this area to be one of critical national significance. Appellant also contends that the Act goes beyond the grant of authority to Congress under the Property Clause of the Constitution which provides that Congress has power “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” U.S. Const., art. IV, § 3, cl. 2. Appellant argues that even though some seventeen percent of the land in the affected area is federally owned, Congress may not regulate development in the entire area. The district court agreed with appellees that development on non-federally owned land has a sufficient effect on federally owned land to justify regulation of such development under the Property Clause. They relied upon Supreme Court decisions which upheld federal regulation of non-federal land where the regulated activity on the non-federal land affected the activities on the federal land. See Kleppe v. New Mexico, 426 U.S. 529, 538, 96 S.Ct. 2285, 2291, 49 L.Ed.2d 34 (1976); Camfield v. United States, 167 U.S. 518, 525-26, 17 S.Ct. 864, 867-67, 42 L.Ed. 260 (1897). In addition, the United States points out that it is difficult to see how the entire Act could be struck down by an attack on only those portions affecting non-federal land, since the Act has a sever-ability clause. We need not determine, however, whether all or a portion of the Act would go beyond the reach of Congress’ power under the Property Clause. We have already determined that the Act is within Congress’ power under the Commerce Clause. For a similar reason, the Act cannot be a violation of the Tenth Amendment. Since the Act is within the powers granted to Congress under the Commerce Clause, it cannot constitute an exercise of a power reserved to the states. We therefore need not address the federal government’s position that the appellant lacks standing to assert the rights of the states under the Tenth Amendment. We then turn to the appellant’s contention that the regulatory system is a product of a compact that is not valid under the Compact Clause. Under the Compact Clause, U.S. Const., art. I, § 10, cl. 3, any interstate agreement that increases the political power of states must be approved by Congress. “The relevant inquiry must be one of impact on [the] federal structure.” United States Steel Corp. v. Multistate Tax Comm’n., 434 U.S. 452, 471, 98 S.Ct. 799, 812, 54 L.Ed.2d 682 (1978). All parties to this appeal agree that the Compact between Washington and Oregon, pursuant to which the Commission was established to oversee the Columbia River Gorge Area, is one which requires such congressional consent. Through the Act, Congress consented in advance to this Compact on the condition that the Compact contain certain specific provisions. Advance consent with requirements attached is itself perfectly valid, as the Supreme Court has held. Cuyler v. Adams, 449 U.S. 433, 440-41,101 S.Ct. 703, 707-08, 66 L.Ed.2d 641 (1981). This court has recently reaffirmed that Congress may condition consent upon a compact containing specific terms, including the creation of a compact agency. See Seattle Master Builders v. Pacific N.W. Elec. Power, 786 F.2d 1359, 1364 (9th Cir.1986), cert. denied, 479 U.S. 1059, 107 S.Ct. 939, 93 L.Ed.2d 989 (1987). The only distinction between Seattle Master Builders and this case is the appellant’s assertion that this Act specifies in greater detail the provisions of the Compact it authorizes than the Pacific Northwest Power Planning and Conservation Act at issue in Seattle Master Builders. The fundamental objection to both this Compact and that in Seattle Master Builders, however, is essentially the same. Moreover, there are distinct benefits from the kind of detailed advance planning between states and the federal government that led to this Compact. Such planning is fully consistent with the purpose of the Compact Clause. Regional arrangements may represent a necessary method for handling problems, süch as transportation, waste disposal and environmental preservation, which because of their interstate nature cannot be handled by individual states acting alone. Professors Landis and Frankfurter, in their seminal article on the Compact Clause, strongly recommended the Compact device for “fashioning new instruments adapted to new situations.” Frankfurter & Landis, The Compact Clause of the Constitution — A Study in Interstate Adjustments, 34 Yale L.J. 685, 688 (1925). Foresighted in their thinking, the authors understood that “imaginative adaptation of the compact idea should add considerably to resources available to statesmen in the solution of problems presented by ... growing interdependence.” Id. at 729. As we pointed out in Seattle Master Builders, the compact has been used in a variety of unique situations to promote both state and federal interests: “An unusual feature of a compact does not make it invalid.” Seattle Master Builders, 786 F.2d at 1364. The Columbia River Gorge Compact is just such an innovative solution to a difficult interstate land preservation problem. The appellant finally contends that the Act violates the Fifth Amendment entitlement to equal protection because Gorge area residents must submit to local land use decisions made by non-elected officials, while state residents outside the Gorge area are subject to land use regulation only by elected officials. Insofar as the appellant argues that the Act violates electoral rights guaranteed by the state constitutions or local laws, this challenge fails. When Congress, acting within constitutional limits, creates federal law, state law is nullified to the extent that compliance with both the federal and the state law would be a physical impossibility. Hillsborough County, Fla. v. Auto Med. Labs., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985). The equal protection challenge lodged by the appellant is based upon geographic discrimination. Residents outside the Gorge area get to vote for their land-use planners, while those inside the Gorge area do not. The equal protection clause, however, is not violated when a geographic area is singled out for different treatment. The Supreme Court has held that “there is no rule that counties, as counties, must be treated alike; the Equal Protection Clause relates to equal protection of the laws ‘between persons as such rather than between areas.’ ” Griffin v. County School Bd. of Prince Edward County, 377 U.S. 218, 230, 84 S.Ct. 1226, 1233, 12 L.Ed.2d 256 (1964) (quoting Salsburg v. Maryland, 346 U.S. 545, 551, 74 S.Ct. 280, 283, 98 L.Ed. 281 (1954)). Different treatment of different areas is permissible, provided there are reasons for such treatment that do not reflect unconstitutional motivations. Griffin, 377 U.S. at 231, 84 S.Ct. at 1233. Preservation of the Columbia River Gorge Area is a permissible Congressional objective and a valid exercise of the power delegated to Congress under the Commerce Clause of the Constitution, AFFIRMED

County of Del Norte v. United States

SCHROEDER, Circuit Judge. This is a challenge to the Secretary of the Interior’s designation of parts of five northern California rivers as components of the national wild and scenic river system under the Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271-1287 (1982). Plaintiffs include several California counties and entities that represent timber and water interests. The district court entered summary judgment in favor of the plaintiffs, holding that the designation was defective because of procedural irregularities. The government appeals. Secretary of the Interior Cecil Andrus designated the rivers in January, 1981, during the waning hours of the Carter administration. As required by the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347 (1976 & Supp. V 1981), the designation followed completion of an Environmental Impact Statement (EIS). 42 U.S.C. § 4332. It is apparent from the record that the State of California, which originally proposed the designation, and the Heritage Conservation and Recreation Service (HCRS), the Department of the Interior division which processed the application, favored expeditious completion of all NEPA requirements so that action could be taken on the proposal before the Carter administration left office. It is equally apparent that those opposing designation, including the plaintiffs in this case, wished to delay final consideration by the Secretary until the new President took office. The principal issue before us is whether the designation is invalid because the HCRS failed to follow two EIS timing regulations, 40 C.F.R. §§ 1506.9 and 1506.10. The HCRS circulated copies of the EIS to commenting agencies and made copies available to the public on the same day as publication in the Federal Register of notice that the EIS had been filed with the Environmental Protection Agency (EPA). Applicable NEPA regulations call for notice in the Federal Register during the week following filing, rather than the same week. We conclude that any violation of these regulations must be regarded as insignificant and within the scope of another portion of the same series of regulations which provides that trivial violations shall not form the basis for independent causes of action. 40 C.F.R. § 1500.3 (1983). The deviation from requirements of the regulations here did not justify judicial invalidation of the designation. We therefore reverse. Resolution of the legal issue requires an understanding of the relationship between two of the regulations promulgated by the Council on Environmental Quality (CEQ) to ensure substantial compliance with the policies set forth in NEPA. The first regulation, 40 C.F.R. § 1506.9 (1983), requires that EISs be filed with EPA. It also provides that an EIS should not be filed with EPA before it is transmitted to commenting agencies and made available to the public. The second regulation, 40 C.F.R. § 1506.10 (1983), requires published notice in the Federal Register of the filing of an EIS that has been “filed [with EPA] during the preceding week.” 40 C.F.R. § 1506.-10(a). It provides that no decision on the proposed action may be made until at least 30 days after Federal Register publication. 40 C.F.R. § 1506.10(b)(2). The precise sequence of events at issue began on December 12, 1980. On that date the Department of the Interior filed with EPA the final EIS on the proposed designation. Upon filing the EIS, an agency official signed a form affidavit provided by EPA confirming that the statement was available for inspection by the public and had been circulated to interested agencies. In fact, on December 12, the statement was available only on a very limited basis and had not yet been sent to the agencies. By the following Wednesday, December 17, however, when the notice of filing was published, circulation to agencies had been completed and copies were available in quantity to the public. Plaintiffs actually received copies on this date. Secretary Andrus made the designation of the rivers on January 19, 1981, 33 days after the notice had been published. The sequence can be better visualized by use of the following time line: July 18, 1980: Governor of California proposes inclusion of rivers in the wild and scenic river system. September 16, 1980: Draft EIS filed with EPA. November 5, 1980: Presidential election. November 14, 1980: Some plaintiffs obtain temporary restraining order, extending comment period on the draft EIS. December 1, 1980: Temporary restraining order dissolved for lack of jurisdiction. December 5, 1980: Comment period on draft EIS is closed. Friday, December 12, 1980: HCRS official files final EIS and signs form verifying that distribution has been completed. Copies of the final EIS are available at agency offices in San Francisco and Washington, D.C. Monday, December 15, 1980: Distribution of final EIS by mail is completed. Wednesday, December 17, 1980: Final EIS is available in quantity to the public. Plaintiffs’ counsel obtain copies. Federal Register publishes notice that the final EIS has been filed with EPA. January 19, 1981: Secretary of the Interior makes the designation. The time line illustrates several important facts. First, the agency followed all timing requirements for preparation of the EIS itself. In fact, the comment period on the draft EIS lasted substantially longer than the minimum 45 days required by 40 C.F.R. § 1506.10(c). Second, the notice in the Federal Register, which signified filing with EPA, availability to the public, and circulation to commenting agencies of the EIS, did so accurately when it appeared on December 17. Finally, when the Secretary designated the rivers on January 19, more than the required 30 days following publication had passed. 40 C.F.R. § 1506.-10(b)(2). The irregularity in filing the notice before circulation therefore had no effect whatsoever on the plaintiffs’ opportunity to review the EIS after publication of the notice; nor did it affect the opportunity of the interested agencies and members of the public to review the statement for 30 days following publication. The “premature” publication about which the plaintiffs complain is significant only because delay of a week in publication would have prevented the matter from being decided by Secretary Andrus rather than by his successor. It was, however, in large part the actions of these plaintiffs, in obtaining a temporary restraining order in November, 1980, that made the “prematurity” significant. The order delayed approval of the EIS for seventeen days before the district court dissolved it for lack of jurisdiction. These facts are important to bear in mind in evaluating plaintiffs’ claim that the designation should be set aside because of the deviation from the sequence of distribution and filing called for in the CEQ regulations. The regulations in question are part of a series issued under the authority of NEPA to establish orderly procedures for administration of the Act. See National Environmental Policy Act — Regulations: Supplementary Information, 43 Fed.Reg. 55,978 (1978). Section 1500.1, which sets forth the purpose of the regulations, emphasizes that the procedures “must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.” 40 C.F.R. § 1500.1(b). Section 1500.3 of the regulations states that compliance with them should not be subject to judicial review until after final action on the proposal, and that the Council intended that “any trivial violation of these regulations not give rise to any independent cause of action.” 40 C.F.R. § 1500.3. The Council’s discussion of the regulations in the Federal Register during their drafting makes the purpose and history of the latter provision more explicit. Several comments had reflected concern that litigation over “trivial departures from the requirements established by the Council’s regulations” could result in judicial invalidation of agency actions. Stating that “[t]his is not the Council’s intention,” the CEQ added a sentence to the final version “to indicate the Council’s intention that a trivial departure from the regulations not give rise to an independent cause of action under law.” National Environmental Policy Act — Regulations: Comments and the Council’s Response, 43 Fed.Reg. 55,981 (1978). The regulations themselves thus contain an implicit admonition not to use claims of technical violations as tactics for delaying agency action. Any violation which in the end requires the agency action to be set aside must have borne some relationship to the decision making process itself. The question in this case then becomes whether the violation of the regulations, by publishing notice in the Federal Register on the day circulation of the EIS was complete rather than during the following week, is “trivial.” The purpose of 40 C.F.R. §§ 1506.9 and 1506.10 is to ensure that all pertinent information is available on proposed action for a period of 30 days before final action is taken, and that interested parties have notice of that availability. This 30-day period is not for the purpose of additional public comment and review, California v. Block, 690 F.2d 753, 771 (9th Cir.1982), but, in the words of one commentator, is “to allow a sufficient review period for the final statement and comments and views of commenting agencies ‘to accompany the proposal through the existing agency review process.’ ” 2 F. Grad, Treatise on Environmental Law § 9.02 at 9-113 (1980) (quoting 42 U.S.C. § 4332(2)(C)). The provision for publication the week following distribution and filing of the EIS is no more than a precautionary measure to ensure the desired result. Here, although the HCRS failed to take the precaution, the result was achieved in any event. All distribution requirements had been met by the time of publication: the required 30 days did elapse; the EIS materials were available and accompanied the EIS through the final review process during the 30-day period. The integrity of the decision making process within the government and the public’s opportunity to comment in accordance with all legal requirements were not compromised in any way. Although this is a case of first impression under these regulations, the trivial error provision is analogous to the general rule that insubstantial errors in an administrative proceeding that prejudice no one do not require administrative decisions to be set aside. 5 U.S.C. § 706 (1982). See, e.g., Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978) (“single alleged oversight on a peripheral issue ... must not be made the basis for overturning a decision properly made after an otherwise exhaustive proceeding”); Small Refiner Lead Phase-Down Task Force v. United States Environmental Protection Agency, 705 F.2d 506, 549 (D.C.Cir.1983) (even if agency fails to give notice in statutorily prescribed manner, actual notice renders error harmless); Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1022-23 (9th Cir.1980) (where failure to obtain comments from an agency under NEPA caused no prejudice, dam project would not be enjoined); Consolidated Gas Supply Corp. v. Federal Energy Regulatory Commission, 606 F.2d 323, 328-29 (D.C.Cir.1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980) (agency decision will not be overturned based on technical error if the agency would have reached the same decision absent the error); Greater Boston Television Corp. v. Federal Communications Commission, 444 F.2d 841, 851 (D.C.Cir.), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971) (supervisory function of the court requires it to intervene when the agency has not taken a “hard look” at issues, but court will not upset a decision because of errors that are not material). The district court relied upon Buschmann v. Schweiker, 676 F.2d 352 (9th Cir.1982), in which the court refused to excuse for lack of prejudice an agency’s failure to follow regulations. In Buschmann, however, the error was prejudicial to the plaintiffs and the review process because plaintiffs were denied notice and the opportunity to comment on a proposed agency rule. While we conclude that no violation of the law occurred that was sufficient to undermine the validity of the designation, we are both mindful and respectful of the district court’s concern about the HCRS staff member’s false declaration, when he filed the notice with EPA, that circulation requirements already had been met. The district court was of the view that the false statement itself was a blemish on the decision making process. There was, however, neither evidence nor any finding of bad faith in connection with the declaration. On appeal, plaintiffs properly have refrained from arguing that the falsity of the declaration has any independent significance. Plaintiffs argued strenuously before the district court that the Secretary in making the designation had failed to consider language from a California Superior Court opinion in a suit by many of these same plaintiffs to enjoin the California Governor from applying for federal designation of the rivers. County of Del Norte v. Brown, No. 292019 (Cal.Super.Ct. Sacramento Cty. 1980) (memorandum decision). The state court held that it had no power to prevent the application for wild and scenic river status under federal law. The court admonished, however, that in deciding on the designation the Secretary must take into account the state court’s conclusion that the rivers could not be “permanently administered” under the California Wild and Scenic Rivers Act, Cal.Pub.Res.Code § 5093.50-5093.69 (Cum.Supp.1984). The state’s ability to “permanently administer” the rivers under state law is a requirement for the federal designation at issue here. 16 U.S.C. § 1273(a)(ii). The district court found that the admonition had not been drawn to the Secretary’s attention and remanded to the agency under Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971) (“court must consider whether the decision was based on a consideration of the relevant factors”). Full review of the record reveals, however, that the decision was both paraphrased in a memorandum to the Secretary and attached in full as an addendum to that memorandum. The Secretarial Issue Document noted the state court opinion, but concluded that sufficient other state law protections existed to satisfy the permanent administration requirement under the federal act. The record thus belies the contention that the state court opinion was not considered. In the absence of clear evidence to the contrary, courts presume that public officers properly discharge their duties, including reading memoranda addressed to them. See 3 K. Davis, Administrative Law Treatise § 17.6 (2d ed. 1980) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 6-7, 71 L.Ed. 131 (1926)). Also disputed before the trial court was the question of standing. It is now apparent that at least some of the plaintiffs had standing, and we need not discuss the government’s arguments that the entire case should have been dismissed for lack of it. See California v. Block, 690 F.2d at 776 (governmental entities have standing if they are nearby the proposed action site geographically and are among the entities consulted during the EIS process; citing 42 U.S.C. § 4332(2)(C)). The judgment of the district court is reversed and the matter is remanded for entry of judgment in favor of the defendants. . The functions of the HCRS are now performed by the National Park Service. 46 Fed. Reg. 34,329 (1981). . 40 C.F.R. § 1506.9 (1983) states, in relevant part: Environmental impact statements together with comments and responses shall be filed with the Environmental Protection Agency ____ Statements shall be filed with EPA no earlier than they are also transmitted to commenting agencies and made available to the public. . 40 C.F.R. § 1506.10 (1983) states: (a) The Environmental Protection Agency shall publish a notice in the FEDERAL REGISTER each week of the environmental impact statements filed during the preceding week. The minimum time periods set forth in this section shall be calculated from the date of publication of this notice. (b) No decision on the proposed action shall be made or recorded ... by a Federal agency until ... (2) Thirty (30) days after publication of the notice described above in paragraph (a) of this section for a final environmental impact statement.

Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers

CHIEF Justice Rehnquist delivered the opinion of the Court. Section 404(a) of the Clean Water Act (CWA or Act), 86 Stat. 884, as amended, 33 U. S. C. § 1344(a), regulates the discharge of dredged or fill material into “navigable waters.” The United States Army Corps of Engineers (Corps) has interpreted § 404(a) to confer federal authority over an abandoned sand and gravel pit in northern Illinois which provides habitat for migratory birds. We are asked to decide whether the provisions of § 404(a) may be fairly extended to these waters, and, if so, whether Congress could exercise such authority consistent with the Commerce Clause, U. S. Const., Art. I, § 8, cl. 3. We answer the first question in the negative and therefore do not reach the second. Petitioner, the Solid Waste Agency of Northern Cook County (SWANCC), is a consortium of 23 suburban Chicago cities and villages that united in an effort to locate and develop a disposal site for baled nonhazardous solid waste. The Chicago Gravel Company informed the municipalities of the availability of a 533-aere parcel, bestriding the Illinois counties Cook and Kane, which had been the site of a sand and gravel pit mining operation for three decades up until about 1960. Long since abandoned, the old mining site eventually gave way to a successional stage forest, with its remnant excavation trenches evolving into a scattering of permanent and seasonal ponds of varying size (from under one-tenth of an acre to several acres) and depth (from several inches to several feet). The municipalities decided to purchase the site for disposal of their baled nonhazardous solid waste. By law, SWANCC was required to file for various permits from Cook County and the State of Illinois before it could begin operation of its balefill project. In addition, because the operation called for the filling of some of the permanent and seasonal ponds,, SWANCC contacted federal respondents (hereinafter respondents), including the Corps, to determine if a federal landfill permit was required under § 404(a) of the CWA, 33 U.S. C. § 1344(a). Section 404(a) grants the Corps authority to issue permits “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” Ibid. The term “navigable waters” is defined under the Act as “the waters of the United States, including the territorial seas.” § 1362(7). The Corps has issued regulations defining the term “waters of the United States” to include “waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce ....” 33 CFR § 328.3(a)(3) (1999). In 1986, in an attempt to “clarify” the reach of its jurisdiction, the Corps stated that § 404(a) extends to instrastate waters: “a. Which are or would be used as habitat by birds protected by Migratory Bird Treaties; or “b. Which are or would be used as migratory birds which cross state lines; or “c. Which are or would be used as gered species; or “d. Used to irrigate crops sold in interstate commerce.” 51 Fed. Reg. 41217. This last promulgation has been dubbed the “Migratory Bird Rule.” The Corps initially concluded that it had no jurisdiction over the site because it contained no “wetlands,” or areas which support “vegetation typically adapted for life in saturated soil conditions,” 33 CFR § 328.3(b) (1999). However, after the Illinois Nature Preserves Commission informed the Corps that a number of migratory bird species had been observed at the site, the Corps reconsidered and ultimately asserted jurisdiction over the balefill site pursuant to subpart (b) of the “Migratory Bird Rule.” The Corps found that approximately 121 bird species had been observed at the site, including several known to depend upon aquatic environments for a significant portion of their life requirements. Thus, on November 16,1987, the Corps formally “determined that the seasonally ponded, abandoned gravel mining depressions located on the project site, while not wetlands, did qualify as ‘waters of the United States’... based upon the following criteria: (1) the proposed site had been abandoned as a gravel mining operation; (2) the water areas and spoil piles had developed a natural character; and (3) the water areas are used as habitat by migratory bird [sic] which cross state lines.” U. S. Army Corps of Engineers, Chicago District, Dept. of Army Permit Evaluation and Decision Document, Lodging of Petitioner, Tab No. 1, p. 6. During the application process, SWANCC made several proposals to mitigate the likely displacement of the migratory birds and to preserve a great blue heron rookery located on the site. Its balefill project ultimately received the necessary local and state approval. By 1993, SWANCC had received a special use planned development permit from the Cook County Board of Appeals, a landfill development permit from the Illinois Environmental Protection Agency, and approval from the Illinois Department of Conservation. Despite SWANCC’s securing the required water quality certification from the Illinois Environmental Protection Agency, the Corps refused to issue a § 404(a) permit. The Corps found that SWANCC had not established that its proposal was the “least environmentally damaging, most practicable alternative” for disposal of nonhazardous solid waste; that SWANCC’s failure to set aside sufficient funds to reme-diate leaks posed an “unacceptable risk to the public’s drinking water supply”; and that the impact of the project upon area-sensitive species was “unmitigatable since a landfill surface cannot be redeveloped into a forested habitat.” Id., at 87. Petitioner filed suit under the Administrative Procedure Act, 5 U. S. C. § 701 et seq., in the Northern District of Illinois challenging both the Corps’ jurisdiction over the site and the merits of its denial of the § 404(a) permit. The District Court granted summary judgment to respondents on the jurisdictional issue, and petitioner abandoned its challenge to the Corps’ permit decision. On appeal to the Court of Appeals for the Seventh Circuit, petitioner renewed its attack on respondents’ use of the “Migratory Bird Rule” to assert jurisdiction over the site. Petitioner argued that respondents had exceeded their statutory authority in interpreting the CWA to cover nonnavigable, isolated, intrastate waters based upon the presence of migratory birds and, in the alternative, that Congress lacked the power under the Commerce Clause to grant such regulatory jurisdiction. The Court of Appeals began its analysis with the constitutional question, holding that Congress has the authority to regulate such waters based upon “the cumulative impact doctrine, under which a single activity that itself has no discernible effect on interstate commerce may still be regulated if the aggregate effect of that class of activity has a substantial impact on interstate commerce.” 191 F. 3d 845, 850 (CA7 1999). The aggregate effect of the “destruction of the natural habitat of migratory birds” on interstate commerce, the court held, was substantial because each year millions of Americans cross state lines and spend over a billion dollars to hunt and observe migratory birds. Ibid. The Court of Appeals then turned to the regulatory question. The court held that the CWA reaches as many waters as the Commerce Clause allows and, given its earlier Commerce Clause ruling, it therefore followed that respondents’ “Migratory Bird Rule” was a reasonable interpretation of the Act. See id., at 851-852. We granted certiorari, 529 U. S. 1129 (2000), and now reverse. Congress passed the CWA for the stated purpose of “restoring] and maintaining] the chemical, physical, and biological integrity of the Nation’s waters.” 33 U. S. C. § 1251(a). In so doing, Congress chose to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter.” § 1251(b). Relevant here, § 404(a) authorizes respondents to regulate the discharge of fill material into “navigable waters,” 33 U. S. C. § 1344(a), which the statute defines as “the waters of the United States, including the territorial seas,” §1362(7). Respondents have interpreted these words to cover the abandoned gravel pit at issue here because it is used as habitat for migratory birds. We conclude that the “Migratory Bird Rule” is not fairly supported by the CWA. This is not the first time we have been called upon to evaluate the meaning of § 404(a). In United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985), we held that the Corps had § 404(a) jurisdiction over wetlands that actually abutted on a navigable waterway. In so doing, we noted that the term “navigable” is of “limited import” and that Congress evidenced its intent to “regulate at least some waters that would not be deemed 'navigable' under the classical understanding of that term.” Id., at 133. But our holding was based in large measure upon Congress’ unequivocal acquiescence to, and approval of, the Corps’ regulations interpreting the CWA to cover wetlands adjacent to navigable waters. See id, at 135-139. We found that Congress’concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands “inseparably bound up with the 'waters’ of the United States.” Id., at 134. It was the significant nexus between the wetlands and “navigable waters” that informed our reading of the CWA in Riverside Bayview Homes. Indeed, we did not “express any opinion” on the “question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water ... .” Id., at 131-132, n. 8. In order to rule for respondents here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the text of the statute will not allow this. Indeed, the Corps’ original interpretation of the CWA, promulgated two years after its enactment, is inconsistent with that which it espouses here. Its 1974 regulations defined §404(a)’s “navigable waters” to mean “those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce.” 33 CFR § 209.120(d)(1). The Corps emphasized that “[i]t is the water body’s capability of use by the public for purposes of transportation or commerce which is the determinative factor.” § 209.260(e)(1). Respondents put forward no persuasive evidence that the Corps mistook Congress’ intent in 1974. Respondents next contend that whatever its original aim in 1972, Congress charted a new course five years later when it approved the more expansive definition of “navigable waters” found in the Corps’ 1977 regulations. In July 1977, the Corps formally adopted 33 CFR § 323.2(a)(5) (1978), which defined “waters of the United States” to include “isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce.” Respondents argue that Congress was aware of this more expansive interpretation during its 1977 amendments to the CWA. Specifically, respondents point to a failed House bill, H. R. 3199, that would have defined “navigable waters” as “all waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce.” 123 Cong. Rec. 10420, 10434 (1977). They also point to the passage in § 404(g)(1) that authorizes a State to apply to the Environmental Protection Agency for permission “to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce . . . , including wetlands adjacent thereto) within its jurisdiction . . ..” 33 U. S. C. § 1344(g)(1). The failure to pass legislation that would have overturned the Corps’ 1977 regulations and the extension of jurisdiction in § 404(g) to waters “other than” traditional “navigable waters,” respondents submit, indicate that Congress recognized and accepted a broad definition of “navigable waters” that includes nonnavigable, isolated, intrastate waters. Although we have recognized congressional acquiescence to administrative interpretations of a statute in some situations, we have done so with extreme care,' “[FJailed legislative proposals are ‘a particularly dangerous ground on which to rest an interpretation of a prior statute/ ” Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 187 (1994) (quoting Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990)). A bill can be proposed for any number of reasons, and it can be rejected for just as many others. The relationship between the actions and inactions of the 95th Congress and the intent of the 92d Congress in passing § 404(a) is also considerably attenuated. Because “subsequent history is less illuminating than the contemporaneous evidence,” Hagen v. Utah, 510 U. S. 399, 420 (1994), respondents face a difficult task in overcoming the plain text and import of § 404(a). We conclude that respondents have failed to make the necessary showing that the failure of the 1977 House bill demonstrates Congress’ acquiescence to the Corps’ regulations or the “Migratory Bird Rule,” which, of course, did not first appear until 1986. Although respondents cite some legislative history showing Congress’ recognition of the Corps’ assertion of jurisdiction over “isolated waters,” as we explained in Riverside Bayview Homes, “[i]n both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation.” 474 U. S., at 136. Beyond Congress’ desire to regulate wetlands adjacent to “navigable waters,” respondents point us to no persuasive evidence that the House bill was proposed in response to the Corps’ claim of jurisdiction over nonnavigable, isolated, intrastate waters or that its failure indicated congressional acquiescence to such jurisdiction. Section 404(g) is equally unenlightening. In Riverside Bayview Homes we recognized that Congress intended the phrase “navigable waters” to include “at least some waters that would not be deemed 'navigable’ under the classical understanding of that term.” Id., at 133. But § 404(g) gives no intimation of what those waters might be; it simply refers to them as “other... waters.” Respondents conjecture that “other ... waters” must incorporate the Corps’ 1977 regulations, but it is also plausible, as petitioner contends, that Congress simply wanted to include all waters adjacent to “navigable waters,” such as nonnavigable tributaries and streams. The exact meaning of § 404(g) is not before us and we express no opinion on it, but for present purposes it is sufficient to say, as we did in Riverside Bayview Homes, that “§ 404(g)(1) does not conclusively determine the construction to be placed on the use of the term ‘waters’ elsewhere in the Act (particularly in § 502(7), which contains the relevant definition of ‘navigable waters’).. ..” Id., at 138, n. 11. We thus decline respondents’ invitation to take what they see as the next ineluctable step after Riverside Bayview Homes: holding that isolated ponds, some only seasonal, wholly located within two Illinois counties, fall under §404(a)’s definition of “navigable waters” because they serve as habitat for migratory birds. As counsel for respondents conceded at oral argument, such a ruling would assume that “the use of the word navigable in the statute . . . does not have any independent significance.” Tr. of Oral Arg. 28. We cannot agree that Congress’ separate definitional use of the phrase “waters of the United States” constitutes a basis for reading the term “navigable waters” out of the statute. We said in Riverside Bayview Homes that the word “navigable” in the statute was of “limited import,” 474 U. S., at 133, and went on to hold that § 404(a) extended to nonnavigable wetlands adjacent to open waters. But it is one thing to give a word limited effect and quite another to give it no effect whatever. The term “navigable” has at least the import of showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made. See, e.g., United States v. Appalachian Elec. Power Co., 311 U. S. 377, 407-408 (1940). Respondents — relying upon all of the arguments addressed above — contend that, at the very least, it must be said that Congress did not address the precise question of §404(a)’s scope with regard to nonnavigable, isolated, intrastate waters, and that, therefore, we should give deference to the “Migratory Bird Rule.” See, e. g., Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). We find § 404(a) to be clear, but even were we to agree with respondents, we would not extend Chevron deference here. Where an administrative interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). This requirement stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority. See ibid. This concern is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power. See United States v. Bass, 404 U. S. 336, 349 (1971) (“[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance”). Thus, “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” DeBartolo, supra, at 575. Twice in the past six years we have reaffirmed the proposition that the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited. See United States v. Morrison, 529 U. S. 598 (2000); United States v. Lopez, 514 U. S. 549 (1995). Respondents argue that the “Migratory Bird Rule” falls within Congress’ power to regulate intrastate activities that “substantially affect” interstate commerce. They note that the protection of migratory birds is a “national interest of very nearly the first magnitude,” Missouri v. Holland, 252 U. S. 416, 435 (1920), and that, as the Court of Appeals found, millions of people spend over a billion dollars annually on recreational pursuits relating to migratory birds. These arguments raise significant constitutional questions. For example, we would have to evaluate the precise object or activity that, in the aggregate, substantially affects interstate commerce. This is not clear, for although the Corps has claimed jurisdiction over petitioner’s land because it contains water areas used as habitat by migratory birds, respondents now, post litem motam, focus upon the fact that the regulated activity is petitioner’s municipal landfill, which is “plainly of a commercial nature.” Brief for Federal Respondents 43. But this is a far cry, indeed, from the “navigable waters” and “waters of the United States” to which the statute by its terms extends. These are significant constitutional questions raised by respondents’ application of their regulations, and yet we find nothing approaching a clear statement from Congress that it intended § 404(a) to reach an abandoned sand and gravel pit such as we have here. Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the “Migratory Bird Rule” would result in a significant impingement of the States’ traditional and primary power over land and water use. See, e. g., Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 44 (1994) (“[Regulation of land use [is] a function traditionally performed by local governments”). Rather than expressing a desire to readjust the federal-state balance in this manner, Congress chose to “recognize, preserve, and protect the primary responsibilities and rights of States ... to plan the development and use ... of land and water resources . . . .” 33 U. S. C. § 1251(b). We thus read the statute as written to avoid the significant constitutional and federalism questions raised by respondents’ interpretation, and therefore reject the request for administrative deference. We hold that 33 CFR § 328.3(a)(3) (1999), as clarified and applied to petitioner’s balefill site pursuant to the “Migratory Bird Rule,” 51 Fed. Reg. 41217 (1986), exceeds the authority granted to respondents under § 404(a) of the CWA. The judgment of the Court of Appeals for the Seventh Circuit is therefore Reversed. The Corps issued the “Migratory Bird Rule” without following the notice and comment procedures outlined in the Administrative Procedure Act, 5 U.S.C. §553. Relying upon its earlier decision in Hoffman Homes, Inc. v. EPA, 999 F. 2d 256 (CA7 1993), and a report from the United States Census Bureau, the Court of Appeals found that in 1996 approximately 3.1 million Americans spent $1.3 billion to hunt migratory birds (with 11 percent crossing state lines to do so) as another 17.7 million Americans observed migratory birds (with 9.5 million traveling for the purpose of observing shorebirds). See 191 F. 3d, at 850. Respondents refer us to portions of the legislative history that they believe indicate Congress’ intent to expand the definition of “navigable waters.” Although the Conference Report includes the statement that the conferees “intend that the term ‘navigable waters’ be given the broadest possible constitutional interpretation,” S. Conf. Rep. No. 92-1236, p. 144 (1972), neither this, nor anything else in the legislative history to which respondents point, signifies that Congress intended to exert anything more than its commerce power over navigation. Indeed, respondents admit that the legislative history is somewhat ambiguous. See Brief for Federal Respondents 24. While this bill passed in the House, a similarly worded amendment to a bill originating in the Senate, S. 1952, failed. See 123 Cong. Rec. 26710, 26728 (1977). In Bob Jones Univ. v. United States, 461 U. S. 574, 595, 600-601 (1983), for example, we upheld an Internal Revenue Service (IRS) Revenue Ruling that revoked the tax-exempt status of private schools practicing racial discrimination because the IRS’ interpretation of the relevant statutes was “correct”; because Congress had held “hearings on this precise issue,” making it “hardly conceivable that Congress — and in this setting, any Member of Congress — was not abundantly aware of what was going on”; and because “no fewer than 13 bills introduced to overturn the IRS interpretation” had failed. Absent such overwhelming evidence of acquiescence, we are loath to replace the plain text and original understanding of a statute with an amended agency interpretation. See Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 118, n. 13 (1980) (“[E]ven when it would otherwise be useful, subsequent legislative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment”). Respondents cite, for example, the Senate Report on S. 1952, which referred to the Corps’ “isolated waters” regulation. See S. Rep. No. 95-370, p. 75 (1977). However, the same report reiterated that “[t]he committee amendment does not redefine navigable waters.” Ibid. Respondents also make a passing reference to Congress’ decision in 1977 to exempt certain types of discharges from 1404(a), including, for example, “discharge of dredged or fill material ... for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches.” §67, 91 Stat. 1600, 33 U. S. C. § 1344(f)(C). As § 404(a) only regulates dredged or fill material that is discharged “into navigable waters,” Congress’ decision to exempt certain types of these discharges does not affect, much less address, the definition of “navigable waters.” Because violations of the CWA carry criminal penalties, see 33 U. S. C. § 1319(c)(2), petitioner invokes the rule of lenity as another basis for rejecting the Corps’ interpretation of the CWA. Brief for Petitioner 31-32. We need not address this alternative argument. See United States v. Shabani, 513 U. S. 10, 17 (1994).

Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting. In 1969, the Cuyahoga River in Cleveland, Ohio, coated with a slick of industrial waste, caught fire. Congress responded to that dramatic event, and to others like it, by enacting the Federal Water Pollution Control Act (FWPCA) Amendments of 1972, 86 Stat. 817, as amended, 33 U. S. C. §1261 et seq., commonly known as the Clean Water Act (Clean Water Act, CWA, or Act). The Act proclaimed the ambitious goal of ending water pollution by 1986. § 1261(a). The Court’s past interpretations of the CWA have been fully consistent with that goal. Although Congress’ vision of zero pollution remains unfulfilled, its pursuit has unquestionably retarded the destruction of the aquatic environment. Our Nation’s waters no longer burn. Today, however, the Court takes an unfortunate step that needlessly weakens our principal safeguard against toxic water. It is fair to characterize the Clean Water Act as “watershed” legislation. The statute endorsed fundamental changes in both the purpose and the scope of federal regulation of the Nation’s waters. In §13 of the Rivers and Harbors Appropriation Act of 1899 (RHA), 30 Stat. 1152, as amended, 33 U. S. C. § 407, Congress had assigned to the Army Corps of Engineers (Corps) the mission of regulating discharges into certain waters in order to protect their use as highways for the transportation of interstate and foreign commerce; the scope of the Corps’ jurisdiction under the RHA accordingly extended only to waters that were “navigable.” In the CWA, however, Congress broadened the Corps’ mission to include the purpose of protecting the quality of our Nation’s waters for esthetic, health, recreational, and environmental uses. The scope of its jurisdiction was therefore redefined to encompass all of “the waters of the United States, including the territorial seas.” § 1362(7). That definition requires neither actual nor potential navigability. The Court has previously held that the Corps’ broadened jurisdiction under the CWA properly included an 80-acre parcel of low-lying marshy land that was not itself navigable, directly adjacent to navigable water, or even hydrologically connected to navigable water, but which was part of a larger area, characterized by poor drainage, that ultimately abutted a navigable creek. United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985). Our broad finding in Riverside Bayview that the 1977 Congress had acquiesced in the Corps’ understanding of its jurisdiction applies equally to the 410-acre parcel at issue here. Moreover, once Congress crossed the legal watershed that separates navigable streams of commerce from marshes and inland lakes, there is no principled reason for limiting the statute’s protection to those waters or wetlands that happen to lie near a navigable stream. In its decision today, the Court draws a new jurisdictional line, one that invalidates the 1986 migratory bird regulation as well as the Corps’ assertion of jurisdiction over all waters except for actually navigable waters, their tributaries, and wetlands adjacent to each. Its holding rests on two equally untenable premises: (1) that when Congress passed the 1972 CWA, it did not intend “to exert anything more than its commerce power over navigation,” ante, at 168, n. 3; and (2) that in 1972 Congress drew the boundary defining the Corps’ jurisdiction at the odd line on which the Court today settles. As I shall explain, the text of the 1972 amendments affords no support for the Court’s holding, and amendments Congress adopted in 1977 do support the Corps’ present interpretation of its mission as extending to so-called “isolated” waters. Indeed, simple common sense cuts against the particular definition of the Corps’ jurisdiction favored by the majority. I The significance of the FWPCA Amendments of 1972 is illuminated by a reference to the history of federal water regulation, a history that the majority largely ignores. Federal regulation of the Nation’s waters began in the 19th century with efforts targeted exclusively at “promoting] water transportation and commerce.” Kalen, Commerce to Conservation: The Call for a National Water Policy and the Evolution of Federal Jurisdiction Over Wetlands, 69 N. D. L. Rev. 873, 877 (1993). This goal was pursued through the various Rivers and Harbors Acts, the most comprehensive of which was the RHA of 1899. Section 13 of the 1899 RHA, commonly known as the Refuse Act, prohibited the discharge of “refuse” into any “navigable water” or its tributaries, as well as the deposit of “refuse” on the bank of a navigable water “whereby navigation shall or may be impeded or obstructed” without first obtaining a permit from the Secretary of the Army. 30 Stat. 1152. During the middle of the 20th century, the goals of federal water regulation began to shift away from an exclusive focus on protecting navigability and toward a concern for preventing environmental degradation. Kalen, 69 N. D. L. Rev., at 877-879, and n. 30. This awakening of interest in the use of federal power to protect the aquatic environment was helped along by efforts to reinterpret § 18 of the RHA in order to apply its permit requirement to industrial discharges into navigable waters, even when such discharges did nothing to impede navigability. See, e. g., United States v. Republic Steel Corp., 362 U. S. 482, 490-491 (1960) (noting that the term “refuse” in § 13 was broad enough to include industrial waste). Seeds of this nascent concern with pollution control can also be found in the FWPCA, which was first enacted in 1948 and then incrementally expanded in the following years. The shift in the focus of federal water regulation from protecting navigability toward environmental protection reached a dramatic climax in 1972, with the passage of the CWA. The Act, which was passed as an amendment to the existing FWPCA, was universally described by its supporters as the first truly comprehensive federal water pollution legislation. The “major purpose” of the CWA was “to establish a comprehensive long-range policy for the elimination of water pollution.” S. Rep. No. 92-414, p. 95 (1971), 2 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 1511 (1971) (hereinafter Leg. Hist.) (emphasis added). And “[n]o Congressman’s remarks on the legislation were complete without reference to [its] ‘comprehensive’ nature . . . .” Milwaukee v. Illinois, 451 U. S. 304, 318 (1981) (Rehnquist, J.). A House sponsor described the bill as “the most comprehensive and far-reaching water pollution bill we have ever drafted,” 1 Leg. Hist. 369 (Rep. Mizell), and Senator Randolph, Chairman of the Committee on Public Works, stated: “It is perhaps the most comprehensive legislation that the Congress of the United States has ever developed in this particular field of the environment.” 2 id., at 1269. This Court was therefore undoubtedly correct when it described the 1972 amendments as establishing “a comprehensive program for controlling and abating water pollution.” Train v. City of New York, 420 U. S. 35, 37 (1975). Section 404 of the CWA resembles § 13 of the RHA, but, unlike the earlier statute, the primary purpose of which is the maintenance of navigability, §404 was principally intended as a pollution control measure. A comparison of the contents of the RHA and the 1972 Act vividly illustrates the fundamental difference between the purposes of the two provisions. The earlier statute contains pages of detailed appropriations for improvements in specific navigation facilities, 30 Stat. 1121-1149, for studies concerning the feasibility of a canal across the Isthmus of Panama, id., at 1150, and for surveys of the advisability of harbor improvements at numerous other locations, id., at 1155-1161. Tellingly, § 13, which broadly prohibits the discharge of refuse into navigable waters, contains an exception for refuse “flowing from streets and sewers ... in a liquid state.” Id., at 1152. The 1972 Act, in contrast, appropriated large sums of money for research and related programs for water pollution control, 86 Stat. 816-833, and for the construction of water treatment works, id., at 833-844. Strikingly absent from its declaration of “goals and policy” is any reference to avoiding or removing obstructions to navigation. Instead, the principal objective of the Act, as stated by Congress in § 101, was “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U. S. C. § 1251. Congress therefore directed federal agencies in §102 to “develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters and ground waters and improving the sanitary condition of surface and underground waters.” 33 U. S. C. § 1252. The CWA commands federal agencies to give “due regard,” not to the interest of unobstructed navigation, but rather to “improvements which are necessary to conserve such waters for the protection and propagation of fish and aquatic life and wildlife [and] recreational purposes.” Ibid. Because of the statute’s ambitious and comprehensive goals, it was, of course, necessary to expand its jurisdictional scope. Thus, although Congress opted to carry over the traditional jurisdictional term “navigable waters” from the RHA and prior versions of the FWPCA, it broadened the definition of that term to encompass all “waters of the United States.” § 1362(7). Indeed, the 1972 conferees arrived at the final formulation by specifically deleting the word “navigable” from the definition that had originally appeared in the House version of the Act. The majority today undoes that deletion. The Conference Report explained that the definition in §502(7) was intended to “be given the broadest possible constitutional interpretation.” S. Conf. Rep. No. 92-1236, p. 144 (1972), reprinted in 1 Leg. Hist. 327. The Court dismisses this clear assertion of legislative intent with the back of its hand. Ante, at 168, n. 3. The statement, it claims, “signifies that Congress intended to exert [nothing] more than its commerce power over navigation.” Ibid. The majority’s reading drains all meaning from the conference amendment. By 1972, Congress’ Commerce Clause power over “navigation” had long since been established. The Daniel Ball, 10 Wall. 557 (1871); Gilman v. Philadelphia, 3 Wall. 713 (1866); Gibbons v. Ogden, 9 Wheat. 1 (1824). Why should Congress intend that its assertion of federal jurisdiction be given the “broadest possible constitutional interpretation” if it did not intend to reach beyond the very heartland of its commerce power? The activities regulated by the CWA have nothing to do with Congress’ “commerce power over navigation.” Indeed, the goals of the 1972 statute have nothing to do with navigation at all. As we recognized in Riverside Bayview, the interests served by the statute embrace the protection of “ ‘significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites’ ” for various species of aquatic wildlife. 474 U. S., at 134-135. For wetlands and “isolated” inland lakes, that interest is equally powerful, regardless of the proximity of the swamp or the water to a navigable stream. Nothing in the text, the stated purposes, or the legislative history of the CWA supports the conclusion that in 1972 Congress contemplated — much less commanded — the odd jurisdictional line that the Court has drawn today. The majority accuses respondents of reading the term “navigable” out of the statute. Ante, at 172. But that was accomplished by Congress when it deleted the word from the § 502(7) definition. After all, it is the definition that is the appropriate focus of our attention. Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 697-698, n. 10 (1995) (refusing to be guided by the common-law definition of the term “take” when construing that term within the Endangered Species Act of 1973 and looking instead to the meaning of the terms contained in the definition of “take” supplied by the statute). Moreover, a proper understanding of the history of federal water pollution regulation makes clear that — even on respondents’ broad reading — the presence of the word “navigable” in the statute is not inexplicable. The term was initially used in the various Rivers and Harbors Acts because (1) at the time those statutes were first enacted, Congress’ power over the Nation’s waters was viewed as extending only to “water bodies that were deemed ‘navigable’ and therefore suitable for moving goods to or from markets,” Power 513; and (2) those statutes had the primary purpose of protecting navigation. Congress’ choice to employ the term “navigable waters” in the 1972 Clean Water Act simply continued nearly a century of usage. Viewed in light of the history of federal water regulation, the broad § 502(7) definition, and Congress’ unambiguous instructions in the Conference Report, it is clear that the term “navigable waters” operates in the .statute as a shorthand for “waters over which federal authority may properly be asserted.” II As the majority correctly notes, ante, at 168, when the 1972 Act, it construed its authority as being essentially the same as it had been under the 1899 RHA. The reaction to those regulations in the federal courts, in the Environmental Protection Agency (EPA), and in Congress convinced the Corps that the statute required it “to protect water quality to the full extent of the [C]ommeree [C]lause” and to extend federal regulation over discharges “to many areas that have never before been subject to Federal permits or to this form of water quality protection.” 40 Fed. Reg. 31320 (1975). In 1975, the Corps therefore adopted the interim regulations that we upheld in Riverside Bayview. As we noted in that case, the new regulations understood “the waters of the United States” to include, not only navigable waters and their tributaries, but also “nonnavigable intrastate war ters whose use or misuse could affect interstate commerce.” 474 U. S., at 123. The 1975 regulations provided that the new program would become effective in three phases: phase 1, which became effective immediately, encompassed the navigable waters covered by the 1974 regulation and the RHA; phase 2, effective after July 1, 1976, extended Corps jurisdiction to nonnavigable tributaries, freshwater wetlands adjacent to primary navigable waters, and lakes; and phase 3, effective after July 1, 1977, extended Corps jurisdiction to all other waters covered under the statute, including any waters not covered by phases 1 and 2 (such as “intermittent rivers, streams, tributaries, and perched wetlands that are not contiguous or adjacent to navigable waters”) that “the District Engineer determines necessitate regulation for the protection of water quality.” 40 Fed. Reg. 31325-31826 (1975). The final version of these regulations, adopted in 1977, made clear that the covered waters included “isolated lakes and wetlands, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce.” The Corps’ broadened reading of its jurisdiction provoked opposition among some Members of Congress. As a result, in 1977, Congress considered a proposal that would have limited the Corps’ jurisdiction under §404 to waters that are used, or by reasonable improvement could be used, as a means to transport interstate or foreign commerce and their adjacent wetlands. H. R. 3199, 95th Cong., 1st Sess., § 16(f) (1977). A bill embodying that proposal passed the House but was defeated in the Senate. The debates demonstrate that Congress was fully aware of the Corps’ understanding of the scope of its jurisdiction under the 1972 Act. We summarized these debates in our opinion in Riverside Bayview: “In both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation. See [123 Cong. Rec.], at 10426-10432 (House debate); id., at 26710-26729 (Senate debate). Proponents of a more limited § 404 jurisdiction contended that the Corps’ assertion of jurisdiction over wetlands and other nonnavigable ‘waters’ had far exceeded what Congress had intended in enacting §404. Opponents of the proposed changes argued that a narrower definition of ‘navigable waters’ for purposes of §404 would exclude vast stretches of crucial wetlands from the Corps’ jurisdiction, with detrimental effects on wetlands ecosystems, water quality, and the aquatic environment generally. The debate, particularly in the Senate, was lengthy. In the House, the debate ended with the adoption of a narrowed definition of ‘waters’; but in the Senate the limiting amendment was defeated and the old definition retained. The Conference Committee adopted the Senate’s approach: efforts to narrow the definition of ‘waters’ were abandoned; the legislation as ultimately passed, in the words of Senator Baker, ‘retained] the comprehensive jurisdiction over the Nation’s waters exercised in the 1972 Federal Water Pollution Control Act.’ ” 474 U. S., at 136-137. The net result of that extensive debate was a congressional endorsement of the position that the Corps maintains today. We explained in Riverside Bayview: “[T]he scope of the Corps’ asserted jurisdiction over wetlands was specifically brought to Congress’ attention, and Congress rejected measures designed to curb the Corps’ jurisdiction in large part because of its concern that protection of wetlands would be unduly hampered by a narrowed definition of ‘navigable waters.’ Although we are chary of attributing significance to Congress’ failure to act, a refusal by Congress to overrule an agency’s construction of legislation is at least some evidence of the reasonableness of that construction, particularly where the administrative construction has been brought to Congress’ attention through legislation specifically designed to supplant'it.” Id., at 137. Even if the majority were correct that Congress did not extend the Corps’ jurisdiction in the 1972 CWA to reach beyond navigable waters and their nonnavigable tributaries, Congress’ rejection of the House’s efforts in 1977 to cut back on the Corps’ 1975 assertion of jurisdiction clearly indicates congressional acquiescence in that assertion. Indeed, our broad determination in Riverside Bayview that the 1977 Congress acquiesced in the very regulations at issue in this case should foreclose petitioner’s present urgings to the. contrary. The majority’s refusal in today’s decision to acknowledge the scope of our prior decision is troubling. Compare id., at 136 (“Congress acquiesced in the [1975] administrative construction [of the Corps’ jurisdiction]”), with ante, at 170 (“We conclude that respondents have failed to make the necessary showing that the failure of the 1977 House bill demonstrates Congress’ acquiescence to the Corps’ regulations .. .”). Having already concluded that Congress acquiesced in the Corps’ regulatory definition of its jurisdiction, the Court is wrong to reverse course today. See Dickerson v. United States, 530 U. S. 428, 443 (2000) (Rehnquist, C. J.) (“‘[T]he doctrine [of stare decisis] carries such persuasive force that we have always required a departure from precedent to be supported by some “special justification” ’ ”). More important than the 1977 bill that did not become law are the provisions that actually were included in the 1977 revisions. Instead of agreeing with those who sought to withdraw the Corps’ jurisdiction over “isolated” waters, Congress opted to exempt several classes of such waters from federal control. § 67, 91 Stat. 1601, 33 U. S. C. § 1344(f). For example, the 1977 amendments expressly exclude from the Corps’ regulatory power the discharge of fill material “for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches,” and “for the purpose of construction of temporary sedimentation basins on a construction site which does not include placement of fill material into the navigable waters.” Ibid. The specific exemption of these waters from the Corps’ jurisdiction indicates that the 1977 Congress recognized that similarly “isolated” waters not covered by the exceptions would fall within the statute’s outer limits. In addition to the enumerated exceptions, the 1977 amendments included a new section, § 404(g), which authorized the States to administer their own permit programs over certain nonnavigable waters. Section 404(g)(1) provides, in relevant part: “The Governor of any State desiring to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce .. ., including wetlands adjacent thereto) within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact.” 33 U. S. C. § 1344(g)(1). ■ Section 404(g)(l)’s reference to navigable waters “other than those waters which are presently used, or are susceptible to use,” for transporting commerce and their adjacent wetlands appears to suggest that Congress viewed (and accepted) the Act’s regulations as covering more than navigable waters in the traditional sense. The majority correctly points out that § 404(g)(1) is itself ambiguous because it does not indicate precisely how far Congress considered federal jurisdiction to extend. Ante, at 171. But the Court ignores the provision’s legislative history, which makes clear that Congress understood § 404(g)(1) — and therefore federal jurisdiction — to extend, not only to navigable waters and non-navigable tributaries, but also to “isolated” waters, such as those at issue in this case. The Conference Report discussing the 1977 amendments, for example, states that § 404(g) “establish[es] a process to allow the Governor of any State to administer an individual and general permit program for the discharge of dredged or fill matérial into phase 2 and 3 waters after the approval of a program by the Administrator.” H. R. Conf. Rep. No. 95-830, p. 101 (1977), reprinted in 3 Legislative History of the Clean Water Act of 1977 (Committee Print compiled for the Committee on Environment and Public Works by the Library of Congress), Ser. No. 95-14, p. 285 (emphasis added) (hereinafter Leg. Hist, of CWA). Similarly, a Senate Report discussing the 1977 amendments explains that, under § 404(g), “the [Cjorps will continue to administer the section 404 permit program in all navigable waters for a discharge of dredge or fill material until the approval of a State program/or phase 2 and 3 waters.” S. Rep. No. 95-370, p. 75 (1977), reprinted in 4 Leg. Hist, of CWA 708 (emphases added). Of course, as I have already discussed, “phase 1” waters are navigable waters and their contiguous wetlands, “phase 2” waters are the “primary tributaries” of navigable waters and their adjacent wetlands, and “phase 3” waters are all other waters covered by the statute, and can include such “isolated” waters as “intermittent rivers, streams, tributaries, and perched wetlands that are not contiguous or adjacent to navigable waters.” The legislative history of the 1977 amendments therefore plainly establishes that, when it enacted § 404(g), Congress believed — and desired— the Corps’ jurisdiction to extend beyond just navigable waters, their tributaries, and the wetlands adjacent to each. In dismissing the significance of § 404(g)(1), the majority quotes out of context language in the very same 1977 Senate Report that I have quoted above. Ante, at 170, n. 6. It is true that the Report states that “[t]he committee amendment does not redefine navigable waters.” S. Rep. No. 95-370, at 75, reprinted in 4 Leg. Hist, of CWA 708 (emphasis added). But the majority fails to point out that the quoted language appears in the course of an explanation of the Senate’s refusal to go along with House efforts to narrow the scope of the Corps’ CWA jurisdiction to traditionally navigable waters. Thus, the immediately preceding sentence warns that “[t]o limit the jurisdiction of the [FWPCA] with reference to discharges of the pollutants of dredged or fill material would cripple efforts to achieve the act’s objectives.” Ibid. The Court would do well to heed that warning. The majority also places great weight, ante, at 171, on our statement in Riverside Bayview that § 404(g) “does not con clusively determine the construction to be placed on the use of the term ‘waters’ elsewhere in the Act,” 474 U. S., at 138, n. 11 (emphasis added). This is simply more selective reading. In that case, we also went on to say with respect to the significance of § 404(g) that “the various provisions of the Act should be read in pari materia.” Ibid. Moreover, our ultimate conclusion in Riverside Bayview was that § 404(g) “suggests] strongly that the term ‘waters’ as used in the Act” supports the Corps’ reading. Ibid. III Although it might have appeared problematic on a “linguistic” level for the Corps to classify “lands” as “waters” in Riverside Bayview, 474 U. S., at 131-132, we squarely held that the agency’s construction of the statute that it was charged with enforcing was entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), Today, however, the majority refuses to extend such deference to the same agency’s construction of the same statute, see ante, at 172-174. This refusal is unfaithful to both Riverside Bayview and Chevron. For it is the majority’s reading, not the agency’s, that does violence to the scheme Congress chose to put into place. Contrary to the Court’s suggestion, the Corps’ interpretation of the statute does not “encroae[h]” upon “traditional state power” over land use. Ante, at 173. “Land use planning in essence chooses particular uses for the land; environmental regulation, at its core, does not mandate particular uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits.” California Coastal Comm’n v. Granite Rock Co., 480 U. S. 572, 587 (1987). The CWA is not a land-use code; it. is a paradigm of environmental regulation. Such regulation is an accepted exercise of federal power. Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 282 (1981). It is particularly ironic for the Court to raise the specter of federalism while construing a statute that makes explicit efforts to foster local control over water regulation. Faced with calls to cut back on federal jurisdiction over water pollution, Congress rejected attempts to narrow the scope of that jurisdiction and, by incorporating § 404(g), opted instead for a scheme that encouraged States to supplant federal control with their own regulatory programs. S. Rep. No. 95-370, at 75, reprinted in 4 Leg. Hist, of CWA 708 (“The committee amendment does not redefine navigable waters. Instead, the committee amendment intends to assure continued protection of all the Nation’s waters, but allows States to assume the primary responsibility for protecting those lakes, rivers, streams, swamps, marshes, and other portions of the navigable waters outside the [Cjorps program in the so-called phase I waters” (emphasis added)). Because Illinois could have taken advantage of the opportunities offered to it through § 404(g), the federalism concerns to which the majority adverts are misplaced. The Corps’ interpretation of the statute as extending beyond navigable waters, tributaries of navigable waters, and wetlands adjacent to each is manifestly reasonable and therefore entitled to deference. IV Because I am convinced that the Court’s miserly construction of the statute is incorrect, I shall comment briefly on petitioner’s argument that Congress is without power to prohibit it from filling any part of the 31 acres of ponds on its property in Cook County, Illinois. The Corps’ exercise of its § 404 permitting power over “isolated” waters that serve as habitat for migratory birds falls well within the boundaries set by this Court’s Commerce Clause jurisprudence. In United States v. Lopez, 514 U. S. 549, 558-559 (1995), this Court identified “three broad categories of activity that Congress may regulate under its commerce power”: (1) channels of interstate commerce; (2) instrumentalities of interstate commerce, or persons and things in interstate commerce; and (3) activities that “substantially affect” interstate commerce. Ibid. The migratory bird rule at issue here is properly analyzed under the third category. In order to constitute a proper exercise of Congress’ power over intrastate activities that “substantially affect” interstate commerce, it is not necessary that each individual instance of the activity substantially affect commerce; it is enough that, taken in the aggregate, the class of activities in question has such an effect. Perez v. United States, 402 U. S. 146 (1971) (noting that it is the “class” of regulated activities, not the individual instance, that is to be considered in the “affects” commerce analysis); see also Hodel, 452 U. S., at 277; Wickard v. Filburn, 317 U. S. 111, 127-128 (1942). The activity being regulated in this ease (and by the Corps’ §404 regulations in general) is the discharge of fill material into water. The Corps did not assert jurisdiction over petitioner’s land simply because the waters were “used as habitat by migratory birds.” It asserted jurisdiction because petitioner planned to discharge fill into waters “used as habitat by migratory birds.” Had petitioner intended to engage in some other activity besides discharging fill (i.e., had there been no activity to regulate), or, conversely, had the waters not been habitat for migratory birds (i.e., had there been no basis for federal jurisdiction), the Corps would never have become involved in petitioner’s use of its land. There can be no doubt that, unlike the class of activities Congress was attempting to regulate in United States v. Morrison, 529 U. S. 598, 613 (2000) (“[g]ender-motivated crimes”), and Lopez, 514 U. S., at 561 (possession of guns near school property), the discharge of fill material into the Nation’s waters is almost always undertaken for economic reasons. See V. Albrecht & B. Goode, Wetland Regulation in the Real World, Exh. 3 (Feb. 1994) (demonstrating that the overwhelming majority of acreage for which §404 permits are sought is intended for commercial, industrial, or other economic use). Moreover, no one disputes that the discharge of fill into “isolated” waters that serve as migratory bird habitat will, in the aggregate, adversely affect migratory bird populations. See, e. g., 1 Secretary of the Interior, Report to Congress, The Impact of Federal Programs on Wetlands: The Lower Mississippi Alluvial Plain and the Prairie Pothole Region 79-80 (Oct. 1988) (noting that “isolated,” phase 3 waters “are among the most important and also [the] most threatened ecosystems in the United States” because “[t]hey are prime nesting grounds for many species of North American waterfowl ...” and provide “[u]p to 50 percent of the [U. S.] production of migratory waterfowl”). Nor does petitioner dispute that the particular waters it seeks to fill are home to many important species of migratory birds, including the second-largest breeding colony of Great Blue Herons in northeastern Illinois, App. to Pet. for Cert. 3a, and several species of waterfowl protected by international treaty and Illinois endangered species laws, Brief for Federal Respondents 7. In addition to the intrinsic value of migratory birds, see Missouri v. Holland, 252 U. S. 416, 435 (1920) (noting the importance of migratory birds as “protectors of our forests and our crops” and as “a food supply”), it is undisputed that literally millions of people regularly participate in birdwatching and hunting and that those activities generate a host of commercial activities of great value. The causal connection between the filling of wetlands and the decline of commercial activities associated with migratory birds is not “attenuated,” Morrison, 529 U. S., at 612; it is direct and concrete. Cf. Gibbs v. Babbitt, 214 F. 3d 483, 492-493 (CA4 2000) (“The relationship between red wolf takings and interstate commerce is quite direct — with no red wolves, there will be no red wolf related tourism ...”). Finally, the migratory bird rule does not blur the “distinction between what is truly national and what is truly local.” Morrison, 529 U. S., at 617-618. Justice Holmes cogently observed in Missouri v. Holland that the protection of migratory birds is a textbook example of a national problem. 252 U. S., at 435 (“It is not sufficient to rely upon the States [to protect migratory birds]. The reliance is vain . . .”). The destruction of aquatic migratory bird habitat, like so many other environmental problems, is an action in which the benefits (e. g., a new landfill) are disproportionately local, while many of the costs (e. g., fewer migratory birds) are widely dispersed and often borne by citizens living in other States. In such situations, described by economists as involving “externalities,” federal regulation is both appropriate and necessary. Revesz, Rehabilitating Interstate Competition: Rethinking the “Race-to-the-Bottom” Rationale for Federal Environmental Regulation, 67 N. Y. U. L. Rev. 1210, 1222 (1992) (“The presence of interstate externalities is a powerful reason for intervention at the federal level”); cf. Hodel, 462 U. S., at 281-282 (deferring to Congress’ finding that nationwide standards were “essential” in order to avoid “destructive interstate competition” that might undermine environmental standards). Identifying the Corps’ jurisdiction by reference to waters that serve as habitat for birds that migrate over state lines also satisfies this Court’s expressed desire for some “jurisdictional element” that limits federal activity to its proper scope. Morrison, 529 U. S., at 612. The power to regulate commerce among the several States necessarily and properly includes the power to preserve the natural resources that generate such commerce. Cf. Sporhase v. Nebraska ex rel. Douglas, 468 U. S. 941, 963 (1982) (holding water to be an “article of commerce”). Migratory birds, and the waters on which they rely, are such resources. Moreover, the protection of migratory birds is a well-established federal responsibility. As Justice Holmes noted in Missouri v. Holland, the federal interest in protecting these birds is of “the first magnitude.” 252 U. S., at 435. Because of their transitory nature, they “can be protected only by national action.” Ibid. Whether it is necessary or appropriate to refuse to allow petitioner to fill those ponds is a question on which we have no voice. Whether the Federal Government has the power to require such permission, however, is a question that is easily answered. If, as it does, the Commerce Clause empowers Congress to regulate particular “activities causing air or water pollution, or other environmental hazards that may have effects in more than one State,” Hodel, 452 U. S., at 282, it also empowers Congress to control individual actions that, in the aggregate, would have the same effect. Perez, 402 U. S., at 154; Wickard, 317 U. S., at 127-128. There is no merit in petitioner’s constitutional argument. Because I would affirm the judgment of the Court of Appeals, I respectfully dissent. See R. Adler, J. Landman, & D. Cameron, The Clean Water Act: 20 Years Later 5-10 (1993). See also App. to Pet. for Cert. 25a, and Brief for United States 8, n. 7, in Riverside Bayview, O. T. 1984, No. 84-701. The District Court in Riverside Bayview found that there was no direct “hydrological” connection between the parcel at issue and any nearby navigable waters. App. to Pet. for Cert, in Riverside Bayview 25a. The wetlands characteristics of the parcel were due, not to a surface or groundwater connection to any actually navigable water, but to “poor drainage” resulting from “the Lam-son soil that underlay the property.” Brief for Respondent in Riverside Bayview 7. Nevertheless, this Court found occasional surface runoff from the property into nearby waters to constitute a meaningful connection. Riverside Bayview, 474 U. S., at 134; Brief for United States in Riverside Bayview 8, n. 7. Of course, the ecological connection between the wetlands and the nearby waters also played a central role in this Court’s decision. Riverside Bayview, 474 U. S., at 134-135. Both types of connection are also present in many, and possibly most, “isolated” waters. Brief for Dr. Gene Likens et al. as Amici Curiae 6-22. Indeed, although the majority and petitioner both refer to the waters on petitioner’s site as “isolated,” ante, at 172; Brief for Petitioner 11, their role as habitat for migratory birds, birds that serve important functions in the ecosystems of other waters throughout North America, suggests that — ecologically speaking — the waters at issue in this case are anything but isolated. See also Rivers and Harbors Appropriations Act of 1896, 29 Stat. 234; River and Harbor Act of 1894, 28 Stat. 363; River and Harbor Appropriations Act of 1890, 26 Stat. 426; The River and Harbor Appropriations Act of 1886, 24 Stat. 329. In 1970, the House Committee on Government Operations followed the Court’s lead and advocated the use of § 13 as a pollution control provision. H. R. Rep. No. 91-917, pp. 14-18 (1970). President Nixon responded by issuing Executive Order No. 11574, 35 Fed. Reg. 19627 (1970) (revoked by Exec. Order No. 12553, 51 Fed. Reg. 7237 (1986)), which created the Refuse Act Permit Program. Power, The Fox in the Chicken Coop: The Regulatory Program of the U. S. Army Corps of Engineers, 63 Va. L. Rev. 503, 512 (1977) (hereinafter Power). The program ended soon after it started, however, when a District Court, reading the language of § 13 literally, held the permit program invalid. Ibid,.; see Kalur v. Resor, 335 F. Supp. 1, 9 (DC 1971). The FWPCA of 1948 applied only to “interstate waters.” § 10(e), 62 Stat. 1161. Subsequently, it was harmonized with the Rivers and Harbors Act such that — like the earlier statute — the FWPCA defined its jurisdiction with reference to “navigable waters.” Pub. L. 89-753, §211, 80 Stat. 1252. None of these early versions of the FWPCA could fairly be described as establishing a comprehensive approach to the problem, but they did contain within themselves several of the elements that would later be employed in the CWA. Milwaukee v. Illinois, 451 U. S. 304, 318, n. 10 (1981) (Rehnquist, J.) (Congress intended to do something “quite different” in the 1972 Act); 2 W. Rodgers, Environmental Law: Air and Water §4.1, pp. 10-11 (1986) (describing the early versions of the FWPCA). The definition of “navigable water” in earlier versions of the FWPCA had made express reference to navigability. §211, 80 Stat. 1253. The version adopted by the House of Representatives defined “navigable waters” as “the navigable waters of the United States, including the territorial seas.” H. R. 11896, 92d Cong., 2d Sess., §502(8) (1971), reprinted in 1 Leg. Hist. 1069. The CWA ultimately defined “navigable waters” simply as “the waters of the United States, including the territorial seas.” 33 U. S. C. § 1362(7). The Corps later acknowledged that the 1974 regulations “limited the Section 404 permit program to the same waters that were being regulated under the River and Harbor Act of 1899.” 42 Fed. Reg. 37123 (1977). Although refusing to defer to the Corps’ present interpretation of the statute, ante, at 172, the majority strangely attributes some significance to the Corps’ initial reluctance to read the 1972 Act as expanding its jurisdiction, ante, at 168 (“Respondents put forward no persuasive evidence that the Corps mistook Congress’ intent in 1974”). But, stranger still, by construing the statute as extending to nonnavigable tributaries and adjacent wetlands, the majority reads the statute more broadly than the 1974 regulations that it seems willing to accept as a correct construction of the Corps’ jurisdiction. As I make clear in the text, there is abundant evidence that the Corps was wrong in 1974 and that the Court is wrong today. See, e. g., Natural Resources Defense Council v. Callaway, 392 F. Supp. 685, 686 (DC 1975); United States v. Holland, 373 F. Supp. 665 (MD Fla. 1974). In a 1974 letter to the head of the Corps, the EPA Administrator expressed his disagreement with the Corps’ parsimonious view of its own jurisdiction under the CWA. Section 404 of the Federal Water Pollution Control Act Amendments of 1972: Hearings before the Senate Committee on Public Works, 94th Cong., 2d Sess., 349 (1976) (letter dated June 19, 1974, from Russell E. Train, Administrator of EPA, to Lt. Gen. W. C. Gribble, Jr., Chief of Corps of Engineers). The EPA is the agency that generally administers the CWA, except as otherwise provided. 33 U. S. C. § 1251(d); see also 43 Op. Atty. Gen. 197 (1979) (“Congress intended to confer upon the administrator of the [EPA] the final administrative authority” to determine the reach of the term “navigable waters”). 11 The House Committee on Government Operations noted the disagreement between the EPA and the Corps over the meaning of “navigable waters” and ultimately expressed its agreement with the EPA’s broader reading of the statute. H. R. Rep. No. 93-1396, pp. 23-27 (1974). 42 Fed. Reg. 37127 (1977), as amended, 33 CFR § 328.3(a)(3) (1977). The so-called “migratory bird” rule, upon which the Corps based its assertion of jurisdiction in this case, is merely a specific application of the more general jurisdictional definition first adopted in the 1975 and 1977 rules. The “rule,” which operates as a rule of thumb for identifying the waters that fall within the Corps’ jurisdiction over phase 3 waters, first appeared in the preamble to a 1986 repromulgation of the Corps’ definition of “navigable waters.” 51 Fed. Reg. 41217 (1986). As the Corps stated in the preamble, this repromulgation was not intended to alter its jurisdiction in any way. Ibid. Instead, the Corps indicated, the migratory bird rule was enacted simply to “elariffy]” the scope of existing jurisdictional regulations. Ibid. The majority appears to believe that its position is consistent with Riverside Bayview because of that case’s reservation of the question whether the Corps’ jurisdiction extends to “certain wetlands not necessarily adjacent to other waters,” 474 U. S., at 124, n. 2. But it is clear from the context that the question reserved by Riverside Bayview did not concern “isolated” waters, such as those at issue in this case, but rather “isolated” wetlands. See id., at 131-132, n. 8 (“We are not called upon to address the question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water...”). Unlike the open waters present on petitioner’s site, wetlands are lands “that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.” 33 CFR § 328.3(b) (2000). If, as I believe, actually navigable waters lie at the very heart of Congress’ commerce power and “isolated,” nonnavigable waters lie closer to (but well within) the margin, “isolated wetlands,” which are themselves only marginally “waters,” are the most marginal category of “waters of the United States” potentially covered by the statute. It was the question of the extension of federal jurisdiction to that category of “waters” that the Riverside Bayview Court reserved. That question is not presented in this case. In any event, to attach significance to the Report’s statement that the committee amendments do not “redefine navigable waters,” one must first accept the majority’s erroneous interpretation of the 1972 Act. But the very Report upon which the majority relies states that “[t]he 1972 [FWPCA] exercised comprehensive jurisdiction over the Nation’s waters to control pollution to the fullest constitutional extent.” S. Rep. No. 95-370, at 75, reprinted in 4 Leg. Hist, of CWA 708 (emphases added). Even if the Court’s flawed reading of the earlier statute were correct, however, the language to which the Court points does not counsel against finding congressional acquiescence in the Corps’ 1975 regulations. Quite the contrary. From the perspective of the 1977 Congress, those regulations constituted the status quo that the proposed amendments sought to alter. Considering the Report’s favorable references to the Corps’ “continu[ing]” jurisdiction over phase 2 and 3 waters, the language concerning the failure of the amendments to “redefine navigable waters” cuts strongly against the majority’s position, which instead completely excises phase 3 waters from the scope of the Act, Ibid. The fact that petitioner can conceive of some people who may discharge fill for noneconomic reasons does not weaken the legitimacy of the Corps’ jurisdictional claims. As we observed in Perez v. United States, 402 U. S. 146 (1971), “[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class.” Id., at 154 (internal quotation marks omitted). “ Other bird species using petitioner’s site as habitat include the “ ‘Great Egret, Green-backed Heron, Black-crowned Night Heron, Canada Goose, Wood Duck, Mallard, Greater Yellowlegs, Belted Kingfisher, Northern Waterthrush, Louisiana Waterthrush, Swamp Sparrow, and Red-winged Blackbird.’ ” Brief for Petitioner 4, n. 3. In 1984, the U. S. Congress Office of Technology Assessment found that, in 1980, 5.3 million Americans hunted migratory birds, spending $638 million. U. S. Congress, Office of Technology Assessment, Wetlands: Their Use and Regulation 54 (OTA-O-206, Mar. 1984). More than 100 million Americans spent almost $14.8 billion in 1980 to watch and photograph fish and wildlife. Ibid. Of 17.7 million birdwatchers, 14.3 million took trips in order to observe, feed, or photograph waterfowl, and 9.5 million took trips specifically to view other water-associated birds, such as herons like those residing at petitioner’s site. U. S. Dept, of Interior, U. S. Fish and Wildlife Service and U. S. Dept. of Commerce, Bureau of Census, 1996 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation 45, 90 (issued Nov. 1997). Justice Thomas is the only Member of the Court who has expressed disagreement with the “aggregation principle.” United States v. Lopez, 514 U. S. 549, 600 (1995) (concurring opinion).

Tin Cup, LLC v. U.S. Army Corps of Eng'rs

Concurrence by Judge Bea THOMAS, Chief Judge: In this case, we consider what should be considered the growing season in Alaska's permafrost and, specifically, whether language in a 1993 appropriations act requires the U.S. Army Corps of Engineers (the "Corps") to continue to use a 1987 guidance manual for delineating wetlands under the Clean Water Act. We conclude that it does not, and we affirm the district court. I A The Clean Water Act (the "Act") prohibits "the discharge of any pollutant" without an appropriate permit. 33 U.S.C. § 1311(a). This prohibition applies to "the waters of the United States," 33 U.S.C. § 1362(7), and the term "pollutant" includes dredged and fill material, such as gravel or sand, 33 U.S.C. §§ 1362(6), (12). In the period relevant to this case, regulations defined "waters of the United States" to include wetlands that are adjacent to other covered waters. 33 C.F.R. § 328.3(a)(7). The Act allows the Corps to issue permits for discharging dredged or fill material into waters of the United States. 33 U.S.C. § 1344(a). In 1987, the Corps issued a guidance document "to provide users with guidelines and methods to determine whether an area is a wetland for purposes of" the Act. U.S. Army Corps of Eng'rs, Corps of Engineers Wetlands Delineation Manual (Jan. 1987) (the "1987 Manual") at 1. The 1987 Manual directs that the wetland delineation process be guided by three criteria: hydrophytic vegetation, hydric soils, and wetland hydrology. Under the 1987 Manual, satisfaction of the wetland hydrology criterion generally requires the presence of a "growing season," defined as a season in which soil temperature at 19.7 inches below the surface is above 5°C. In 1989, the Corps joined other federal agencies in adopting a new manual to supersede the 1987 Manual. Fed. Interagency Comm. for Wetland Delineation, Federal Manual for Identifying and Delineating Jurisdictional Wetlands (Jan. 1989) (the "1989 Manual"). The 1989 Manual employed less stringent methods for delineating methods wetlands than the 1987 Manual. In response to complaints from business groups and legislators, Congress limited the use of the 1989 Manual in the Energy and Water Development Appropriations Act of 1992, Pub. L. No. 102-104, 105 Stat. 510 (Aug. 17, 1991) (the "1992 Budget Act"). The 1992 Budget Act prohibited the use of funds to delineate wetlands under the 1989 Manual "or any subsequent manual not adopted in accordance with the requirements for notice and public comment of the rule-making process of the Administrative Procedure Act." 105 Stat. at 518. The 1992 Budget Act also required the Corps to use the 1987 Manual to delineate any wetlands in ongoing enforcement actions or permit application reviews. Id. The following year, Congress enacted the Energy and Water Development Appropriations Act of 1993, Pub. L. 102-377, 106 Stat. 1315 (Oct. 2, 1992) (the "1993 Budget Act"). The 1993 Budget Act stated in pertinent part: None of the funds in this Act shall be used to identify or delineate any land as a "water of the United States" under the Federal Manual for Identifying and Delineating Jurisdictional Wetlands that was adopted in January 1989 or any subsequent manual adopted without notice and public comment. Furthermore, the Corps of Engineers will continue to use the Corps of Engineers 1987 Manual, as it has since August 17, 1991, until a final wetlands delineation manual is adopted. 106 Stat. at 1324. At the same time that Congress mandated continued use of the 1987 Manual, Congress appropriated money to the U.S. Environmental Protection Agency ("EPA") to contract with the National Academy of Sciences to analyze federal wetlands regulation. See Department of Veterans Affairs and Housing and Urban Development and Independent Agencies Appropriations Act of 1993, Pub. L. 102-389, 106 Stat. 1571 (Oct. 6, 1992); H.R. Rep. No. 102-710, at 51 (1992); H.R. Conf. Rep. No. 102-902 at 41. The ensuing report, published in 1995, recommended a number of changes to the Corps' wetlands delineation process. See Nat'l Research Council., Comm. on Characterization of Wetlands, Wetlands: Characteristics & Boundaries (1995) at 3. One suggestion was that the 1987 Manual's approach to "growing season" should either be abandoned altogether or replaced by region-specific criteria for wetland delineation. Id. at 102. In response, the Corps issued a series of regional "supplements" to the 1987 Manual. These supplements provide region-specific criteria for wetland delineation. To date, the Corps has issued ten such supplements covering the entire United States. The Corps published its regional supplement for Alaska in 2007. U.S. Army Corps of Eng'rs, Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Alaska Region (Version 2.0) (Sept. 2007) (the "Alaska Supplement"). Most relevant to this lawsuit, the Alaska Supplement used a different indicator for determining the presence of a growing season than used in the 1987 Manual. Rather than focusing on soil temperature, the Alaska Supplement's definition focuses on "vegetation green-up, growth, and maintenance as an indicator of biological activity occurring both above and below ground." Alaska Supplement at 48. B Tin Cup, LLC ("Tin Cup") owns a 455-acre parcel in North Pole, Alaska, which it holds for its parent company, Flowline Alaska. Flowline Alaska seeks to use the parcel for the temporary storage of pipe and other manufactured material. The project will require the excavation and laying down of gravel material, which is a regulated "pollutant" under the Clean Water Act. See 33 U.S.C. § 1362(6). In 2004, Tin Cup obtained a permit from the Corps for the relocation project. Tin Cup proceeded to clear approximately 130 acres from the site, but by 2008, the company had not commenced gravel extraction or fill placement. Thus, in 2008, Tin Cup submitted a new permit application. The Corps examined the extent of wetlands on the site and issued a new jurisdictional determination in November 2010, concluding that wetlands were present on 351 acres of Tin Cup's 455-acre site, including about 200 acres of permafrost. In December 2010, Tin Cup administratively appealed the Corps' jurisdictional determination. Tin Cup argued that the site's permafrost cannot qualify as wetlands under the 1987 Manual. Tin Cup argued that, under the 1987 Manual, an area can only be considered a wetland if it has a growing season, and that the 1987 Manual defines a growing season as the season in which soil temperature at 19.7 inches belowground level is at or above 5°C. Tin Cup claimed that the "discontinuous permafrost" on its property did not reach that temperature, and thus that there was no growing season. In August 2011, the Corps review officer rejected Tin Cup's permafrost argument. The officer ruled in his appeal decision that the Alaska Supplement "recognizes the existence of permafrost and the need to rely instead upon locally or regionally developed methods to determine growing season dates ... as well as by direct observation of vegetation." Under the Alaska Supplement, the officer noted, "soil temperature at 19.7 inches below the surface is essentially irrelevant to determining the growing season in Alaska." In October 2012, the Corps issued Tin Cup an initial proffered permit. The permit would allow Tin Cup to discharge gravel fill into 118 acres of wetlands (out of the 165 acres that Tin Cup had applied to fill). However, the permit included mitigation conditions that Tin Cup found onerous. Tin Cup lodged further administrative appeals, which were unsuccessful. The Corps proffered in November 2013 a final permit to Tin Cup, subject to the same mitigation conditions, and it affirmed that permit in March 2015. In May 2016, Tin Cup initiated the present lawsuit, seeking to set aside the Corps' permitting decision. On its motion for summary judgment, Tin Cup argued that the 1992 and 1993 Budget Acts continue to require that the Corps use the 1987 Manual and its definition of a growing season, without considering the Alaska Supplement. The district court granted summary judgment to the Corps, holding that most of the language in the 1992 and 1993 Budget Acts was limited to the use of funds appropriated in those statutes. Tin Cup appeals that order. II We review the district court's grant of summary judgment de novo. Ocean Advocates v. U.S. Army Corps of Eng'rs , 402 F.3d 846 (9th Cir. 2005). We agree with the district court that the 1993 Budget Act does not require the Corps to continue to use the 1987 Manual's guidelines to delineate wetlands, and we affirm. A While appropriations acts are "Acts of Congress" that can change substantive law, we interpret them somewhat differently than other statutes. An appropriation of funds is generally not permanent or available continuously without an express provision. 31 U.S.C. § 1301(c). The same rule applies to provisions of appropriations acts altering substantive law. Such provisions "are generally only 'in force during the fiscal year of the appropriation and do not work a permanent change in the substantive law.' " Nat. Res.Def. Council v. U.S. Forest Serv. , 421 F.3d 797, 806 n.19 (9th Cir. 2005) (quoting Seattle Audubon Soc'y v. Evans , 952 F.2d 297, 304 (9th Cir. 1991) ). This principle dates to the Supreme Court's opinion in Minis v. United States , 40 U.S. (15 Pet.) 423, 10 L.Ed. 791 (1841), in which Justice Story stated: It would be somewhat unusual, to find engrafted upon an act making special and temporary appropriations, any provision which was to have a general and permanent application to all future appropriations. Nor ought such an intention on the part of the legislature to be presumed, unless it is expressed in the most clear and positive terms, and where the language admits of no other reasonable interpretation. Id. at 445. There is thus "a very strong presumption" that if an appropriations act changes substantive law, it does so only for the fiscal year for which the bill was passed. Bldg. & Constr. Trades Dep't, AFL-CIO v. Martin , 961 F.2d 269, 273 (D.C. Cir. 1992). To rebut this presumption, a party must point to "a clear statement of 'futurity,' such as 'hereafter.' " Nat. Res. Def. Council , 421 F.3d at 806 n.19 ; see also United States v. Vulte , 233 U.S. 509, 514, 34 S.Ct. 664, 58 L.Ed. 1071 (1914) (holding that appropriations acts did not permanently change substantive law because they did not contain "words of prospective intention"). We will only conclude that an appropriations act has made a permanent change to substantive law if Congress is clear about its intentions. Absent a clear statement of futurity, a provision in an appropriations act is only in force for the fiscal year of the appropriation. B The provision at issue in the 1993 Budget Act does not contain a clear statement of futurity. It is significant that the provision does not contain the word "hereafter." "Hereafter" is the most common word of futurity. Government Accountability Office, Principles of Federal Appropriations Law (4th ed. 2016 rev.) at 2-86. Congress used "hereafter" throughout the 1993 Budget Act to identify the continuing availability of certain appropriations, see 106 Stat. at 1325, 1330-32, 1338, 1339, 1342-43, and continuing prohibitions on certain types of spending, see 106 Stat. at 1331, 1343. When Congress uses particular language in one part of a statute and omits it elsewhere, "it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." San Francisco v. U.S. Dep't of Transp. , 796 F.3d 993, 999 (9th Cir. 2015) (quoting Russello v. United States , 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ). Even if the provision's second paragraph constituted a command that the Corps use the 1987 Manual, the absence of "hereafter" suggests that Congress did not intend the provision to bind the Corps indefinitely. Tin Cup argues that the words "will" and "until" in the provision's second paragraph are words of futurity. No authority exists holding that those words in an appropriations bill, absent more, indicate futurity. Nonetheless, Tin Cup argues that if "will" and "until" were not construed as words of futurity, then the second paragraph would be superfluous. If Congress only meant to mandate the use of the 1987 Manual in fiscal year 1993, Tin Cup argues, then its aim was accomplished by the first paragraph alone. That paragraph prohibited any funds from being used in fiscal year 1993 to delineate wetlands in accordance with the 1989 Manual, and the 1987 Manual was the only available alternative. These two paragraphs reasonably can be interpreted as complementary statements. The first paragraph is a command about what the Corps could not do during fiscal year 1993, and the second paragraph is a description of what Congress expected it to do instead. Indeed, the first paragraph uses the mandatory term "shall," while the second paragraph uses the word "will." The Supreme Court has distinguished descriptive "will" statements from mandatory "shall" statements. See Norton v. Southern Utah Wilderness Alliance , 542 U.S. 55, 69, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (concluding that a statute's requirement that an agency "shall" act in accordance with a land use plan was a mandatory statement, but that a statement in the land use plan about what the agency "will" do was not "a binding commitment"). The 1993 Budget Act's statement that the Corps "will continue to use" the 1987 Manual, 106 Stat. at 1324, should be viewed in these terms. The provision recorded Congress's understanding of the Corps' intention to delineate wetlands using the 1987 Manual. It does not bind the Corps to using the 1987 Manual. Had Congress intended to bind the Corps, it would have used the word "shall." This interpretation comports with the "well-established canon of statutory interpretation that the use of different words or terms within a statute demonstrates that Congress intended to convey a different meaning for those words." S.E.C. v. McCarthy , 322 F.3d 650, 656 (9th Cir. 2003) (collecting cases). This distinction between "shall" and "will" statements is consistent with other provisions of the 1993 Budget Act. Congress seemed to use "will" statements to describe the consequences of mandatory commands. In one provision, Congress "directed" the Corps to continue an ongoing feasibility study and then stated that the study "will consider the agricultural benefits of using both traditional and nontraditional methods ..." 106 Stat. at 1316. In another provision, Congress stated that funds "shall be available" for infrastructure studies and then stated that those funds "will be administered by" the Department of Energy. 106 Stat. at 1334. The Corps' interpretation of the provision at issue-that "shall" connotes a mandatory obligation and "will" connotes a description of what Congress expected to happen-is a reasonable reading of the statute. It cannot be said that the language of the statute "admits of no other reasonable interpretation" than the interpretation that Tin Cup has proffered. Minis , 40 U.S. at 445. Tin Cup urges us to conclude that the structure of the paragraphs in the 1993 Budget Act implies that the second paragraph contains a clear statement of futurity. Tin Cup observes that the 1987 Manual provision appears as a separate paragraph from the preceding provision on appropriations for fiscal year 1993, and it argues that this suggests that the two provisions are independent. Thus, Tin Cup argues, the first paragraph applies to fiscal year 1993 and the second paragraph enacts an unrelated permanent change in the law. More relevant for discerning futurity is the relationship between the contents of the two paragraphs. See GAO, Principles of Federal Appropriations Law at 2-90 (stating that when a "provision bears no direct relationship to the appropriation act in which it appears, this is an indication of permanence ... The closer the relationship, the less likely it is the provision will be viewed as permanent"). The two paragraphs here bear a close relationship: they both concern the manual to be used in making wetlands delineation. This weighs strongly in favor of viewing the second paragraph as a descriptive clarification of the first, rather than as an independent provision establishing permanent law. The fact of a paragraph break does not on its own imply that the second paragraph was meant to be independent of the first paragraph. Tin Cup observes that elsewhere in the 1993 Budget Act, Congress did not use a paragraph break when restricting uses of funds appropriated in fiscal year 1993. See, e.g. , 106 Stat. at 1323-24. It argues that this suggests that a paragraph break was used intentionally to set apart the second paragraph as an independent provision. However, the structure of these provisions bolster's the Corps's interpretation of the 1987 Manual provision. In each of the examples that Tin Cup cites, the second provision was clearly mandatory: it used the word "shall" to set a limitation on how an appropriation in the first provision was to be used. See 106 Stat. at 1323-24. In the paragraphs at issue in this case, the fact that Congress did not string together the two provisions and did not use the words "Provided" or "Provided further" further suggests that the second paragraph was not mandatory and was instead a description of the consequences of the mandate in the first paragraph. Tin Cup has not shown a clear statement from Congress that the second paragraph in the 1993 Budget Act enacted a mandatory, permanent change in substantive law. III Given that we require a clear statement of futurity in order to give permanent effect to a provision of an appropriations act, we need not delve into legislative history to explain the 1993 Budget Act's provisions. See Bldg. & Constr. TradesDep't, AFL-CIO , 961 F.2d at 274 (observing that "legislative history can only help to explain a statute; it cannot reconstruct it"). Given the strong presumption against appropriations acts enacting permanent changes in substantive law, the absence of a clear statement of futurity in the 1993 Budget Act is dispositive. The 1993 Budget Act prohibited the Corps from using the 1987 Manual during fiscal year 1993, and Congress included a second paragraph to explain what it expected the Corps to do instead. AFFIRMED. BEA, Circuit Judge, concurring in judgment: I agree with the majority's ultimate conclusion that the district court did not err in granting summary judgment to the Army Corps of Engineers (the "Corps"). However, because I think that the 1993 Budget Act contained sufficient words of futurity to bind the Corps after the 1993 fiscal year, I write separately. I A As discussed by the majority, the Corps makes determinations regarding what is a "wetland" within the meaning of the Clean Water Act ("CWA") and its implementing regulations. The first such manual was published in 1987 (the "1987 Manual"). The 1987 Manual identified three key elements that define the presence of wetlands: (1) the presence of vegetation adapted to saturated soil ("vegetation"); (2) the presence soil that is permanently or seasonally saturated by water ("hydric soil"); and (3) appropriate hydrologic conditions, such as the saturation of soil during the growing season ("hydrology"). Importantly for this case, an appendix to the 1987 Manual instructs that the "growing season" can be identified as the days that the soil at a depth of 19.7 inches reaches a temperature above 5 degrees Celsius. In 1989, the Corps released a new version of the wetlands manual (the "1989 Manual"). However, in appropriations acts passed in both 1992 and 1993, Congress sought to prevent the Corps from using the 1989 Manual to make wetlands determinations. In the 1992 Act, Pub. L. No. 102-104, 105 Stat. 510 (1991) (the "1992 Budget Act"), Congress prohibited the use of funds appropriated by the bill to delineate wetlands under the 1989 Manual or any subsequent manual "not adopted in accordance with the requirements for notice and public comment." Title I, 105 Stat. at 518. The 1992 Budget Act also required the Corps to use the 1987 Manual to delineate any wetlands in any ongoing enforcement actions or permit application reviews. Id . These provisions effectively required the Corps to abandon the 1989 Manual and revert to the 1987 Manual during the 1992-1993 fiscal year. Because the 1992 Budget Act was an appropriation bill, it was necessary to revisit the issue of the wetlands Manual during the 1993 appropriations process. The 1993 Budget Act again prohibited the Corps from using any funds to implement the 1989 Manual or any subsequent manual "adopted without notice and public comment." Title I, 106 Stat. at 1324. However, the 1993 Budget Act included an additional provision which stated that "the Corps of Engineers will continue to use the Corps of Engineers 1987 Manual, as it has since August 17, 1991, until a final wetlands delineation manual is adopted." Title I, 106 Stat. at 1324. The 1993 Budget Act also appropriated funds for the National Research Council ("NRC") to make recommendations to EPA and Congress regarding future wetlands regulation. H.R. Rep. No. 102-710, at 51. In 1995, the NRC recommended a number of changes to the wetlands delineation process. See Nat'l Research Council, Comm. on Characterization of Wetlands, Wetlands: Characteristics & Boundaries (1995) (National Research Council Report). Among those changes, the NRC recommended that the Corps should either abandon its focus on "growing seasons" or that wetland determinations should become more regionally focused. In response, the EPA has issued a number of "regional supplements" to the 1987 Manual. In 2007, after public notice and comment, the Corps published its regional supplement for Alaska (the "Alaska Supplement"), which provides specific guidance regarding the identification of wetlands in Alaska. B Tin Cup, LLC owns a 455-acre parcel of land near North Pole, Alaska. Tin Cup seeks to build a pipe fabrication and storage facility on the parcel. The relocation project will entail the placement of a gravel pad, as well as the construction of several buildings and a railroad spur. Thus, the project will require the excavation and laying down of gravel material, which is a regulated "pollutant" under the Clean Water Act. See 33 U.S.C. § 1362(6). The Corps examined the extent of wetlands on the site and issued a jurisdictional determination, concluding that wetlands were present on 351 acres of Tin Cup's 455-acre site. The Corps' wetlands determination included about 200 acres of permafrost, which it found qualified as a wetland using the Alaska Supplement. The Corps issued Tin Cup a permit for the project, but the permit included special conditions requiring Tin Cup to, among other things, construct a "reclaimed pond and riparian fringe" of between 6 and 24 acres total in size and a 250-foot-wide buffer around the riparian fringe totaling at least 23 acres. Tin Cup objected to the Corps' jurisdictional determination, arguing that the permafrost was not a "wetland." Tin Cup argued that because the permafrost's ground temperature at a depth of 19.7 inches never rises above 5 degrees Celsius, the permafrost areas have no "growing season" within the meaning of the 1987 Manual and thus were not wetlands. After a series of regulatory proceedings and appeals, including two administrative appeals under the APA, the Corps' jurisdictional determination and conditions remained unchanged. Dissatisfied with that result, Tin Cup filed the instant lawsuit in the District of Alaska, seeking review of the Corps' permit pursuant to the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701 - 706. The parties filed cross-motions for summary judgment. The district court granted The Corps' motion for summary judgment and denied Tin Cup's motion for summary judgment. Tin Cup appealed the district court's summary judgment order to this court. We review the district court's order granting summary judgment de novo. Ocean Advocates v. U.S. Army Corps of Eng'rs , 402 F.3d 846 (9th Cir. 2005). II As the majority correctly states, the first key issue we are called upon to decide is whether the 1993 Budget Act requires the Corps to use the 1987 Manual until it adopts a new manual via notice and comment. We have held that "[a]s a general rule of thumb, appropriations acts are in force during the fiscal year of the appropriation and do not work a permanent change in the substantive law." Seattle Audubon Soc'y v. Evans , 952 F.2d 297, 304 (9th Cir. 1991). "To rebut this presumption takes a clear statement of 'futurity,' such as 'hereafter.' " Nat. Res. Def. Council v. U.S. Forest Serv. , 421 F.3d 797, 806 (9th Cir. 2005). Ultimately, "[t]he question is one of legislative intent." Evans , 952 F.2d at 304. The relevant portion of the 1993 Budget Act contains two provisions. In the first paragraph, Congress prohibited the Corps from using any funds appropriated by the 1993 Budget Act to implement the 1989 version of the Corps' wetlands manual or any subsequent manual "adopted without notice and public comment." Title I, 106 Stat. at 1324. Next, the 1993 Budget Act includes a provision that states that "the Corps of Engineers will continue to use the Corps of Engineers 1987 Manual, as it has since August 17, 1991, until a final wetlands delineation manual is adopted." Title I, 106 Stat. at 1324. In my view, the plain language of the 1993 Budget Act demonstrates Congress's clear intent that the Corps continue using the 1987 Manual beyond the 1993-1994 fiscal year. The relevant provision contains two indications of futurity. First, the Act provides that the Corps "will continue" to use the 1987 Manual. The word "will" is a word of futurity. See Merriam-Webster Dictionary 603 (Home and Office Ed., 1995) (defining "will" to mean "used as an auxiliary verb to express ... simple futurity"). Second, the Act tells the Corps how long it must continue to use the 1987 Manual: "until" it adopts a new manual. Congress has explicitly recognized the word "until" as a word of futurity in the context of appropriations bills. See H.R. Rep. No. 88-1040, at 55 (1963) (the "most common technique" to make funds "available for longer than a one-year period" is to add the words " 'to remain available until expended' "). The combination of "will" and "until" in the 1993 Budget Act demonstrate Congress's clear intent for the Act to bind the Corps beyond the 1993-1994 fiscal year. The majority's primary response on this point is the note that the 1993 Budget Act does not use the word "hereafter." The majority argues that, "hereafter" is the most common word of futurity in appropriations bills, that Congress used "hereafter" elsewhere in the 1993 Budget Act, and that the absence of "hereafter" in this provision demonstrates that Congress did not intend to express futurity. This argument is unpersuasive. The majority cites the Government Accountability Office's ("GAO") "Red Book" on the interpretation of appropriations bills for the proposition that "hereafter" is the most common word of futurity. See Government Accountability Office, Principles of Federal Appropriations Law (4th ed. 2016 rev.) at 2-86. But the Red Book itself recognizes that "hereafter" is not the only word of futurity and that, consistent with past congressional use, "until" can also be used to express futurity in certain contexts. See id. at 2-26. We have previously recognized the expertise of the GAO in this area and have relied on the Red Book in interpreting appropriations bills. See, e.g. Indus. Customers of Nw. Utils. v. Bonneville Power Admin. , 767 F.3d 912, 923 (9th Cir. 2014). The majority provides no basis to rely on that expertise selectively. The majority is, of course, correct that Congress used the word "hereafter" in other portions of the 1993 Budget Act when expressing futurity. But the fact that Congress used one word of futurity in some contexts and another word of futurity in another context is hardly remarkable. This is particularly true when both the GAO and Congress itself have recognized that there are other ways, including the use of the word "until," to express futurity clearly. Next, the majority contends the Corps is not bound by the second paragraph of the 1993 Budget Act because the paragraph is a description of what the Corps will do, not a command. The majority bases this argument on the use of the word "will" instead of the word "shall." The majority argues that by using the word "will," Congress intended to describe what the Corps had already stated it would do if it could not use the 1989 Manual (namely, use the 1987 Manual) and did not intend to command the Corps to take that course of action. But the word "will" can be a command and is often indistinguishable from the word "shall." See Black's Law Dictionary 1771 (Revised 4th Ed. 1968) (defining "will" as "[a]n auxiliary verb commonly having the mandatory sense of 'shall' or 'must' "). The context of the provisions does not provide a reason to deviate from this plain meaning. In fact, Congress's use of "furthermore" to start the second paragraph, immediately following a paragraph that contained a command, demonstrates that Congress understood the second paragraph to contain a second, additional command . Additionally, if the majority is correct, then the second paragraph is likely superfluous, running afoul of the canon that statutes should be construed so as to give effect to all of their provisions. See Corley v. United States , 556 U.S. 303, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) ; see also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 174 (2012). If all Congress meant to achieve through the 1993 Budget Act was to bar the Corps from using funds to enforce the 1989 Manual for the coming fiscal year (which is what the majority and the Corps contend), it could have stopped writing after the first paragraph. Congress had no need to describe in a nonbinding fashion what the Corps would do as a result of its command. In short, "will" and "until" are words of futurity that express Congress's intent for the 1993 Budget Act to bind the Corps beyond the 1993-1994 fiscal year. Thus, the much stronger reading of the 1993 Budget Act is that Congress was commanding the Corps to continue its use of the 1987 Manual until it adopted a new wetlands manual. As a result, I would hold that the Corps was required to apply the 1987 Manual to Tin Cup's case. III Nonetheless, I would still hold that the district court did not err in granting the Corps' summary judgment on Tin Cup's claims. Although the 1993 Budget Act continues to bind the Corps, the 1993 Budget Act does not preclude the Corps from applying the Alaska Supplement because language from the 1987 Manual itself allows the Corps to amend and supplement the 1987 Manual and the Alaska Supplement is consistent with that language. The 1987 Manual identifies three factors that should be evaluated in making wetlands determinations: vegetation, hydric soil, and hydrology (the "Three Factors"). The 1987 Manual requires that, for the hydrology element to be satisfied, the regulator must "establish that a wetland area is periodically inundated or has saturated soils during the growing season." An appendix to the original 1987 Manual defined "growing season" in terms of the days on which soil temperatures were higher than 5 degrees Celsius at a depth of 19.7 inches. But the 1987 Manual acknowledged that hydrology was "often the least exact" of the Three Factors and allowed regulators to approximate the growing season based on "frost free days" or establish hydrology through direct observation of conditions on the ground, such as inundation or soil saturation, sediment deposits, drainage patterns, or certain characteristics of vegetation. In light of these inexact standards, the Corps argues that the language of the 1987 Manual clearly contemplates regional supplements like the Alaska Supplement, which can alter some of the finer points of wetlands identification based on regional factors. Indeed, the 1987 Manual provides that the methods for analyzing the Three Factors can be altered, as "site-specific conditions may require modification of field procedures." The 1987 Manual explicitly acknowledges that "certain wetland types, under the extremes of normal circumstances, may not always meet all the wetland criteria defined in the manual." The 1987 Manual goes on to state that "such wetland areas may warrant additional research to refine methods for their delineation." Relying on this language, the Corps has made alterations to the method for identifying hydrology and the "growing season" for nearly three decades, including before the 1993 Budget Act was passed. In 1992, before the 1993 Budget Act was passed, the Corps issued guidance stating that, although the soil temperature factor noted in the appendix of the 1987 Manual was the "primary" definition of growing season, "local means of determining growing season may be more appropriate and can be used." See U.S. Army Corps of Engineers, "Clarification and Interpretation of the 1987 Manual" (Mar. 6, 1992). The Alaska Supplement-including its definition of the "growing season," which is at issue here-is nothing more than formal guidance regarding the "local means" that were permitted under the 1987 Manual and its subsequent guidance documents. Given that the Corps was already allowed to use such "local means" at the time Congress passed the 1993 Budget Act, the 1993 Budget Act cannot be read to prohibit use of the Alaska Supplement. Tin Cup does not meaningfully dispute that the Corps has at least some ability to supplement or amend the 1987 Manual. Instead, Tin Cup's only argument is that the Alaska Supplement is not a "true" supplement because it disregards the soil temperature factor in determining the growing season. In Tin Cup's view, because the Alaska Supplement does not consider ground temperature in determining the growing season, it contradicts the 1987 Manual and cannot be a "supplement" to that Manual. This argument is not persuasive for at least two reasons. First, soil temperature was not even the exclusive method of determining growing season and hydrology under the original 1987 Manual. As discussed above, the Manual allowed regulators to "approximate" the growing season based on frost free days or establish hydrology without reference to a "growing season" through direct observation of conditions on the ground, such as inundation or soil saturation, sediment deposits, drainage patterns, or certain characteristics of vegetation. As a result, declining to use soil temperature as part of the hydrology analysis would have been permissible under the original 1987 Manual, given certain circumstances. Additionally, the 1987 Manual as it existed and was used at the time of the 1993 Budget Act clearly permitted regulators to disregard soil temperature in favor of "local means" of determining a growing season. See U.S. Army Corps of Engineers, "Clarification and Interpretation of the 1987 Manual" (Mar. 6, 1992). The Alaska Supplement represents the Corps' attempt to define just such "local means" for making wetlands determinations in Alaska. Thus, there is no basis to conclude that soil temperature must always be considered when making a wetlands determination and that any method that does not consider soil temperature contradicts the 1987 Manual. Consequently, although Tin Cup is correct that the Corps is required to use the 1987 Manual, I would hold that the Alaska Supplement is a proper supplement that is authorized by the 1987 Manual itself. As a result, I would conclude that the district court did not err when it rejected Tin Cup's argument that the Corps should be barred from using the Alaska Supplement. Following the parties' form, we refer to these two paragraphs as the "first paragraph" and the "second paragraph," respectively. The majority cites Norton v. S. Utah Wilderness All. , 542 U.S. 55, 69, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) for the proposition that "will" is not necessarily binding. But Norton is distinguishable. In Norton , the Bureau of Land Management ("BLM") was required to create land management plans for certain parcels of federal land. Id . at 58-61, 124 S.Ct. 2373. One of the land management plans stated that the BLM "will" conduct a monitoring program. Id . When the BLM did not conduct a monitoring program, environmental plaintiffs sued, arguing that the BLM was bound to fulfill its commitments under the land management plan. Id. The district court dismissed the claims, but the Tenth Circuit reversed. Id. The Supreme Court reversed the Tenth Circuit, holding that the use of the word "will" in the land management plans did not create a binding commitment on the part of the BLM. Id . at 67-72, 124 S.Ct. 2373. Norton is distinguishable from this case for at least two reasons. First, it did not concern the interpretation of an appropriations bill, but rather the interpretation of words in a BLM land management plan. Second, Norton involved a unilateral commitment by the BLM. Norton did not consider whether "will" was a "command," because there was no one to command. The question was whether "will" created a binding commitment, not whether it was being used to command a specific course of action by another party. Tin Cup argues that these statements relate to certain known "problem areas" and that permafrost was not one such "problem area." However, Tin Cup's argument is undercut by subsequent Corps guidance, which specifically stated that the list of "problem areas" was non-exclusive and the 1987 Manual's statements regarding flexibility were meant to be broader than the list of "problem areas." Tin Cup argues that there must be some limits on the Corps' ability to amend the 1987 Manual or else the 1993 Budget Act would be rendered meaningless. This may be true, but the 1987 Manual itself provides those outer bounds. For instance, the Manual states that, although wetlands determinations are flexible and subject to local considerations, "the basic approach" of using the Three Factors of vegetation, hydric soils, and hydrology "should not be altered." Thus, if the Corps attempted to adopt a regional supplement that applied only two of the Three Factors, Tin Cup's argument would have more force. Similarly, if the Corps attempted to adopt a regional supplement that replaced the Three Factors with other factors, that action might exceed the Corps' authority. But in this case, the Corps' Alaska Supplement retains the Three Factor evaluation. The Alaska Supplement merely provides different, region-specific methods for identifying the Three Factors in Alaska's unique environment.

Sisseton-Wahpeton Oyate of the Lake Traverse Reservation v. U.S. Corps of Eng'rs

TUNHEIM, District Judge. Merlyn Drake owns real property adjacent to Enemy Swim Lake in South Dakota and has been in the process of building a road across his property since 1998. Drake purportedly uses this road for agricultural purposes. Because constructing his road requires dredging and filling portions of Enemy Swim Lake and its surrounding creeks and inlets, he applied for permits from the United States Army Corps of Engineers ("the Corps") under the Clean Water Act ("CWA"). Between 1998 and 2009, the Corps issued six permit and exemption determinations to Drake. But Drake is not the only property owner on Enemy Swim Lake. The majority of the lake's shoreline is owned by the Sisseton-Wahpeton Oyate Tribe (the "Tribe"). The lake is of significant historical and cultural value to the Tribe, and the Tribe fears that Drake's activities harm the lake. The Tribe asserts that Drake misrepresented his plans to the Corps and intends to develop the land rather than use it for agricultural purposes. In 2010, the Tribe sent the Corps a letter requesting that it recapture Drake's road project and order Drake to remove the entirety of his road. The Corps concluded that Drake was continuing to use his land for agricultural purposes and declined to intervene. The Tribe brought the present action, arguing that the Corps had violated the Administrative Procedure Act ("APA"), the CWA, and the National Historic Preservation Act ("NHPA") in issuing the permit and exemption determinations to Drake. With one exception, the District Court dismissed the Tribe's claims. The Tribe appeals. We affirm. BACKGROUND I. THE CLEAN WATER ACT The CWA prohibits "the discharge of any pollutant," including dredged or fill material. 33 U.S.C. §§ 1311(a), 1362(6) ; see also id. § 1344(a). Persons wishing to discharge dredged or fill material into navigable waters must obtain a permit from the Corps. Certain activities are exempted from the statutory permitting requirements. Relevant here, one exemption allows dredging "for the purpose of construction or maintenance of farm roads ... where such roads are constructed and maintained, in accordance with best management practices." Id. § 1344(f)(1)(E). But the statutory exemptions are covered by a "recapture" provision. Under the recapture provision, an otherwise exempt discharge requires a permit if it brings "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." Id. § 1344(f)(2). In effect, an activity that would normally be exempt-such as the construction of a farm road-requires a permit under the CWA if it ceases to be used for the exempted purposes. For nonexempt activities, the Corps has the authority to issue individual permits and/or general permits for the discharge of dredged or fill material. Id. § 1344(a), (e). The Corps has created a system of general permits known as "nationwide permits" to "regulate with little, if any, delay or paperwork certain activities having minimal impacts." 33 C.F.R. § 330.1(b). Nationwide permits are subject to certain requirements. Notably, a project pursued pursuant to a nationwide permit must be a "single and complete project." Reissuance of Nationwide Permits, 72 Fed. Reg. 11,092, 11,192-11,196 (Mar. 12, 2007). Nationwide Permit 14 authorizes linear transportation projects (such as roads) so long as the water crossing is in nontidal waters and does not cause the loss of greater than one-half acre of waters of the United States. Id . at 11,182-11,184. Additionally, nationwide permits are subject to the requirements of the NHPA. Reissuance of Nationwide Permits, 72 Fed. Reg. at 11,192. Under the NHPA, a federal agency must "take into account the effect of [an] undertaking on any historic property" prior to the issuance of any license. 52 U.S.C. § 306108. The NHPA defines "undertaking" to include "a project, activity, or program ... requiring a Federal permit, license, or approval." 54 U.S.C. § 300320(3). The Corps has adopted its own regulations implementing the NHPA for purposes of permitting under the CWA. 33 C.F.R. § 325 app. C. II. FACTUAL BACKGROUND A. Drake's Permit Applications Merlyn Drake owns real property, which he purportedly uses for agricultural activities, adjacent to Enemy Swim Lake. Since 1998, Drake has been in the process of building a road across his property. Between 1998 and 2009, Drake filed with the Corps six permit applications under the CWA to dredge and fill portions of Enemy Swim Lake in furtherance of building his road. On appeal, the Tribe challenges the Corps's responses to three of these permit applications: (1) the 2003 farm-road exemption determination; (2) the 2006 farm-road exemption determination; and (3) the 2009 nationwide-permit determination. In 1998, Drake applied for a permit to build a bridge over an inlet of the lake. The Corps treated Drake's project as an exempt farm road. Drake later abandoned the project. In 2000, Drake applied for a permit to fill the edge of Enemy Swim Lake to create a road bed to connect his house to an established road. The Corps issued Drake a nationwide-permit determination under then-Nationwide Permit 26. See Final Notice of Issuance, Reissuance, and Modification of Nationwide Permits, 61 Fed. Reg. 65,874, 65,916 (Dec. 13, 1996) (permitting such discharge into headwaters or isolated waters if it does not cause the loss of more than three acres). In 2003, Drake applied for two permits to further fill the lake for additional road projects. First, Drake applied for a permit to build a road system "to unify residents to a single road complete with recorded easements." In response, the Corps issued Drake a nationwide-permit determination under Nationwide Permit 14. Second, Drake applied for a permit to build an access road across the inlet, wetland, and creek on the east side of Enemy Swim Lake to provide access to his land for cattle grazing. In response, the Corps issued Drake a farm-road exemption determination. In 2005, Drake applied for a permit to fill a creek that flows into Enemy Swim Lake in order to construct a bridge and continue access to his pasture. In May 2006, the Corps issued Drake another farm-road exemption determination. Finally, in 2008, Drake applied for a permit to build an access road "necessary to totally access [his] land." Drake initially represented to the Corps that he intended the road to be used for agricultural purposes. After further discussion with the Corps, Drake disclosed that he would potentially use the road to access a second residence that he intended to build. In May 2009, the Corps issued Drake a nationwide-permit determination under Nationwide Permit 14. B. The Tribe's Concerns Drake's permit applications have been fraught with public challenges from the Tribe and other neighbors. Following the 2003 nationwide-permit and farm-road exemption determinations, the Tribe became concerned about Drake's road projects. The Tribe owns eighty-eight percent of the shoreline of Enemy Swim Lake, which is of cultural, historical, and religious significance to the Tribe. In 1867, the Tribe's treaty with the United States government was partially negotiated on the shores of the lake. The lake is home to the Tribe's historic burial grounds. Its plants are used for ceremonial and medicinal purposes, and Tribe members fish on the lake. There can be no doubt that the Tribe has a significant interest in protecting the lake and the land surrounding it. In 2004, Alvah Quinn, the Tribe's Fish and Wildlife Director, received a phone call about Drake's plan to build a road. The Tribe became concerned that Drake's projects might interfere with the ability of its members to fish on the lake. Quinn called James Oehlerking, a member of the Corps, about the Tribe's concern, and further expressed concern that Drake would develop the land rather than use the road for agricultural purposes. Public concerns escalated, and eventually Senator Tim Johnson requested that the Corps hold a meeting to discuss concerns related to Drake's projects. The meeting was held on January 25, 2005. Quinn and Floyd DeCoteau, another member of the Tribe, attended. All four permit and exemption determinations issued by the Corps from 1998 to 2003 were discussed. According to the Corps, "[a]s a result of the meeting, the Corps agreed to review the regulatory actions to determine if they were appropriate or if [the Corps] should assert discretionary authority by modifying, suspending, or revoking the nationwide permits." After further review, the Corps concluded that it did not "believe any modification or revocation of the permits [was] required." In the years following the 2005 meeting, the Tribe discussed Drake's projects with the Corps on a number of occasions. On February 8, 2007, Quinn called the Corps to express concerns that Drake was leveling land for cabins rather than to build a farm road. In July 2009, the Tribe again met with the Corps to express its concern that Drake was not using his land for agricultural purposes. The Corps disagreed. The Tribe's complaints culminated in a March 2, 2010, letter sent to the Corps. The Tribe argued that Drake obtained the permit and exemption determinations through misrepresentations about his projects and was abusing the farm-road exemption. Seeking relief, the Tribe argued that Drake's roads fall within the CWA's recapture provision and that the Corps must (1) require Drake to remove the road, (2) require Drake to obtain a permit to continue construction of the road, and (3) impose civil penalties on Drake for his allegedly willful violations of the CWA. The Tribe also accused the Corps of failing to comply with the requirements of the NHPA. The Corps responded in an August 30, 2010, letter. With respect to its exemption determinations, the Corps stated that it believed, and continues to believe, that its decisions were supported by sufficient evidence that Drake was actually using his farm road for agricultural purposes. The Corps concluded that the exempted farm roads could not be recaptured because the roads continued to meet the requirements for the farm-road exemption. With respect to its nationwide-permit determinations, the Corps clarified that these projects were not exempt from regulation. However, according to the Corps, the roadways fit within the parameters of the nationwide permits and were each a single and complete project. III. Procedural History The Tribe brought this case on November 7, 2011. The Tribe asserted ten claims against the Corps under the APA, the CWA, and the NHPA arising out of the permit and exemption determinations issued to Drake: 1. The Corps's decision that Drake's road is an exempt farm road is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 2. The Corps's failure to correct its initial decisions that Drake's road is an exempt farm road is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 3. The Corps must regulate Drake's unfinished project under the CWA. 4. The Corps's determination that Drake's activities have not been recaptured is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5. The Corps's determination that Drake's road complies with its best management practices is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 6. The Corps's determination that Drake's fill of a spring feeding Enemy Swim Lake need not be regulated is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 7. The Corps's determination to allow Drake to stack permit applications, exemptions, and nationwide permits is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 8. The Corps violated the National Historic Preservation Act. 9. The Corps failed to mitigate. 10. The Corps intentionally violated the CWA. The Tribe requested that the District Court enjoin the Corps from permitting any activities in furtherance of the construction of the road and order the Corps to require Drake to remove the entire road. The District Court held four hearings before dismissing the majority of the Tribe's action. 1. Finality of the 2010 Letter The Corps moved to dismiss the Tribe's claims based on the Corps's 2010 response letter. The Tribe argued that the Corps's initial permit and exemption determinations were preliminary decisions and that there was no final decision on any of those matters until August 30, 2010. The District Court concluded that the Corps completed its decisionmaking process with respect to those permit and exemption determinations when it issued Drake the determination letters. Thus, the District Court concluded that the Corps's determination letters constituted final agency actions and accordingly dismissed "all claims the viability of which hinges on considering the August 30, 2010 letter to be a final agency action." 2. Justiciability of the Recapture Claim The Corps moved to dismiss the Tribe's claims to the extent that they challenged nonjusticiable enforcement decisions of the Corps. The District Court cited Missouri Coalition for the Environment v. Corps of Engineers of the U.S. Army for the proposition that "a decision not to modify, suspend or revoke a Section 404 permit is one committed to the Corps' absolute discretion and, as such, it is not reviewable under the Administrative Procedures Act." 866 F.2d 1025, 1032 n.10 (8th Cir. 1989), abrogated on other grounds , Goos v. ICC , 911 F.2d 1283 (8th Cir. 1990). With respect to the farm-road exemptions, the District Court concluded that "[t]he Corps did not in fact 'modify, suspend or revoke' a § 404 permit here, but rather initially found an exemption to § 404 that allowed Drake to pursue certain projects." With respect to the nationwide permits, the District Court concluded that "[t]he Corps ... failed to show that it has absolute agency discretion over finding § 404 exemptions and granting Nationwide Permits. ... However, the Corps' decision 'not to modify, suspend or revoke' those determinations subsequently appears to be committed to the Corps' absolute discretion." Thus, the District Court denied the Corps's motion to dismiss to the extent that the Corps sought dismissal of the Corps's permit and exemption determinations, but dismissed the Tribe's claims to "the extent that the Corps' decisions not to modify, suspend, or revoke those determinations are non-justiciable." 3. Statute of Limitations The Corps moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction because the Tribe's claims were brought after the six-year limitation period had expired. The District Court concluded that the Tribe was aware of the Corps's permit and exemption determinations by January 25, 2005, and the statute of limitations began running on that date. However, the District Court stated that it could not "determine exactly which permits and exemptions were discussed in such a manner, without hearing evidence and evaluating the memory and credibility of witnesses." In response, the Tribe argued that it was entitled to equitable tolling. The District Court concluded that 28 U.S.C. § 2401(a) is jurisdictional and denied the Tribe's request for tolling. The District Court broadly granted the Corps's motion "as to any and all Counts and claims challenging Corps' exemptions and Nationwide Permit determinations that were discussed during the January 25, 2005 meeting as having been granted, authorized, or determined." Subsequently, the District Court held an evidentiary hearing to determine which permit and exemption determinations were discussed at the January 25, 2005, meeting. Following this hearing, the District Court found that the 1998 exemption determination, the 2000 nationwide-permit determination, the 2003 exemption determination, and the 2003 nationwide-permit determination were all discussed at the meeting and concluded that any claims arising from those permit and exemption determinations were barred by the statute of limitations. The Tribe filed a motion for reconsideration on its request for equitable tolling based on intervening authority. The Tribe argued that the Supreme Court's decision in United States v. Kwai Fun Wong , --- U.S. ----, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015), required the District Court to conclude that 28 U.S.C. § 2401(a) is not jurisdictional and therefore is susceptible to equitable tolling. In Kwai Fun Wong , the Supreme Court held that a different statute of limitations, 28 U.S.C. § 2401(b), is not jurisdictional. Id. at 1638. In light of Eighth Circuit precedent, the District Court concluded that 28 U.S.C. § 2401(a) is not subject to equitable tolling. In the alternative, the District Court concluded that the Tribe would not be eligible for equitable tolling in this case because the Tribe did not meet its burden of showing that, "despite the Tribe's diligent pursuit of its rights, some extraordinary circumstance prevented it from filing its dismissed claims on time." 4. The "Stacking" Claims The Tribe argued that the Corps had unlawfully "stacked" permits and exemptions and therefore the 2009 nationwide permit was not issued for a "single and complete project." In its final order, the District Court dismissed the Tribe's argument that Drake's 2009 nationwide permit was not a part of a "single and complete project" because the Corps's regulations authorize "phased developments ... provided that each phase is a single and complete project and has independent utility." 5. NHPA Claims The Tribe argued that the Corps did not consider the requirements of NHPA in issuing the 2009 nationwide-permit determination. The District Court concluded that the Corps's nationwide-permit determination was a federal undertaking and that the Corps failed to undergo the necessary NHPA analysis before issuing its determination letter. The District Court remanded this issue to the Corps. DISCUSSION I. CLAIMS ARISING OUT OF THE 2010 LETTER We must first decide whether the Tribe's claims arising out of the Corps's 2010 response letter are justiciable. According to the Tribe, the 2010 letter consummated two of the Corps's earlier actions. First, the 2010 letter finalized the Corps's permit and exemption determinations. Second, the 2010 letter consummated the Corps's decision that Drake's road had not been recaptured. We conclude that (1) the 2010 letter does not constitute a final agency action for purposes of the permit and exemption determinations, and (2) the Tribe's recapture claim is a nonjusticiable enforcement action. A. Final Agency Action We first address whether the 2010 letter constitutes a final agency action for purposes of the Tribe's challenges to the Corps's permit and exemption determinations. We conclude that it does not. We review de novo whether an agency action is a final agency action for purposes of the APA. See Sierra Club v. U.S. Army Corps of Eng'rs , 446 F.3d 808, 813 (8th Cir. 2006). Under the APA, a "final agency action" is subject to judicial review. 5 U.S.C. § 704. Two conditions must be satisfied for an agency action to be "final": First, the action must mark the "consummation of the agency's decisionmaking process." Bennett v. Spear , 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citation omitted). The agency's action cannot be tentative or interlocutory in nature. Id. at 178, 117 S.Ct. 1154. Second, "the action must be one by which 'rights or obligations have been determined,' or from which 'legal consequences will flow.' " Id. (quoting Port of Bos. Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic , 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970) ). "[I]f the agency has issued a 'definitive statement of its position, determining the rights and obligations of the parties,' that action is final for purposes of judicial review despite the 'possibility of further proceedings in the agency' to resolve subsidiary issues." Sierra Club , 446 F.3d at 813 (quoting Bell v. New Jersey , 461 U.S. 773, 779-80, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983) ). To constitute a final agency action, the agency's action must have inflicted "an actual, concrete injury" upon the party seeking judicial review. AT&T Co. v. EEOC , 270 F.3d 973, 975 (D.C. Cir. 2001) (quoting Williamson Cty. Reg'l Planning v. Hamilton Bank , 473 U.S. 172, 193, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) ). At a minimum, the 2010 letter does not satisfy the second prong of the Bennett test. The agency action must determine parties' rights or obligations or compel legal consequences. Hawkes Co. v. U.S. Army Corps of Eng'rs , 782 F.3d 994, 1000 (8th Cir. 2015). It must inflict some legal injury upon the party seeking judicial review. AT&T , 270 F.3d at 976. It may either compel affirmative action or prohibit otherwise lawful action. Hawkes , 782 F.3d at 1000 ; see also Am. Farm Bureau Fed'n v. EPA , 836 F.3d 963, 969 (8th Cir. 2016) (holding that a letter in which an agency committed to release certain data was final agency action). Generally, an agency does not inflict injury "merely by expressing its view of the law." AT&T , 270 F.3d at 976. The Corps's 2010 letter did not affect the legal rights of Drake, the Tribe, or the Corps. The Tribe claims that the Corps addressed its concerns and evidence for the first time in the 2010 letter and, therefore, the 2010 letter constitutes an adverse application of the Corps's previous decisions to the Tribe. But the 2010 letter is not a reconsideration of the Corps's permit and exemption determinations; rather, the Corps merely stated how it had applied the law at the time it issued the permit and exemption determinations to Drake. See id. The 2010 letter did nothing to change the Corps's earlier decisions. Nor has the 2010 letter inflicted any new injury on the Tribe. See id. Any harm incurred by the Tribe occurred at the time the Corps issued the initial permit and exemption determinations. The 2010 letter therefore does not determine the parties' rights or obligations or compel legal consequences. Hawkes Co. , 782 F.3d at 1000. The Corps's permit and exemption determinations were final at the time the Corps issued the verification letters to Drake. Ultimately, the Tribe's argument is aimed at addressing the statute of limitations issue. If the Tribe can establish that these permit and exemption determinations were not final until the 2010 letter, then the Tribe is free to pursue these challenges. But the 2010 letter does not provide an avenue for the Tribe to avoid the statute of limitations. We therefore affirm the District Court's decision that the 2010 letter does not constitute a final agency action of the Corps's permit and exemption determinations. B. Justiciability of the Recapture Claim We next address whether the Tribe's recapture claim is justiciable. The Tribe alleged in its complaint that the Corps's determination in the 2010 letter that Drake's road has not been recaptured was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. We conclude that the Tribe's recapture claim is a nonjusticiable challenge to an enforcement decision. The recapture provision of the CWA states: Any discharge of dredged or fill material into the navigable waters 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, shall be required to have a permit under this section. 33 U.S.C. § 1344(f)(2). The recapture provision operates automatically, bringing a formerly exempt project within the jurisdiction of the Corps as soon as it ceases to be exempt. The Tribe argues that because Drake no longer uses his road for agricultural purposes the road has been recaptured and, therefore, Drake needs a permit. But agency action committed to "agency discretion by law" is not subject to judicial review. 5 U.S.C. § 701(a)(2). An agency decision refusing enforcement generally is unsuitable for judicial review. Heckler v. Chaney , 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). In Chaney , the U.S. Supreme Court stated: [A]n agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. Id. The mere use of the word "shall" in a statute "does not preclude the exercise of prosecutorial discretion" by the agency. Dubois v. Thomas , 820 F.2d 943, 948 (8th Cir. 1987) (citing Inmates of Attica v. Rockefeller , 477 F.2d 375, 381 (2d Cir. 1973) ). The Corps has authority to investigate and impose sanctions on those who violate the CWA. 33 U.S.C. § 1319(a). But this authority is discretionary. Dubois , 820 F.2d at 950-51 (finding nonjusticiable a claim seeking to compel enforcement action against an alleged violator of the CWA). The Tribe's 2009 letter to the Corps argued that Drake's road comes within the recapture provision and requested that the Corps (1) require Mr. Drake to obtain a permit; (2) to remove the so-called 'farm' road; and (3) impose civil penalties on Mr. Drake for willful violations of the Clean Water Act. The 2009 letter is nothing more than a request for enforcement, which is a discretionary action left to the Corps. See Heckler , 470 U.S. at 831, 105 S.Ct. 1649. The Tribe frames its recapture claim as a challenge to the recapture decision itself. But the Tribe's requested relief shows that the recapture claim is an attempt to force the Corps to enforce the CWA against Drake. The Tribe requested that the District Court order the Corps "to require Drake to remove the entire road, bridge, and other portions of the project to bring the entire area back to its original condition." The relief sought is merely the consequence of enforcing the CWA against Drake, presuming the Corps was to find that Drake had in fact violated the CWA. We therefore conclude that the recapture claim is a nonjusticiable enforcement action and affirm the District Court's dismissal of this claim. II. STATUTE OF LIMITATIONS We must decide whether the District Court erred in concluding that the Tribe's claims arising from the Corps's permit and exemption determinations made from 1998 to 2003 are barred by the statute of limitations. On appeal, the Tribe argues that (1) 28 U.S.C. § 2401(a) is not a jurisdictional statute of limitations and (2) the Tribe is eligible for equitable tolling. We conclude that the Tribe is not eligible for equitable tolling in this case. In light of this conclusion, we need not address whether 28 U.S.C. § 2401(a) is a jurisdictional statute of limitations. Under 28 U.S.C. § 2401(a), "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." A plaintiff's claim accrues for purposes of 28 U.S.C. § 2401(a) when the plaintiff "either knew, or in the exercise of reasonable diligence should have known, that [he or she] had a claim." Izaak Walton League of Am., Inc. v. Kimbell , 558 F.3d 751, 759 (8th Cir. 2009) (quoting Loudner v. United States , 108 F.3d 896, 900 (8th Cir. 1997) ). In some cases, a plaintiff may escape the statute of limitations by establishing that he or she is eligible for equitable tolling. Equitable tolling allows for an extension of the prescribed limitations period "when the plaintiff, despite all due diligence, is unable to obtain vital information bearing on the existence of his [or her] claim." Dring v. McDonnell Douglas Corp. , 58 F.3d 1323, 1328 (8th Cir. 1995) (quoting Chakonas v. City of Chicago , 42 F.3d 1132, 1135 (7th Cir. 1994) ). But not every statute of limitations can be equitably tolled. While courts presume that a statute of limitations permits equitable tolling in suits against the United States, the presumption is rebuttable. See Irwin v. Dep't of Veterans Affairs , 498 U.S. 89, 95-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). One way for the government to rebut the presumption is to show that Congress made the statute of limitations jurisdictional, as jurisdictional statutes of limitations cannot be equitably tolled. See United States v. Kwai Fun Wong , --- U.S. ----, 135 S.Ct. 1625, 1631, 191 L.Ed.2d 533 (2015). We need not decide whether 28 U.S.C. § 2401(a) permits equitable tolling because we conclude that, even if it does, the Tribe is not entitled to it in this case. We review the District Court's denial of equitable tolling de novo but review the District Court's underlying factual findings for clear error. English v. United States , 840 F.3d 957, 958 (8th Cir. 2016). A plaintiff is entitled to equitable tolling only if he or she shows " '(1) that he [or she] has been pursuing his [or her] rights diligently, and (2) that some extraordinary circumstances stood in his [or her] way' and prevented timely filing." Holland v. Florida , 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) ). A plaintiff need not be certain that his or her rights have been violated. "[I]f a plaintiff were entitled to have all the time he [or she] needed to be certain his [or her] rights had been violated, the statute of limitations would never run." Dring , 58 F.3d at 1329 (quoting Cada v. Baxter Healthcare Corp. , 920 F.2d 446, 451 (7th Cir. 1990) ). A court therefore asks whether a reasonable person in the plaintiff's situation would be expected to know about the violation of their legal rights. Id. The District Court concluded that the Tribe did not diligently pursue its rights because the Tribe knew that the Corps had authorized Drake's road and that their legal rights were affected by Drake's project no later than January 25, 2005. According to the testimony of Alvah Quinn, the Tribe first became concerned that Drake's road may affect its ability to fish on Enemy Swim Lake in November 2004. At the time, Quinn was the Fish and Wildlife Director of the Tribe, charged with "manag[ing] [the Tribe's] fish and wildlife resources." On November 8, 2004, Quinn called James Oehlerking about the Tribe's concerns. In his notes from the phone call, Oehlerking wrote that Quinn and the Tribe were concerned because they spear north of the crossing. In particular, Quinn testified that the Tribe was concerned that erosion would fill the mouth of the stream and eventually prevent fish from traveling up the stream. Oehlerking's notes also state, "[Quinn] thinks Drake will get access and develop lots along the lake." Quinn agreed that he "[d]efinitely" spoke with Oehlerking about concerns that Drake would develop the land rather than using it for agricultural purposes. At the time of the phone call, the Tribe knew that Drake's project may interfere with its ability to fish on the lake and was suspicious that Drake intended to develop the land rather than use it for agricultural purposes. On January 25, 2005, the Corps held a public meeting to discuss the four permit and exemption determinations issued to Drake from 1998 to 2003. Testimony from the attendees of the meeting and a subsequent letter to Senator Tim Johnson confirm that all four permits and exemptions were discussed at the meeting. A news article published in the Watertown Public Opinion newspaper states that concerns about the effects of Drake's project on fish hatcheries were discussed at the meeting. The District Court's conclusion that Quinn and DeCoteau attended the meeting as representatives of the Tribe is supported by evidence. Both Quinn and DeCoteau signed the sign-in sheet as "SWO-Realty," indicating that they were attending the meeting in their representative capacities. At the time, Quinn was in charge of the Tribe's Fish and Wildlife program and therefore knew the effects that Drake's project would have on the Tribe's ability to fish on the lake. Following the meeting, Quinn told a reporter that he would take his concerns back to the Tribal Council. The reporter quoted Quinn in the published article: Alvah Quinn, Sisseton-Wahpeton Tribal Wildlife Director said the Tribe is concerned about Drake's latest road for environmental reasons. He said the road could negatively impact spawning fish and that the road culvert capacity is a concern, given the upstream drainage area. "We do have concerns about the fish in the stream," he said after the session. "Somebody, whether it's a state, federal, or county agency needs to step up and enforce the laws they have." Quinn agreed at the evidentiary hearing that these statements were accurate. Despite any confusion that may exist about what did or did not occur at the meeting, the evidence supports the following: First, the Tribe was aware of Drake's project, and that the Corps had issued four permit and exemption determinations in furtherance of this project, no later than January 25, 2005. Second, the Tribe knew Drake's project may affect its ability to fish on the lake. Third, the Tribe was suspicious that Drake did not intend to use the land for agricultural purposes and would instead develop the land. Finally, Quinn-acting as a representative of the Tribe-expressed his belief that the Corps had a duty to "enforce the laws they have." The District Court's findings are well supported by the record and not clearly erroneous. A reasonable person in the Tribe's position would be expected to know that Drake's road and the Corps's permit and exemption determinations affected their legal rights to fish on Enemy Swim Lake. Dring , 58 F.3d at 1329. The District Court therefore did not err in concluding that the Tribe's cause of action against the Corps accrued on January 25, 2005, when Quinn received sufficient information at the meeting to be aware of the permit and exemption decisions. Nevertheless, the Tribe argues that its cause of action did not accrue until it became aware that Drake changed the use of his road from agricultural purposes to development purposes in 2008. We disagree. The Tribe was well aware by January 25, 2005, that Drake's project (and therefore the Corps's 2003 exemption determination) threatened its fishing rights. The damage to the Tribe's fishing rights is a sufficient injury to bring a cause of action for purposes of seeking an injunction. As evidenced by Quinn's call with Oehlerking, the Tribe was also suspicious-even if it was not certain-that Drake intended to develop his land. The Tribe would have learned through the course of discovery whether the Corps was aware that Drake intended to develop his land rather than build a farm road. The Tribe had an obligation to pursue its rights diligently once it realized that the 2003 exemption threatened its fishing rights. Holland , 560 U.S. at 649, 130 S.Ct. 2549. The Tribe has not presented any compelling evidence for us to conclude that it diligently pursued its rights after January 25, 2005. The Tribe was well aware of the consequences of the Corps's permit and exemption determinations and failed to act. We therefore affirm the decision of the District Court that the Tribe is not eligible for equitable tolling. III. THE "STACKING" CLAIM We must decide whether the Corps violated its own regulations by granting the 2009 nationwide permit. The Tribe argues that the 2009 permit is not related to a "single and complete project" and, therefore, the Corps unlawfully "stacked" permit and exemption verifications. We disagree. As a threshold matter, the Corps argues that we do not have jurisdiction to hear this issue because the District Court has remanded the 2009 permit determination for reconsideration under NHPA. The Corps argues that it could decide on remand that there is no way for Drake's road to comply with NHPA and vacate the 2009 permit decision, thereby providing the Tribe with the relief it requests. We disagree. We have jurisdiction over "all final decisions of the district courts of the United States." 28 U.S.C. § 1291 (emphasis added). "A 'final decision' generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Giordano v. Roudebush , 565 F.2d 1015, 1017 (8th Cir. 1977) (quoting Pauls v. Sec'y of the Air Force , 457 F.2d 294, 297 (1st Cir. 1972) ). The purpose of Section 1291 is to avoid piecemeal review. Id. at 1018. Giordano is instructive on the application of Section 1291 in the context of administrative law. There, the district court determined that a plaintiff's due process rights had been violated, remanded the case to the agency, and retained jurisdiction to consider the issue of back pay upon completion of administrative procedures. 565 F.2d at 1016-17. On appeal, this court concluded that the case did not meet the final-decision test because "the district court has only remanded the case for further administrative proceedings and thus its order is not a final judgment." Id. at 1017. In so finding, this court stated that "the district court ... neither granted nor denied the ultimate relief of reinstatement and back pay sought by the plaintiff." Id. Giordano is distinguishable from this case. Here, the District Court denied all relief requested by the Tribe except with regard to whether the 2009 permit violated the NHPA, which was remanded for the Corps to determine. Unlike in Giordano , the District Court did not retain jurisdiction to hear the Tribe's arbitrary-and-capricious claim related to the 2009 permit but rather explicitly denied the Tribe's requested relief with respect to that claim. We therefore conclude that the District Court's decision constitutes a reviewable final decision for purposes of Section 1291. Turning to the merits, the Tribe claims that the Corps acted arbitrarily and capriciously by determining that Drake's 2009 project qualified for a nationwide permit because the 2009 project was not a "single and complete project." We apply the Auer (also known as Seminole Rock ) standard in cases involving an agency's interpretation of its own regulations. See Auer v. Robbins , 519 U.S. 452, 461-63, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). An agency's interpretation of its own regulations is controlling unless "plainly erroneous or inconsistent with the regulation." Id. at 461, 117 S.Ct. 905 (quoting Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945) ). We must defer to a permissible interpretation even if it is not the "best" interpretation. Decker v. Nw. Envtl. Def. Ctr. , 568 U.S. 597, 613, 133 S.Ct. 1326, 185 L.Ed.2d 447 (2013). To qualify for a nationwide permit, the activity must be a "single and complete project." Reissuance of Nationwide Permits, 72 Fed. Reg. 11,092, 11,196 (Mar. 12, 2007). A particular nationwide permit "cannot be used more than once for the same single and complete project." Id. "Single and complete project" means "the total project proposed or accomplished by one owner/developer or partnership or other association of owners/developers." 33 C.F.R. § 330.2(i). Nationwide Permit 14 authorizes "[a]ctivities required for the construction, expansion, modification, or improvement of linear transportation projects (e.g., roads ...) in waters of the United States." Reissuance of Nationwide Permits, 72 Fed. Reg. at 11,183. Generally, a "single and complete project" is defined by its "independent utility." Id. at 11,197. But the Corps has adopted a different definition of "single and complete project" for linear transportation projects. "For linear projects, a 'single and complete project' is all crossings of a single water of the United States (i.e., a single waterbody) at a specific location. For linear projects crossing a single waterbody several times at separate and distant locations, each crossing is considered a single and complete project ." Id. ; 33 C.F.R. § 330.2(i) (emphasis added). "However, individual channels in a braided stream or river, or individual arms of a large, irregularly shaped wetland or lake, etc., are not separate waterbodies, and crossings of such features cannot be considered separately." Reissuance of Nationwide Permits, 72 Fed. Reg. at 11,197. We conclude that this interpretation is neither plainly erroneous nor inconsistent with the regulation and, therefore, must defer to the Corps's interpretation. Auer , 519 U.S. at 461, 117 S.Ct. 905. Drake's 2009 project was authorized pursuant to Nationwide Permit 14. We must therefore determine whether the record supports a finding that each project crosses Enemy Swim Lake "at separate and distant locations." The Tribe argues that a cursory glance of the map shows that each project crosses a branch of an "irregularly shaped wetland or lake." To the contrary, the lengths of road stemming from these permits and exemptions each cross a separate body of water. The road stemming from the 2003 exemption crosses a wetland adjacent to Enemy Swim Lake. The road stemming from the 2006 exemption crosses Enemy Swim Creek, which flows into Enemy Swim Lake. The road stemming from the 2009 nationwide permit crosses a separate wetland north of Enemy Swim Creek. While these waterbodies are all connected to Enemy Swim Lake, they are separate waterbodies rather than the arms of "a large, irregularly shaped wetland or lake." By way of analogy, one would not say that the Mississippi River and the Everglades are the same body of water merely because they both join the Gulf of Mexico. Pursuant to the Corps's interpretation of its own regulation, the 2009 nationwide permit constitutes a "single and complete project." Id. We therefore affirm the District Court's dismissal of the Tribe's arbitrary-and-capricious challenge to the Corps's 2009 permit decision. IV. NHPA CLAIMS The Tribe asks this court to consider the lawfulness of the Corps's regulations enacted pursuant to NHPA. The District Court remanded the 2009 permit and ordered the Corps to reconsider its validity under NHPA. The Tribe acknowledges that a remand order "may not be appealed immediately." Izaak Walton , 558 F.3d at 762. The District Court neither made a final decision with respect to the NHPA claim nor granted or denied the Tribe relief with respect to that claim. Therefore, we do not have appellate jurisdiction to address the lawfulness of the Corps's NHPA regulations. 28 U.S.C. § 1291. * * * First, because we conclude that the 2010 letter is not a final agency action, we affirm dismissal of claims stemming from this letter. Second, because we conclude that the Tribe's recapture claim is a nonjusticiable enforcement action, we affirm dismissal of the Tribe's recapture claim. Third, because we conclude that the Tribe is not entitled to equitable tolling, we affirm dismissal of the Tribe's claims related to the 1998 exemption determination, the 2000 nationwide-permit determination, the 2003 exemption determination, and the 2003 nationwide-permit determination. Fourth, because we conclude that the Corps did not violate its own regulations in issuing the 2009 nationwide-permit determination, we affirm dismissal of the Tribe's "stacking" claim. Fifth and finally, because the District Court remanded the Tribe's NHPA claim to the Corps, we conclude that we do not have appellate jurisdiction over this issue. Accordingly, we affirm the District Court. The Honorable Roberto A. Lange, United States District Judge for the District of South Dakota. For purposes of brevity, we address the District Court's orders only as relevant to this appeal. We have long considered § 2401(a) a jurisdictional bar. See Konecny v. United States , 388 F.2d 59, 61-62 (8th Cir. 1967). Since the Supreme Court decided Kwai Fun Wong, the Sixth and Seventh Circuits have held that § 2401(a) is not jurisdictional. Matushkina v. Nielsen , 877 F.3d 289, 292 n.1 (7th Cir. 2017) ; Herr v. U.S. Forest Serv. , 803 F.3d 809, 813-18 (6th Cir. 2015). Even before Kwai Fun Wong , the Fifth and Ninth Circuits held that § 2401(a) is not jurisdictional. Clymore v. United States , 217 F.3d 370, 374 (5th Cir. 2000) ; Cedars-Sinai Med. Ctr. v. Shalala , 125 F.3d 765, 769-71 (9th Cir. 1997). Nevertheless, because we decide the issue on other grounds, this case is not an appropriate vehicle to reconsider our prior decision that § 2401(a) is a jurisdictional statute of limitations. The District Court concluded that the Tribe's cause of action did not begin to accrue on November 8, 2004, because the Tribe was not aware at the time of the phone call that the Corps had issued an exemption to Drake. Whether the Tribe's cause of action accrued earlier than January 25, 2005, is immaterial to our decision.

Belle Co. v. United States Army Corps of Engineers

HIGGINSON, Circuit Judge: Plaintiff-Appellant Belle Company, L.L.C. owns property in the Parish of Assumption. Plaintiff-Appellant Kent Recycling, L.L.C. has an option to purchase the property in the event that it can be used as a solid-waste landfill. In February 2012, Defendant-Appellee United States Army Corps of Engineers (“Corps”) issued a jurisdictional determination (“JD”) stating that the property contains wetlands that are subject to regulation under the Clean Water Act. Belle and Kent (collectively, “Belle”) sued, alleging that the JD is unlawful and should be set aside. The district court dismissed the suit for lack of subject-matter jurisdiction, concluding that the JD is not “final agency action” and therefore is not reviewable under the Administrative Procedure Act. For the reasons that follow, we AFFIRM. I. The Clean Water Act (“CWA”) prohibits, among other things, the “discharge of any pollutant” into “navigable waters” unless authorized by a permit. 33 U.S.C. §§ 1311(a), 1344. The CWA defines navigable waters as “the waters of the United States.” 33 U.S.C. § 1362(7). Under Section 404 of the CWA, 33 U.S.C. § 1344, the Corps has authority to issue permits, termed 404 permits, for the discharge of dredged or fill materials into navigable waters. The regulations that govern the permitting process authorize the Corps to consult with potential permit applicants prior to receiving, processing, and issuing or denying individual permits. 33 C.F.R. § 325.1(b). The regulations also authorize the Corps “to issue formal determinations concerning the applicability of the Clean Water Act ... to activities or tracts of land and the applicability of general permits or statutory exemptions to proposed activities.” 33 C.F.R. §§ 320.1(a)(6); 325.9. The Corps has an administrative appeal process through which it reviews an initial JD. 33 C.F.R. § 331. Belle’s property has a long history. In 1991, the Corps informed Belle that the property correctly was designated as pri- or-converted cropland by the United States Department of Agriculture (“DOA”) and thus did not constitute wetlands under the CWA. In 1993, the Corps and the United States Environmental Protection Agency (“EPA”) promulgated a final rule that excluded property designated as pri- or-converted cropland from the definition of waters of the United States. 33 C.F.R. § 328.3(a)(8). In 1995, the DOA informed Belle that the property was prior-converted cropland and not a wetland under the 1990 Food and Security Act. In 2003, however, the Corps informed Belle that any prior correspondence as to the property’s wetland status was not valid and that the property did constitute wetlands subject to Corps regulation. Subsequently, the Natural Resources Conservation Service (“NRCS”) issued a technical determination, based on earlier findings, that the property was commenced-conversion cropland. In 2005, NRCS and the Corps jointly promulgated guidance, which stated that a previous designation as prior-converted cropland would be valid if a property was devoted to agricultural use but not if it had changed to a nonagricultural use (the “change-in-use policy”). In 2009, the Corps released an Issue Paper and Memorandum (collectively, the “Stockton Rules”) for JDs made in the Jacksonville District in Florida. These documents applied the 2005 Guidance to five properties in the Everglades and found that they were not prior-converted croplands because they had changed from an agricultural to a nonagricultural use. In May 2009, Belle submitted to the Corps an application for a 404 permit to “conduct clearing and excavation activities to facilitate construction of a regional landfill” on the property. In June 2009, the Louisiana Department of Environmental Quality (“LDEQ”) sent a letter to Belle, stating that the Corps had made a determination that a large portion of the proposed landfill site was considered wetlands. LDEQ further stated that Belle’s Louisiana solid-waste permit would require a major modification that reflected the wetlands requirements in Louisiana regulations, LAC 33:VII.709.A.7-8, and that Belle should submit its major-modification application no later than 120 days after it received a decision on its 404 permit application. Belle subsequently abandoned its 404 permit application. Almost two years later, in January 2011, on Belle’s request and after a field inspection by a district engineer, the Corps issued an initial JD, which stated that part of the property was wetlands and subject to the CWA such that, as Belle apparently previously had sought, a 404 permit would be required prior to filling the site. Belle appealed the decision through the Corps’s administrative appeal process. After an appeal meeting, site visit, and review, the division engineer found that portions of Belle’s administrative appeal had merit. On remand, after additional investigation and review, the Corps upheld the determination that part of the property is wetlands. Belle sued in district court for declaratory and injunctive relief to set aside the JD as unlawful. The district court granted the Corps’s motion to dismiss on the ground that it lacked subject-matter jurisdiction over Belle’s claims because the JD is not final agency action reviewable in court under the Administrative Procedure Act (“APA”). Belle timely appealed. On appeal, Belle argues that the district court has subject-matter jurisdiction to review its three claims: (1) that the JD is arbitrary and capricious and should be invalidated; (2) that the administrative appeal process, as applied to Belle, unconstitutionally deprived Belle of liberty and property interests without due process of law; and (3) that the Corps promulgated the change-in-use policy without the proper APA rulemaking procedures, and in violation of an injunction, and improperly applied that policy in the JD. II. We review de novo a district court’s dismissal for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1). Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 421 (5th Cir.2013). “The United States may not be sued except to the extent it has consented to such by statute.” Shanbaum v. United States, 32 F.3d 180, 182 (5th Cir.1994). The APA provides such a waiver for claims “seeking relief other than money damages.” 5 U.S.C. § 702; see King v. U.S. Dep’t of Veterans Affairs, 728 F.3d 410, 416 (5th Cir.2013); Armendariz-Mata v. U.S. Dep’t of Justice, Drug Enforcement Admin., 82 F.3d 679, 682 (5th Cir.1996). Where, as here, no relevant agency statute provides for judicial review, the APA authorizes judicial review only of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. If there is no final agency action, a court lacks subject-matter jurisdiction. Am. Airlines, Inc. v. Herman, 176 F.3d 283, 287 (5th Cir.1999); see also Sierra Club v. Peterson, 228 F.3d 559, 565 (5th Cir.2000) (“Absent a specific and final agency action, we lack jurisdiction to consider a challenge to agency conduct.”). “As a general matter, two conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agency’s decision-making process — it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal quotation marks and citations omitted). “In evaluating whether a challenged agency action meets these two conditions, this court is guided by the Supreme Court’s interpretation of the APA’s finality requirement as ‘flexible’ and ‘pragmatic.’ ” Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir.2011) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149-50, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). “The APA’s judicial review provision also requires that the person seeking APA review of final agency action have ‘no other adequate remedy in court.’” Sackett v. EPA — U.S. -, 132 S.Ct. 1367, 1372, 182 L.Ed.2d 367 (2012) (quoting 5 U.S.C. § 704). In Sackett, 132 S.Ct. at 1371, the Supreme Court revisited the issue of final agency action under the CWA.' The Sack-etts filled a portion of their undeveloped property with dirt and rocks in preparation for building a house. Id. at 1370. The EPA then issued a compliance order that contained findings that the property contained wetlands under the CWA and that the Sacketts had discharged fill material into the wetlands. Id. at 1370-71. The order directed the Sacketts immediately to undertake restoration of the property per an EPA plan and to provide to the EPA access to the site and all documentation relating to the site. Id. at 1371. The Sacketts disagreed with the order, but the EPA denied their request for a hearing. Id. The Sacketts sued, and the Ninth Circuit affirmed the district court’s dismissal for lack of subject-matter jurisdiction, holding that the CWA precludes pre-enforcement review of compliance orders. Id. The Supreme Court reversed, holding that the CWA does not preclude judicial review under the APA. Id. at 1374. The Court concluded that an EPA compliance order is a final agency action under the APA. Id. As to Bennett prong one, the order “marks the consummation of the agency’s decisionmaking process” because “the Findings and Conclusions that the compliance order contained were not subject to further agency review.” Id. at 1372. Furthermore, “[t]he mere possibility that an agency might reconsider in light of informal discussion and invited contentions of inaccuracy does not suffice to make an otherwise final agency action non-final.” Id. As to Bennett prong two, the order determines rights or obligations because “[b]y reason of the order, the Sack-etts have the legal obligation to restore their property according to an agency-approved Restoration Work Plan, and must give the EPA access to their property and to records and documentation related to the conditions at the Site.” Id. at 1371 (internal quotation marks and citation omitted). Further, legal consequences flow from issuance of the order because “the order exposes the Sacketts to double penalties in a future enforcement proceeding. It also severely limits the Sacketts’ ability to obtain a permit for their fill from the Army Corps of Engineers. The Corps’ regulations provide that, once the EPA has issued a compliance order with respect to certain property, the Corps will not process a permit application for that property unless doing so is clearly appropriate.” Id. at 1371-72. Finally, the Sacketts had no other adequate remedy in court because “[i]n Clean Water Act enforcement cases, judicial review ordinarily comes by way of a civil action brought by the EPA under 33 U.S.C. § 1319. But the Sacketts cannot initiate that process, and each day they wait for the agency to drop the hammer, they accrue, by the Government’s telling, an additional $75,000 in potential liability.” Id. at 1372. The Court emphasized: “The other possible route to judicial review— applying to the Corps of Engineers for a permit and then filing suit under the APA if a permit is denied — will not serve either. The remedy for denial of action that might be sought from one agency does not ordinarily provide an adequate remedy for action already taken by another agency.” Id. at 1372. Belle argues that the Court’s decision in Sackett compels the conclusion that the JD is reviewable final agency action. A. First, to be final the JD “must mark the consummation of the agency’s decisionmaking process.” Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154. Where an agency has “asserted its final position on the factual circumstances underpinning” its action, that is an indication that it marks the consummation of the decision-making process. See Alaska Dep’t of Envtl. Conservation v. EPA 540 U.S. 461, 483, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004). Where an action has proceeded through an administrative appeal process and is not subject to further agency review, that too is an indication that the action marks the consummation of the decisionmaking process. See Peoples Nat’l Bank v. Office of Comptroller of Currency of U.S., 362 F.3d 333, 337 (5th Cir.2004) (concluding that agency notification was not consummation of decisionmaking process where regulated party had not yet utilized administrative appeal process); Exxon Chem. Am. v. Chao, 298 F.3d 464, 467 (5th Cir.2002) (concluding that agency remand order was not consummation of decisionmaking process because there remained a possibility that regulated party might prevail in its administrative action). Prior to Sackett, in Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 591 (9th Cir.2008), the Ninth Circuit concluded that a JD marks the consummation of the Corps’s decisionmaking process because the Corps “has asserted its ultimate administrative position regarding the presence of wetlands on Fairbanks’ property on the factual circumstances upon which the determination is predicated.” The JD marks the consummation of a formal procedure for parties to solicit the Corps’s “official position” about the scope of CWA jurisdiction. Id. at 592. The district court below also concluded that the JD is the consummation of the Corps’s decisionmaking process because there will be no further agency deci-sionmaking on the issue. The Court’s reasoning in Sackett as to Bennett prong one reinforces the conclusion that the JD is the consummation of the Corps’s decisionmaking process. A JD is “a written Corps determination that a wetland and/or waterbody is subject to regulatory jurisdiction under” the CWA. 33 C.F.R. § 331.2. Once a JD has proceeded through the administrative appeal process, the final JD is not subject to further formal review by the agency. See 33 C.F.R. § 331.9. Corps regulations further state that “the public can rely on that determination as a Corps final agency action.” 51 F.R. 41,206-01 (Nov. 1986) (citing 33 C.F.R. § 320.1(a)(6)). The Corps’s consummation argument — that the JD is one step at the beginning of the administrative process, that it entails the possibility of further proceedings on a permit application, and that it could change over time — rests on too broad a level of generality. The Court in Sackett rejected that argument, reasoning that the findings and conclusions in the EPA compliance order, which included a finding that the property was subject to CWA jurisdiction, “were not subject to further agency review.” Sackett, 132 S.Ct. at 1372. Furthermore, “[t]he mere possibility that an agency might reconsider in light of informal discussion and invited contentions of inaccuracy does not suffice to make an otherwise final agency action nonfinal.” Id. Through the JD, the Corps has asserted its final position on the facts underlying jurisdiction — that is, the presence or absence on Belle’s property of waters of the United States as defined in the CWA. See Alaska Dep’t of Envtl. Conservation, 540 U.S. at 483, 124 S.Ct. 983; Fairbanks, 543 F.3d at 593 (finding that a JD “announces the Corps’ considered, definite and firm position about the presence of jurisdictional wetlands on [the] property at the time it is rendered”). This is evidenced by the fact that the JD was subject to, and proceeded through, an extensive administrative appeal process within the Corps and hence is termed a “final” JD. See 33 C.F.R. § 331.9; Peoples Nat’l Bank, 362 F.3d at 337; Exxon Chem., 298 F.3d at 467. We conclude that the JD marks the consummation of the Corps’s decisionmak-ing process as to the question of jurisdiction. B. Second, to be final the JD must be an action “by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett, 520 U.S. at 178, 117 S.Ct. 1154 (internal quotation marks and citation omitted). Where “the action sought to be reviewed may have the effect of forbidding or compelling conduct on the part of the person seeking to review it, but only if some further action is taken by the [agency],” that action is nonfinal and nonreviewable because it “does not of itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action.” Rochester Tel. Corp. v. United States, 307 U.S. 125, 129-30, 59 S.Ct. 754, 83 L.Ed. 1147 (1939); see also FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 240-41, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980) (concluding that agency’s issuance of complaint, which stated it had “reason to believe” regulated party was violating statute, was not final agency action but merely “a threshold determination that further inquiry is warranted and that a complaint should initiate proceedings”); Luminant Generation Co., L.L.C. v. EPA 757 F.3d 439, 442, Nos. 12-60694, 13-60538, 2014 WL 3037692, at *3 (5th Cir.2014) (concluding that EPA’s issuance of notice of violation of Clean Air Act was not final agency action because, inter alia, “adverse legal consequences will flow only if the district court determines that Lumi-nant violated the Act or the SIP” and “if the EPA issued notice and then took no further action, Luminant would have no new legal obligation imposed on it and would have lost no right it otherwise employed”); AT & T Co. v. EEOC, 270 F.3d 973, 975 (D.C.Cir.2001) (“[The agency’s action] must have inflicted an actual, concrete injury upon the party seeking judicial review. Such an injury typically is not caused when an agency merely expresses its view of what the law requires of a party, even if that view is adverse to the party.” (internal quotation marks and citation omitted)). Prior to Sackett, all of the courts, including ours, that had considered the question held that a JD does not determine rights or obligations or have legal consequences and thus is not final agency action. See Fairbanks, 543 F.3d at 597; Greater Gulfport Properties, LLC v. U.S. Army Corps of Eng’rs, 194 Fed.Appx. 250, 250 (5th Cir.2006) (per curiam) (unpublished); Comm’rs of Pub. Works of City of Charleston v. United States, 30 F.3d 129, 1994 WL 399118, at *2 (4th Cir.1990) (per curiam) (unpublished); Coxco Realty, LLC v. U.S. Army Corps of Eng’rs, Civil Action No. 3:06-CV-416-S, 2008 WL 640946, at *4-5 (W.D.Ky. Mar. 4, 2008); St. Andrews Park, Inc. v. U.S. Dep’t of Army Corps of Eng’rs, 314 F.Supp.2d 1238, 1244-45 (S.D.Fla.2004); Child v. United States, 851 F.Supp. 1527, 1534-35 (D.Utah 1994); Hampton Venture No. One v. United States, 768 F.Supp. 174, 175-76 (E.D.Va.1991); Route 26 Land Dev. Association v. U.S. Gov’t, 753 F.Supp. 532, 539-40 (D.Del.1990); Lotz Realty Co. v. United States, 757 F.Supp. 692, 695-97 (E.D.Va.1990). Since Sackett, the few courts, including the district court below, that have considered the question have reasoned to the same conclusion. See Hawkes Co., Inc. v. U.S. Army Corps of Eng’rs, 963 F.Supp.2d 868, 873-78 (D.Minn.2013) (holding that a Corps JD is not final agency action); Nati Ass’n of Home Builders v. EPA, 956 F.Supp.2d 198, 209-212 (D.D.C.2013) (explaining that a Corps determination that a property contains traditional navigable waters is practically indistinguishable from a JD and thus is not final agency action). Indeed, the Court’s reasoning in Sackett as to Bennett prong two highlights the determinative distinctions between a JD and an EPA compliance order. First, and foremost, the compliance order independently imposed legal obligations because it ordered the Sacketts promptly to restore their property according to an EPA-approved plan and give the EPA access to site records and documentation. Sackett, 132 S.Ct. at 1371-72. By contrast, the JD is a notification of the property’s classification as wetlands but does not oblige Belle to do or refrain from doing anything to its property. It notifies Belle that a 404 permit will be required prior to filling, and we are cognizant that the Corps’s permitting process can be costly for regulated parties. See Rapanos v. United States, 547 U.S. 715, 721, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). But even if Belle had never requested the JD and instead had begun to fill, it would not have been immune to enforcement action by the Corps or EPA. See Luminant, 757 F.3d at 442, 2014 WL 3037692, at *3 (“The Clean Air Act and the Texas SIP, not the notices, set forth Lumi-nant’s rights and obligations.”). Indeed, prior to Belle’s request for a JD, the Corps informed Belle that even if no JD issued, that “does not alleviate your responsibility to obtain the proper DA permits prior to working in wetlands that may occur on this property.” Belle argues that the JD has consequences under Louisiana law — namely, that LDEQ will require Belle to modify the state permit it previously acquired for its property. Putting aside that the LDEQ letter Belle cites is dated 2009, years prior to the 2012 JD that Belle challenges, state-agency action does not transform nonfinal federal-agency action into final action for APA purposes. See Ocean Cnty. Landfill Corp. v. EPA, 631 F.3d 652, 656 (3d Cir.2011) (“[W]here a state actor relies upon a federal agency’s notice, the state action does not convert the notice into a final agency act under the APA”) (citing Hindes v. FDIC, 137 F.3d 148, 163 (3d Cir.1998) (citing Air California v. U.S. Dep’t of Transp., 654 F.2d 616, 621 (9th Cir.1981))); Resident Council of Allen Parkway Village v. U.S. Dep’t of Housing & Urban Dev., 980 F.2d 1043, 1055-56 (5th Cir.1993) (concluding that HUD interpretation was not final agency action despite the fact that it resulted in actions by state housing authority). Cf. Vieux Carre Prop. Owners, Residents & Assocs., Inc. v. Brown, 875 F.2d 453, 456 (5th Cir.1989) (explaining that APA is “a route through which private plaintiffs can obtain federal court review of the decisions of federal agencies” and concluding that plaintiffs could not challenge state-agency action even if based on challenged Corps decisions that allegedly violated a statute). Even assuming that LDEQ’s letter could make federal action final, the letter requests that Belle submit a permit-modification request only “after the 404 permit decision” from the Corps because the state requirements “may be impacted by requirements of a 404 permit.” Thus, this alleged consequence depends on, and does not inure until, the Corps’s decision on a future permit application. See Rochester Tel., 307 U.S. at 130, 59 S.Ct. 754; Exxon Chem., 298 F.3d at 467. Second, the compliance order in Sackett itself imposed, independently, coercive consequences for its violation because it “expose[d] the Sacketts to double penalties in a future enforcement proceeding,” Sack-ett, 132 S.Ct. at 1372. By contrast, the JD erects no penalty scheme. It imposes no penalties on Belle. And neither the JD nor Corps regulations nor the CWA require Belle to comply with the JD. See Luminant, 757 F.3d at 443, 2014 WL 3037692, at *3 (“[NJothing in the Clear Air Act requires a regulated entity to ‘comply’ with a notice.”). Belle argues that one factor in calculating civil and criminal penalties in a future enforcement action is Belle’s “good faith efforts to comply” with the CWA, which could be undermined because the JD alerts Belle to the presence of wetlands on its property. See 33 U.S.C. § 1319. However, the use of the JD in assessing future penalties is speculative, whereas in Sackett the order caused penalties to accrue pending restoration of the property. See Sackett, 132 S.Ct. at 1372; Fairbanks, 543 F.3d at 595 (noting that § 1319(d) does not mention JDs or assign them specific evidentiary weight, so the speculative penalties could be a practical effect but not a legal consequence) (citing Ctr. for Auto Safety v. NHTSA, 452 F.3d 798, 811 (D.C.Cir.2006)); see also Energy Transfer Partners v. F.E.R.C., 567 F.3d 134, 141-42 (5th Cir.2009) (explaining that the “expense and annoyance of litigation,” although a substantial burden, “is different in kind and legal effect from the burdens attending what heretofore has been considered to be final agency action”) (quoting Standard Oil, 449 U.S. at 242, 244, 101 S.Ct. 488). Third, whereas the compliance order in Sackett severely limited the Sacketts’ ability to obtain a 404 permit from the Corps, see Sackett, 132 S.Ct. at 1372, the JD operates oppositely, informing Belle of the necessity of a 404 permit to avoid enforcement action. Significantly for the Court in Sackett, Corps regulations state: “No permit application will be accepted nor -will the processing of an application be continued when the district engineer is aware of enforcement litigation that has been initiated by other Federal, state, or local regulatory agencies, unless he determines that concurrent processing of an after-the-fact permit application is clearly appropriate.” 33 C.F.R. § 326.3(e)(l)(iv). By contrast, Corps regulations do not impose any such restriction with regard to the JD; pertinent here, the JD itself does not state that it will limit a party’s ability to obtain a permit. Fourth and finally, the compliance order in Sackett determined that the Sacketts’ property contained wetlands and that they had discharged material into those wetlands in violation of the CWA. See Sackett, 132 S.Ct. at 1369-70. In other words, the order resolved that the Sacketts had violated the CWA and hence were subject to penalties and had to restore their property. See Sackett, 132 S.Ct. at 1373 (“As the text (and indeed the very name) of the compliance order makes clear, the EPA’s deliberation over whether the Sacketts are in violation of the Act is at an end.”). Indeed, the EPA compliance order was based, in part, on a finding that the Sack-etts’ property contained wetlands subject to CWA jurisdiction, see id. at 1370; yet the Court did not rely on that jurisdictional finding as the basis for its decision but relied instead on the consequences that flowed from the compliance order. See id. at 1371-72. By contrast, the JD does not state that Belle is in violation of the CWA, much less issue an order to Belle to comply with any terms in the JD or take any steps to alter its property. See Luminant, 757 F.3d at 442-44, 2014 WL 3037692, at *3 (distinguishing between an EPA notice of violation of the Clean Air Act and the compliance order in Sackett and concluding that the former was not final agency action). Moreover, while the Corps, responsive to Belle’s own inquiry, has made a determination as to the presence of wetlands on Belle’s property, it renders no regulatory opinion as to Belle’s ultimate goal to build a landfill. Belle could still obtain a Corps permit to fill, without the presumption (attached to an EPA compliance order) against issuing a permit. See 33 C.F.R. § 326.3(e)(l)(iv). If Belle does not obtain a permit, Corps regulations allow Belle to initiate suit in court, where Belle may challenge the permit decision as well as the underlying jurisdiction. See 33 C.F.R. § 331.12. Belle’s proposed framework, where it could first request a wetlands determination and then seek judicial reassessment of that regulatory determination but also later seek separate review of any permit decision based on that jurisdiction, would disrupt the regulatory review system already in place. See Dresser v. Meba Med. & Benefits Plan, 628 F.3d 705, 708 (5th Cir.2010) (“To determine whether the APA’s default rule of review is applicable, we look to the agency-specific statutes and rules.”); Beall v. United States, 336 F.3d 419, 427 n. 9 (5th Cir.2003), abrogated on other grounds, Hinck v. United States, 550 U.S. 501, 127 S.Ct. 2011, 167 L.Ed.2d 888 (2007) (“Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action.”) (citing Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988)). Furthermore, authorizing judicial review of JDs, to the extent that it would disincentivize the Corps from providing them, would undermine the system through which property owners can ascertain their rights and evaluate their options with regard to their properties before they are subject to compliance orders and enforcement actions for violations of the CWA. The above distinctions between the compliance order and the JD effectuate both prongs of the Bennett test: the action cannot be only a final decision, it must be also a final decision that “alter[s] the legal regime” to which the regulated party is subject. See Bennett, 520 U.S. at 178, 117 S.Ct. 1154. We conclude that, under that standard and under current doctrine, especially Sackett, the JD is not an action by which rights or obligations have been determined, or from which legal consequences will flow. We hold that the JD is not reviewable final agency action under the APA and affirm the district court’s dismissal of this claim for lack of subject-matter jurisdiction. III. Belle argues second that the Corps’s administrative appeal process deprived Belle of its liberty and property interests without due process of law. The district court did not reach this claim, explaining: “Because the Court finds that it lacks subject matter jurisdiction, it is not necessary to address Plaintiffs’ remaining claims.” However, the district court dismissed all of the claims without prejudice, thus impliedly dismissing this claim for lack of subject-matter jurisdiction under 12(b)(1) and not on the merits under 12(b)(6). Brooks v. Raymond Dugat Co. L C, 336 F.3d 360, 362 (5th Cir.2003). We review the decision to dismiss for lack of subject-matter jurisdiction de novo. Ctr. for Biological Diversity, 704 F.3d at 421. We may affirm on any ground supported by the record. Gilbert v. Donahoe, 751 F.3d 303, 311 (5th Cir.2014). Furthermore, “the issue of subject matter jurisdiction is subject to plenary review by this court.” Taylor-Callahan-Coleman Counties Dist. Adult Probation Dep’t v. Dole, 948 F.2d 953, 956 (5th Cir.1991). Belle raised a facial challenge to the Corps’s administrative appeal process below, but on appeal raises only an as-applied challenge to the Corps’s conduct in Belle’s administrative appeal process. Belle argues that this due-process claim provides an independent basis for jurisdic- tion under 28 U.S.C. § 1331. Section 1331 provides federal-question jurisdiction for the due-process claim. See Stockman v. FEC, 138 F.3d 144, 151 n. 13 (5th Cir.1998) (noting that APA does not create an independent grant of jurisdiction but that jurisdiction exists under § 1331 and that APA then serves as waiver of sovereign immunity). However, “28 U.S.C. § 1331 is a general jurisdiction statute and does not provide a general waiver of sovereign immunity.” Shanbaum, 32 F.3d at 182 (citing Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1385 (5th Cir.1989)). Thus, Belle must prove that the government waived its immunity. See Taylor-Callahan-Coleman, 948 F.2d at 956 (explaining that § 1331 afforded jurisdiction over plaintiffs due process and APA claims against Department of Labor but that plaintiff still had to establish a waiver of sovereign immunity under APA’s final-agency-action requirement); see also Smart v. Holder, 368 Fed.Appx. 591, 593 (5th Cir.2010) (unpublished) (affirming dismissal of due-process claim against DOJ where none of the statutes plaintiff cited provided waiver of immunity) (citing Boehms v. Crowell, 139 F.3d 452, 462-63 (5th Cir.1998); S. Sog, Inc. v. Roland, 644 F.2d 376, 380 (5th Cir. Unit A May 1981)). In neither its complaint nor its briefs on appeal does Belle cite a statutory waiver of sovereign immunity for its due-process claim or argue that it is a claim under the APA. The only waiver of sovereign immunity that Belle cites is the APA. Cf. Doss v. S. Cent. Bell Tel. Co., 884 F.2d 421, 424 (5th Cir.1987) (“[W]here a complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged in the complaint satisfy the jurisdictional requirements of the statute.”) (quoting Hildebrand v. Honeywell, 622 F.2d 179, 181 (5th Cir.1980)). Belle does not argue or establish that the administrative appeal process that culminated in the JD, as applied to Belle, is final agency action. See Taylor-Callahan-Coleman, 948 F.2d at 956; Stockman, 138 F.3d at n. 13. Accordingly, we affirm the district court’s dismissal of this claim for lack of subject-matter jurisdiction. IV. Belle argues third that the Corps promulgated the change-in-use policy in the Stockton Rules, in violation of APA rulemaking requirements, and that the Corps violated a nationwide injunction when it applied the Rules in the JD for Belle’s property. The district court similarly did not reach this claim. Again, we may affirm on any ground in the record. Gilbert, 751 F.3d at 311. On their face the Stockton Rules apply only to the Corps’s Jacksonville District, and even then only to five applications for approved JDs that were pending at the time. Nothing in the Stockton Rules purports to apply to Belle’s property or even to the New Orleans District. Further, nothing in the JD purports to apply the Stockton Rules to Belle’s property. Indeed, although the Corps division engineer in Belle’s administrative appeal found no evidence that the district engineer had used the Stockton Rules, in an abundance of caution he prohibited the district engineer from using them on remand. Additionally, the Stockton Rules govern properties classified as prior-converted cropland, and Belle’s property was classified as commenced-conversion cropland at least as early as 2003. Belle cites New Hope Power Co. v. U.S. Army Corps of Eng’rs, 746 F.Supp.2d 1272 (S.D.Fl.2010), which held that the Stockton Rules were final agency action that violated the APA’s rulemaking requirements and enjoined the Corps from using them. But the New Hope Power court characterized the Stockton Rules as governing prior-converted cropland. Id. at 1274. Moreover, Belle was not a party to that case. Thus, it is not clear how any action with regard to the Stockton Rules would redress Belle’s alleged injury. See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, — U.S. -, 132 S.Ct. 2199, 2210, 183 L.Ed.2d 211 (2012) (“This Court has long held that a person suing under the APA must satisfy ... Article Ill’s standing requirements.”); United States v. Holy Land Foundation for Relief and Dev., 445 F.3d 771, 780 (5th Cir.2006) (explaining that to establish redressability, a plaintiff must show that there is a substantial likelihood that the requested relief will remedy the alleged injury-in-fact); see also League of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 431 (5th Cir.2011) (citing Bennett, 520 U.S. at 167, 117 S.Ct. 1154) (explaining that it must be likely, as opposed to merely speculative, that a favorable decision would redress the injury); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 105-06, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (finding failure of redressability requirement where none of the specific items of relief sought and none the Court could envision under general request would redress plaintiffs losses). To the extent that what Belle in fact challenges is the Corps’s change-in-use policy, the Corps promulgated that policy not in the Stockton Rules but in its 2005 Guidance. Belle does not challenge that Guidance on appeal, and in any event such a challenge is barred by the statute of limitations. 28 U.S.C. § 2401(a). If the Stockton Rules are relevant to the determination of this case, it is only insofar as Belle challenges their alleged presence in the JD. As identified to us, the record does not bear out that proposition; moreover, the JD is not reviewable final agency action for the reasons discussed above. Accordingly, we affirm the district court’s dismissal of this claim for lack of subject-matter jurisdiction. V. We AFFIRM the district court’s judgment. . In Rochester, 307 U.S. at 130, 59 S.Ct. 754, the Court listed as examples of such nonfinal action: "[0]rders of the Interstate Commerce Commission setting a case for hearing despite a challenge to its jurisdiction, or rendering a tentative or final valuation under the Valuation Act, although claimed to be inaccurate, or holding that a carrier is within the Railway Labor Act and therefore amenable to the National Mediation Board.” (internal citations omitted). . As noted previously, Belle did commence the permit process but subsequently abandoned it for reasons not apparent in the existing record. . Belle points to Corps regulations that state: "A determination pursuant to this authorization shall constitute a Corps final agency action.” § 320.1(a)(6). However, Corps regulations clarify: [E]ven final agency actions must be "ripe” before a court can review them. In the past, a number of courts have held that jurisdictional determinations are not ripe for review until a landowner who disagrees with a JD has gone through the permitting process. The Federal Government believes this is the correct result, and nothing in today's rule is intended to alter this position.... JDs are not necessarily "final” even as an administrative matter.... Accordingly, we have decided not to address in this rulemaking when a JD should be considered a final agency action. 65 F.R. 16,486-01 (Mar. 28, 2000). Thus, the Corps does not interpret the above language to mean final agency action for APA purposes. Under Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), an agency's interpretation of its own regulation receives deference unless it is plainly erroneous or inconsistent with the regulation. See also Decker v. Nw. Envtl. Def. Ctr., - U.S. -, 133 S.Ct. 1326, 1337, 185 L.Ed.2d 447 (2013); Elgin Nursing and Rehabilitation Ctr. v. U.S. Dept. Of Health and Human Servs., 718 F.3d 488, 492-93 (5th Cir.2013). Regardless, the regulations’ language is not dispositive. See Exxon Chem., 298 F.3d at 467 n. 2; Veldhoen v. U.S. Coast Guard, 35 F.3d 222, 225-26 (5th Cir.1994); Hampton Venture, 768 F.Supp. at 175; Lotz Realty, 757 F.Supp. at 697. . To be final, an agency action also must be one for which there is "no other adequate remedy in a court.” 5 U.S.C. § 704; see Sackett, 132 S.Ct. at 1372. Even assuming that the JD met Bennett prong two, Belle may have an adequate judicial remedy because it could apply for a Corps permit and, if the Corps denies the permit, challenge the denial and the underlying jurisdiction in court. See 33 C.F.R. § 331.12. In Sackett, the Court found that there was no adequate alternative to challenge the EPA compliance order for two reasons. First, the Sacketts could not initiate a challenge to the compliance order because in CWA enforcement cases the EPA initiates the civil action, and in the meantime the Sacketts had to wait and accrue potential liability. Id. Second, the process of applying for a Corps permit and then filing suit if the Corps denied the permit was not adequate because "[t]he remedy for denial of action that might be sought from one agency does not ordinarily provide an adequate remedy for action already taken by another agency.” Id. Here, the Corps issued the JD, so it is not the case that the only alternative remedy is one provided by a different agency. See 33 C.F.R. §§ 331.10, 331.12. Furthermore, as noted above, Belle is not incurring any liability and Belle can bring a challenge in court if the Corps denies a future permit application. See 33 C.F.R. § 331.12. Thus, the Corps JD is distinguishable from the EPA compliance order on this ground as well. See Sackett, 132 S.Ct. at 1372; Dresser, 628 F.3d at 708; Beall, 336 F.3d at 427 n. 9. . In a Rule 28(j) letter, Belle cites Alabama-Coushatta Tribe of Tex. v. United States, No. 13-40644, 757 F.3d 484, 488-90, 2014 WL 3360472, at *3-4 (5th Cir.2014), where this court held that the APA, 5 U.S.C. § 702, provides a waiver of sovereign immunity for two distinct types of claims: (1) claims where judicial review is sought only pursuant to the general provisions of the APA; and (2) claims where judicial review is sought pursuant to a separate statutory or nonstatutory cause of action. As to the latter type of waiver, this court held, “there only needs to be 'agency action' as set forth by 5 U.S.C. § 551(13).” Id. at 489, 2014 WL 3360472 at *4. Belle does not articulate the effect of this case on its due-process claim, and, in any event, it does not affect the outcome here. This court in Alabama-Coushatta relied on Sheehan v. Army & Air Force Exch. Serv., 619 F.2d 1132, 1139 (5th Cir.1980), rev'd on other grounds, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982), and Trudeau v. Federal Trade Comm’n, 456 F.3d 178, 186-89 (D.C.Cir.2006). In Sheehan, 619 F.2d at 1139, this court held that § 702 waives sovereign immunity for statutory and nonstatutory causes of action, without discussing whether the final-agency-action requirement of § 704 applies to those claims. In Trudeau, 456 F.3d at 188-89, the D.C. Circuit held that the final-agency-action requirement does not restrict § 702’s waiver of sovereign immunity at all; instead, it operates as a (12)(b)(6) merits restriction rather than as a 12(b)(1) jurisdiction restriction. Alabama-Coushatta, see 757 F.3d at 489-90, 2014 WL 3360472, at *4, bifurcates the 12(b)(1) analysis and holds that for the APA to waive sovereign immunity for a claim under the general provisions of the APA, the claim must challenge a "final agency action” under § 704, whereas for the APA to waive sovereign immunity for a claim under other statutory or nonstatutory' provisions, the claim must challenge only "agency action” as defined in § 551(13). Even following Alabama-Coushatta on its own terms, therefore, Belle still would have to show that the JD is final agency action to survive a 12(b)(6) dismissal of its due-process claim, which, for the reasons explained above, it has not done. Furthermore, to the extent that is the approach required by Alabama-Coushatta, it is in tension with the Fifth Circuit cases cited above, which establish that a lack of "final agency action” is a 12(b)(1) deficiency. Finally, in both Sackett, 132 S.Ct. at 1371, and Taylor-Callahan-Coleman, 948 F.2d at 956, the plaintiffs challenged the agency actions on both APA and due-process grounds, and the Supreme Court and an earlier panel of this court conducted the final-agency-action analysis without bifurcating the two claims or proceeding to the merits of either.

United States v. Donovan

OPINION OF THE COURT RENDELL, Circuit Judge. David H. Donovan added fill material to a portion of his property in New Castle County, Delaware that the United States contends is “wetlands” subject to the Clean Water Act (“CWA” or “Act”). The Government brought an enforcement proceeding against him under the Act to force him to remove the fill and pay a fine. Donovan argued that his property is not covered by the CWA. However, the District Court disagreed, granting summary judgment in the Government’s favor and imposing a $250,000 fine. In this appeal, we are called upon to decide what test to apply in order to determine whether land is “wetlands” subject to the CWA after the Supreme Court’s ruling in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). We join the Courts of Appeals for the First and Eighth Circuits in holding, as the District Court here did, that property is “wetlands” subject to the CWA if it meets either of the tests laid out in Rapanos. We hold, further, that summary judgment was properly granted and will affirm. I. Background A. Facts and Procedural Posture Donovan has owned a four-acre parcel of land bordering Route 13 near Smyrna in New Castle County, Delaware since September 29, 1982. The land is situated within the watershed of the Sawmill Branch, which flows into the Smyrna River, and then into the Delaware Estuary and on to the Delaware Bay. The Sawmill Branch becomes tidal approximately 2.5 miles from Donovan’s property. In August 1987, the land was inspected by the United States Army Corps of Engineers (“Corps”). Following this inspection, the Corps categorized the property as wetlands, concluded that approximately % of an acre had been recently filled by Donovan, and warned Donovan that federal law required him to obtain a permit should he wish to fill more than one acre of his property. In early 1993, the Corps again inspected Donovan’s land and found that he had continued to fill his property without a permit. In July 1993, the Corps sent a cease-and-desist notice to Donovan, ordering him to remove 0.771 acres of fill material, or to submit a pre-discharge notification. Donovan rebuffed this initial notice and the similar notices that followed. Donovan’s emphatic response to the notices was that the Corps had no right to regulate the use of his land. In 1996, the United States sued Donovan, alleging that he had violated the CWA, 33 U.S.C. § 1311(a). In March 2002, the United States District Court for the District of Delaware concluded that Donovan had violated the CWA. Donovan appealed, but we dismissed the appeal for lack of jurisdiction because the District Court’s order was not then final. On December 21, 2006, the District Court entered a final judgment against Donovan, imposing a $250,000 fine and requiring him to remove 0.771 acres of fill from his land. Donovan appealed the December 21, 2006 judgment, arguing that the CWA did not give the Corps jurisdiction over his land. On July 24, 2008, we appointed amicus to address whether the Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), would require remand in this case. The Government then filed a motion requesting that the case be remanded to the District Court so that a record could be developed on the issue of the Corps’ jurisdiction over Donovan’s land. We granted that motion and remanded the case to the District Court on April 13, 2009. On remand, the District Court referred the case to a Magistrate Judge for all pretrial matters. On March 15, 2010, Donovan moved for judgment on the pleadings and the Government moved for summary judgment. The Government submitted two expert reports: one from wetland scientist Edward M. Launay (“Launay report”) and the other from scientists at the Stroud Water Research Center (“Stroud report”). Both reports were based on extensive analysis and testing of Donovan’s property between June 2009 and November 2009. Launay used a variety of methods to map stream channels on and around Donovan’s property and to demonstrate that they were perennial. The Stroud scientists examined the physical, chemical, and biological connections between the wetlands on Donovan’s property and downstream waters of the Sawmill Branch. The Stroud scientists analyzed, inter alia, the wetlands’ hydrological connections to downstream waters, the wetlands’ potential for filtering pollutants, and the wetlands’ role in the aquatic ecosystem for fish and invertebrates. Donovan did not present any expert evidence in support of his motion, relying instead on his own affidavit, in which he expressed familiarity with the pattern of water flow on his property and stated that “the amount of water flowing on my Property in a given period is completely dependent on the amount of rainfall in the area during that period” and “[t]he only source of water flow on my Property is rainwater run-off from the adjacent highway.” JA 639. His affidavit claimed that “in periods of no rain” the channels on his property are “completely dry.” JA 640. Donovan also claimed that “2009 and 2010 are the rainiest and wettest years that I can recall in the nearly 50 years I have lived in the Smyrna region” and that the channels on his property were “completely dry for significant periods” in 2008, including “the summer months.” Id. Donovan also stated that “[i]n periods of heavy rainfall, when there is water flowing on my Property, the rainwater channels are clearly defined and easy to differentiate from the neighboring land.” JA 641. The Magistrate Judge recognized that the sole issue to be decided was whether the property on which Donovan placed fill material is subject to regulation under the CWA. The Magistrate Judge issued a Report and Recommendation (“R & R”) on July 23, 2010, which recommended that the District Court deny Donovan’s motion and grant summary judgment in favor of the Government. In the R & R, the Magistrate Judge concluded that wetlands are covered by the CWA if they meet either of the tests articulated by the Supreme Court in Rápanos. The Magistrate Judge then analyzed the Government’s expert reports and noted that they “offered sufficient evidence to support a finding” that the first Rápanos test was met, JA 17, and 'that they “adequately show[ed]” that the second Rápanos test was met, JA 22. The Magistrate Judge did not cite or credit Donovan’s declaration. The Magistrate Judge also recommended that Donovan’s motion for judgment on the pleadings be denied, stating that the Government had adequately pled a basis for asserting jurisdiction over Donovan’s land. Donovan objected wholesale to the R & R. On September 13, 2010, the District Court overruled Donovan’s objections to the R & R, granted the Government’s motion for summary judgment, and denied Donovan’s motion for judgment on the pleadings. The District Court rejected Donovan’s contention that the Magistrate Judge misapplied the legal standard for summary judgment, saying that “there is no genuine issue of material fact as to whether the wetlands are subject to CWA jurisdiction, and ... [Donovan] failed to come forward with evidence to enable a jury to reasonably find for ... him on that issue.” JA 30. The District Court agreed with the Magistrate Judge that federal authority can be asserted over wetlands that meet either Rapemos test. As to the first Rápanos test (which we will call the “continuous surface connection test” or the “plurality’s test”), the District Court concluded that the Government “propounded significant evidence” that the test was met, and that Donovan’s declaration failed to create a genuine issue of material fact as to whether the test was satisfied. JA 33. The District Court was also “satisfied that the Government’s evidence ... establishes” that the second Rápanos test (which we will call the “significant nexus test” or “Justice Kennedy’s test”) was met and noted that Donovan had “largely relief] on arguments by counsel concerning alleged deficiencies with the Government’s evidence, but put[ ] forth no evidence of his own.” JA 35-36. The District Court concluded that Donovan failed to come forward with specific facts showing a genuine issue for trial and granted the Government’s motion for summary judgment. Finally, the District Court denied Donovan’s motion for judgment on the pleadings, holding that the Government pled enough factual matter to plausibly suggest that Donovan’s property is subject to the CWA. On November 8, 2010, Donovan appealed, arguing that the District Court applied the wrong legal standard to determine whether the Corps had jurisdiction over Donovan’s property and misapplied the summary judgment standard. B. Legal Background The CWA provides that “the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). According to the statutory definition, “discharge of any pollutant” includes “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). The CWA defines “navigable waters” as the “waters of the United States.” 33 U.S.C. § 1362(7). The Corps has interpreted this to mean that its regulatory jurisdiction extends over, inter alia, traditional navigable waters, their tributaries, and wetlands which are adjacent to any of the above. 33 C.F.R. § 328.3(a). The Supreme Court first considered the CWA’s applicability to wetlands in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). In that case, the Corps sought to enjoin a landowner from filling its property because the Corps deemed the property to be wetlands falling under the protection of the CWA. The Supreme Court held that the Corps’ construction of the CWA as applying to wetlands adjacent to waterways covered by the Act was reasonable and that the landowner could not fill its property without a permit from the Corps. Id. at 131-35, 106 S.Ct. 455. The Supreme Court next addressed the scope of the CWA’s coverage in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (“SWANCC”). In SWANCC, the Corps asserted jurisdiction over “an abandoned sand and gravel pit in northern Illinois” based on 51 Fed.Reg. 41217, a regulation that purported to extend the Corps’ jurisdiction to intrastate waters “which are or would be used as a habitat by” endangered species or birds that migrate across state lines. See id. at 162-64, 121 S.Ct. 675. The Court held that the term “navigable waters,” as defined in the CWA, could not be interpreted to include “nonnavigable, isolated, intrastate waters” not adjacent to bodies of open water, such as the pit at issue. Id. at 171, 121 S.Ct. 675. The Supreme Court’s most recent exposition on the breadth of the Corps’ jurisdiction under the CWA came in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). In Rapanos, a consolidation of two cases, the Court considered “whether four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable watérs, constitute ‘waters of the United States’ within the meaning of the Act.” Id. at 729, 126 S.Ct. 2208 (plurality opinion). The Court of Appeals for the Sixth Circuit had upheld the Corps’ claim of jurisdiction. The Supreme Court, in a fractured 4-1^1 decision, vacated those judgments and remanded for further proceedings to determine whether the wetlands were subject to the restrictions of the CWA. Four dissenting Justices took an expansive view of the CWA’s reach. Justice Stevens, writing for the dissenting Justices, stated that the Court should have deferred to what he and his fellow dissenting Justices viewed as the Corps’ reasonable interpretation of its jurisdiction. Id. at 796, 126 S.Ct. 2208 (Stevens, J., dissenting). However, five Justices believed that the Corps’ jurisdiction is more limited, although they did not all agree on the proper test to determine the scope of that jurisdiction. Justice Scalia, writing for a four-justice plurality, stated that the term “waters of the United States” as used in the CWA “includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams!,] ... oceans, rivers, [and] lakes.’ ” Id. at 739, 126 S.Ct. 2208 (alterations in original) (citing Webster’s New International Dictionary 2882 (2d ed. 1954)). The plurality opinion noted that “the phrase [‘the waters of the United States’] does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Id. As for wetlands, the Justices in the plurality concluded that they only fall within the scope of the CWA if they have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.” Id. at 742, 126 S.Ct. 2208. Justice Kennedy concurred. Although agreeing with the plurality’s conclusion that the Corps’ jurisdiction was more limited than the dissenters believed and that the case should be remanded, Justice Kennedy disagreed with the plurality’s jurisdictional test. Under Justice Kennedy’s approach, wetlands are subject to the strictures of the CWA if they possess a “significant nexus” with “waters of the United States,” meaning that the wetlands, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’ ” Id. at 779, 780, 126 S.Ct. 2208 (Kennedy, J., concurring). At first glance, the Rapanos opinions seem to present an analytical problem: the three opinions articulate three different views as to how courts should determine whether wetlands are subject to the CWA, and no opinion was joined by a majority of the Justices. So which test should apply? Interestingly, after explaining why he would have affirmed the judgments below, Justice Stevens noted that, “[i]t has been [the Supreme Court’s] practice in a case coming to us from a lower federal court to enter a judgment commanding that court to conduct any further proceedings pursuant to a specific mandate.” Id. at 810, 126 S.Ct. 2208 (Stevens, J., dissenting). That practice, he observed “has, on occasion, made it necessary for Justices to join a judgment that did not conform to then-own views.” Id. (citations omitted). Then, Justice Stevens stated that, although the Justices voting to remand disagreed about the appropriate test to be applied, the four dissenting Justices — with their broader view of the CWA’s scope— would nonetheless support a finding of jurisdiction under either the plurality’s or Justice Kennedy’s test, and that therefore the Corps’ jurisdiction should be upheld in all cases in which either test is satisfied. Id. at 810 & n. 14,126 S.Ct. 2208. II. Discussion A. The Standard(s) for Establishing Federal Regulatory Jurisdiction Over Wetlands Following Justice Stevens’s instruction, the District Court in the instant case examined both the Rapanos plurality’s test and Justice Kennedy’s test to determine whether the Corps has jurisdiction over Donovan’s land and concluded that both tests were met, resulting in a finding of jurisdiction. Donovan argues that this was error because the opinions in Rapanos fail to provide any governing standard, and therefore, under this Court’s opinion in Rappa v. New Castle County, 18 F.3d 1043 (3d Cir.1994), pre-Rap/anos case law should govern whether Donovan’s land is subject to the CWA. We disagree. While the Courts of Appeals are split on the proper interpretation of Rapanos, none has adopted Donovan’s position. The Courts of Appeals for the Seventh and Eleventh Circuits have concluded that Justice Kennedy’s test alone creates the applicable standard for CWA jurisdiction over wetlands. United States v. Gerke Excavating, Inc., 464 F.3d 723, 724-25 (7th Cir.2006); United States v. Robison, 505 F.3d 1208, 1221-22 (11th Cir.2007). These courts based their conclusions on an analysis of the Supreme Court’s decision in Marks v. United States, in which the Court directed that, “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (citation and internal quotation marks omitted). In their view, Justice Kennedy’s opinion in Rapanos controls because, among those Justices concurring in the judgment, Justice Kennedy’s view is the least restrictive of federal jurisdiction. Gerke, 464 F.3d at 724-25; Robison, 505 F.3d at 1221-22. The Courts of Appeals for the First and Eighth Circuits have taken a different view. These courts examined the Supreme Court’s directive in Marks, but found that the Rapanos opinions did not lend themselves to a Marks analysis because neither the plurality opinion nor Justice Kennedy’s opinion relied on “narrower” grounds than the other. United States v. Johnson, 467 F.3d 56, 62-64 (1st Cir.2006); United States v. Bailey, 571 F.3d 791, 799 (8th Cir.2009). Judge Lipez, writing for the majority of the panel in Johnson, disagreed that the “narrowest grounds” in the Marks sense necessarily means those grounds least restrictive of federal jurisdiction. The court in Johnson stated that “it seems just as plausible to conclude that the narrowest ground of decision in Rapanos is the ground most restrictive of government authority ... because that ground avoids the constitutional issue of how far Congress can go in asserting jurisdiction under the Commerce Clause.” 467 F.3d at 63 (emphasis added). Even if one were to conclude that the opinion resting on the narrowest grounds is the one that relies on “less sweeping reasons than the other” — meaning that it requires the same outcome (here, the presence of federal regulatory jurisdiction) in only a subset of the cases that the other opinion would, and in no other cases — the court in Johnson concluded that Marks is unhelpful in determining which Rapanos test controls. Id. at 64. This is because Justice Kennedy’s test would find federal jurisdiction in some cases that did not satisfy the plurality’s test, and vice versa. Id. For example, if there is a small surface water connection between a wetland and a remote navigable water, the plurality would find jurisdiction, while Justice Kennedy might not. Furthermore, a wetland that lacks a surface connection with other waters, but significantly affects the chemical, physical, and biological integrity of a nearby river would meet Justice Kennedy’s test but not the plurality’s. See id. It is therefore difficult, if not impossible, to identify the “narrowest” approach. Accordingly, the Johnson Court looked to Justice Stevens’s approach in Rapanos and found it to provide “a simple and pragmatic way to assess what grounds would command a majority of the Court.” Id. According to the Johnson Court, following Justice Stevens’s instructions and looking to see if either Rapanos test is satisfied “ensures that lower courts will find jurisdiction in all cases where a majority of the Court would support such a finding.” Id. Therefore, the Courts of Appeals for the First and Eighth Circuits held that federal regulatory jurisdiction can be established over wetlands that meet either the plurality’s or Justice Kennedy’s test from Rapamos. Id. at 66; Bailey, 571 F.3d at 799. We agree with the conclusion of the First Circuit Court of Appeals that neither the plurality’s test nor Justice Kennedy’s can be viewed as relying on narrower grounds than the other, and that, therefore, a strict application of Marks is not a workable framework for determining the governing standard established by Rapanos. We also agree with its conclusion that each of the plurality’s test and Justice Kennedy’s test should be used to determine the Corps’ jurisdiction under the CWA. As we have stated in discussing Marks, our goal in analyzing a fractured Supreme Court decision is to find “a single legal standard ... [that] when properly applied, produce[s] results with which a majority of the Justices in the case articulating the standard would agree.” Planned Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682, 693 (3d Cir.1991), modified on other grounds, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). To that end, we have looked to the votes of dissenting Justices if they, combined with votes from plurality or concurring opinions, establish a majority view on the relevant issue. See United States v. Richardson, 658 F.3d 333, 340 (3d Cir.2011) (viewing as “persuasive authority” the shared view of a four-Justice dissent and a single-Justice concurrence); Horn v. Thoratec Corp., 376 F.3d 163, 176 & n. 18 (3d Cir.2004) (“Thus, on the state requirement issue, Justice Breyer joined with the four-member dissent to make a majority.”); Student Pub. Interest Research Grp. of N.J., Inc. v. AT & T Bell Labs., 842 F.2d 1436, 1451 (3d Cir.1988) (deriving holding from one Justice concurrence and four dissenting Justices). The Supreme Court has also employed this mode of analysis. In United States v. Jacobsen, 466 U.S. 109, 111, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the Supreme Court determined that the rule of law established by its prior decision in Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), could be divined by combining the opinion of the Walter Court (which garnered only two votes) with the opinion of four dissenting Justices. Justice Stevens, writing for a majority of the Justices in Jacobsen, downplayed its reliance on the votes of the dissenting Justices in extrapolating a legal standard from Walter, saying that “the disagreement between the majority and the dissenters in [Walter ] with respect to the [application of law to fact] is less significant than the agreement on the standard to be applied.” Jacobsen, 466 U.S. at 117 n. 12, 104 S.Ct. 1652; see also Vasquez v. Hittery, 474 U.S. 254, 261 n. 4, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (describing as “unprecedented” the argument that “a statement of legal opinion joined by five Justices” — including some Justices in dissent — “does not carry the force of law”), Alexander v. Choate, 469 U.S. 287, 293 & nn. 8-9, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985) (deriving holdings from opinion of the Court, concurring opinions, and dissenting opinions); Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 17, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (“On remand, the Court of Appeals correctly recognized that the four dissenting Justices and Justice Blackmun formed a majority to require application of the Colorado River test.”). Thus, we are to examine the dissenting Justices’ views to see if there is common ground. Here, there is more than just common ground. While our sister Courts of Appeals have struggled to divine the proper approach, we conclude that the struggle is greatly lessened because Justice Stevens, along with the other three Justices who joined his opinion, have actually told us what jurisdictional test is to be applied. As we noted above, Justice Stevens specifically states: I would affirm the judgments in both cases, and respectfully dissent from the decision of five Members of this Court to vacate and remand. I close, however, by noting an unusual feature of the Court’s judgments in these cases. It has been our practice in a case coming to us from a lower federal court to enter a judgment commanding that court to conduct any further proceedings pursuant to a specific mandate. That prior practice has, on occasion, made it necessary for Justices to join a judgment that did not conform to their own views. In these cases, however, while both the plurality and Justice Kennedy agree that there must be a remand for further proceedings, their respective opinions define different tests to be applied on remand. Given that all four Justices who have joined this opinion would uphold the Corps’ jurisdiction in both of these cases — and in all other cases in which either the plurality’s or Justice Kennedy’s test is satisfied — on remand each of the judgments should be reinstated if either of those tests is met. Rapanos, 547 U.S. at 810, 126 S.Ct. 2208 (Stevens, J., dissenting) (footnotes omitted). And, lest there be any confusion, he adds, “in these and future cases the United States may elect to prove jurisdiction under either test.” Id. at 810 n. 14, 126 S.Ct. 2208. Recognizing that the plurality and Justice Kennedy had failed to give a mandate to the Court of Appeals on remand, Justice Stevens and the dissenters provided the mandate. Were we to disregard this key aspect of his opinion we would be ignoring the directive of the dissenters. They have spoken and said that, while they would have chosen a broader test, they nonetheless agree that jurisdiction exists if either the plurality’s or Justice Kennedy’s test is met. Accordingly, Donovan’s invocation of our decision in Rappa is unavailing. In Rap-pa, we confronted a Supreme Court case in which the three opinions “share[d] no common denominator” and each failed to garner a majority of the Justices’ votes. Rappa, 18 F.3d at 1060 (analyzing Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981)). Faced with precedent in which there was no majority and no point of agreement whatsoever among the disparate opinions, we determined that the Supreme Court failed to establish a governing standard, and we therefore looked to prior case law to determine the relevant rule of law. Id. That is not the case here. Instead, in Rapanos there is a point of agreement and no basis for disregarding the Supreme Court’s directive that two new tests should apply. Because each of the tests for Corps jurisdiction laid out in Rapanos received the explicit endorsement of a majority of the Justices, Rapanos creates a governing standard for us to apply: the CWA is applicable to wetlands that meet either the test laid out by the plurality or by Justice Kennedy in Rapanos. In any given case, this disjunctive standard will yield a result with which a majority of the Rapanos Justices would agree. See Casey, 947 F.2d at 693. If the wetlands have a continuous surface connection with “waters of the United States,” the plurality and dissenting Justices would combine to uphold the Corps’ jurisdiction over the land, whether or not the wetlands have a “substantial nexus” (as Justice Kennedy defined the term) with the covered waters. If the wetlands (either alone or in combination with similarly situated lands in the region) significantly affect the chemical, physical, and biological integrity of “waters of the United States,” then Justice Kennedy would join the four dissenting Justices from Rapanos to conclude that the wetlands are covered by the CWA, regardless of whether the wetlands have a continuous surface connection with “waters of the United States.” Finally, if neither of the tests is met, the plurality and Justice Kennedy would form a majority saying that the wetlands are not covered by the CWA. In sum, we find that Rapanos establishes two governing standards and Donovan’s reliance on pre-Rapanos case law is misplaced. We hold that federal jurisdiction to regulate wetlands under the CWA exists if the wetlands meet either the plurality’s test or Justice Kennedy’s test from Rapanos. B. Application of the Rapanos tests to the Government’s Motion for Summary Judgment As we have now concluded that either standard in Rapanos can be utilized to establish the Corps’ jurisdiction over wetlands, we must now determine whether the evidence before the District Court was sufficient for it to have granted summary judgment in favor of the Government under either test. Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FecLR.Civ.P. 56(a). The initial burden is on the party seeking summary judgment to point to the evidence “which it believes demonstrate^] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party carries this initial burden, “the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial ” and do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks omitted). A party moving for summary judgment on an issue for which it bears the ultimate burden of proof faces a more difficult road in seeking summary judgment. As we have said, “it is inappropriate to grant summary judgment in favor of a moving party who bears the burden of proof at trial unless a reasonable juror would be compelled to find its way on the facts needed to rule in its favor on the law.” El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir.2007) (footnote omitted). In such a case, “if there is a chance that a reasonable factfinder would not accept a moving party’s necessary propositions of fact,” summary judgment is inappropriate. Id. All reasonable inferences should be drawn against the party moving for summary judgment. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); El, 479 F.3d at 238. The government met its initial burden on summary judgment of showing that Donovan’s land was subject to the Corps’ jurisdiction. The Government submitted two reports prepared by its experts, Edward Launay and scientists from the Stroud Research Center. These reports satisfy the Government’s initial burden on summary judgment for both Rapanos tests. First, the reports provide sufficient evidence that Donovan’s wetlands meet the plurality’s test to make out a prima facie case that the Government is entitled to summary judgment on the issue of the Government’s jurisdiction. See Rapanos, 547 U.S. at 742, 126 S.Ct. 2208. Both reports present facts showing that the channels on Donovan’s land — which continue through the Sawmill Branch and on to the Smyrna River, both navigable-in-fact waters — meet the plurality’s definition of “relatively permanent.” See id. at 732-33, 126 S.Ct. 2208 (plurality opinion). In concluding that the streams are perennial in nature, the Launay report cites a “degree of soil saturation and surface ponding in wetlands during the summer months, morphological conditions of the vegetation such as buttressing of tree trunks and formation of hummocks, the presence and density of plant species adapted to saturated soil conditions, and the presence of bed, bank, ordinary watermark and flowing water in the tributary channels.” JA 510. The Launay report also discusses downstream characteristics, including multiple large culverts, that reflect a perennial flow from the channels on Donovan’s land. The Stroud report also concludes that the channels on Donovan’s land are permanent based on the existence of several organisms in the wetlands and channels, as well as the presence of certain species of fish on the property. Both reports also establish the second requirement of the plurality’s test: that the wetlands have a “continuous surface connection” to a covered body of water. The Launay report tracks a continuous surface connection from Donovan’s wetlands to the Smyrna River and documents the findings with fifty-eight photographs carrying explanatory captions. The Stroud report takes a different approach, utilizing a tracing chemical that shows a continuous surface connection. The test results show that chemical levels 2700 meters downstream were non-existent prior to the test, spiked, and dropped off precipitously thereafter, reflecting a water flow downstream from Donovan’s property. Therefore, the Launay and Stroud reports satisfy the Government’s initial burden on summary judgment with respect to the plurality’s test. As for Justice Kennedy’s test for CWA coverage, the reports also satisfy the Government’s initial Rule 56 burden of showing that there is no genuine dispute that Donovan’s wetlands, “alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’ ” 547 U.S. at 780, 126 S.Ct. 2208 (Kennedy, J., concurring). The Stroud researchers added dissolved bromide and dye to the wetland complex intersecting Donovan’s property and measured levels downstream, which indicate that the Donovan wetlands contribute flow to the Sawmill Branch. The Stroud report also finds that the headwater wetlands of the Sawmill Branch, which include Donovan’s wetlands, help to remove nitrogen and protect the Delaware Estuary from excessive nutrient loading. The Stroud scientists conducted studies demonstrating that Donovan’s wetlands help sequester pollutants such as zinc and polycyclic aromatic hydrocarbons (PAHs) from downstream waters. The Government’s experts also conclude that the wetland complex that includes Donovan’s land plays an important role in the “aquatic food web,” by providing habitats and nutrients for fish species, as well as macroinvertebrates that support aquatic life in traditional navigable waters, and by supplying energy and nutrients to aquatic life in downstream navigable waters. The Launay report indicates that the gradient of the tributary stream channels on Donovan’s land is low, meaning that the wetlands retain water for relatively long periods of time and perform important functions, such as reducing sediment loads and pollutants from storm water, as well as retaining and transforming nutrients for downstream navigable waters. Furthermore, the Launay report notes that the wetlands on and adjacent to Donovan’s property discharge ground water, thereby maintaining stream flow and preserving fish and wildlife habitats. However, our analysis does not end here. Having determined that the Government met its initial burden under Rule 56, we must next analyze whether Donovan came forward with specific facts showing that there is a genuine issue for trial. Matsushita, 475 U.S. at 586-87, 106 S.Ct. 1348 (1986). The only evidence Donovan offers in opposition to the Government’s motion for summary judgment is his four-page declaration. In that declaration, Donovan states that “the amount of water flowing on my Property in a given period is completely dependent on the amount of rainfall in the area during that period” and “[t]he only source of water flow on my Property is rainwater run-off from the adjacent highway.” JA 639. Furthermore, he claims that “in periods of no rain” the channels on his property are “completely dry.” JA 640. Donovan also says that “2009 and 2010 are the rainiest and wettest years that I can recall in the nearly 50 years I have lived in the Smyrna region” and that the channels on his property were “completely dry for significant periods” in 2008, including “the summer months.” Id. Donovan’s declaration also asserts that “[i]n periods of heavy rainfall, when there is water flowing on my Property, the rainwater channels are clearly defined and easy to differentiate from the neighboring land.” JA 641. These statements all appear to be efforts to counter the Government’s evidence that Donovan’s wetlands fall within the Rapemos plurality’s test. We need not, however, analyze whether Donovan has come forward with facts sufficient to raise a genuine issue about whether the Rapanos plurality’s test is satisfied because he unquestionably has failed to raise a genuine issue about whether Justice Kennedy’s test has been met. Nothing in Donovan’s affidavit speaks to the effect his wetlands have on the chemical, physical, and biological integrity of downstream waters. Donovan’s only attempt to rebut the Government’s showing in this regard is his argument that the Government’s evidence is flawed, and that therefore a reasonable fact-finder could conclude that the Government failed to establish its regulatory jurisdiction over Donovan’s land. Specifically, Donovan argues that the Government’s experts exaggerate the purported effects that Donovan’s wetlands have on navigable-in-fact waters by lumping Donovan’s land with 761 acres of other wetlands in the Sawmill Branch watershed. He also attacks other portions of the Government’s evidence, calling it uncertain and speculative, and claiming that it could fail to convince a reasonable fact-finder that the Corps has jurisdiction over Donovan’s wetlands. However, even after drawing all reasonable inferences in Donovan’s favor, we find that he has not shown a genuine issue for trial. The unrebutted evidence in the record shows that Donovan’s wetlands contribute water flow to the Sawmill Branch — which becomes tidal approximately 2.5 miles from Donovan’s property — and help sequester pollutants such as zinc and PAHs from downstream waters. Specifically, the record evidence indicates that the intact wetland flow path on Donovan’s property removes approximately 540 grams of zinc and 12 grams of PAH compounds over its 72-meter length, while a non-wetland flow path on the south of Donovan’s property removes approximately 49 grams of zinc and 0.8 grams of PAHs over its 65-meter length. Absent Donovan’s wetlands, these pollutants would travel downstream, raising contaminant levels for up to 150,000,-000 gallons of water past EPA drinking water guidelines for decades or centuries to come. The record also shows that the Donovan wetlands are important sources of energy and carbon for downstream habitats. In addition, the Stroud scientists found fish on Donovan’s property that were also found in downstream waters of Sawmill Branch Creek. Therefore, the record evidence shows that Donovan’s wetlands alone significantly affect the chemical, physical, and biological integrity of “waters of the United States,” without even considering the effect these wetlands have on such waters when aggregated with similarly situated lands in the region. Donovan points us to the Supreme Court’s decision in Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944), and argues that summary judgment is inappropriate here because a reasonable jury would be free to disbelieve the opinions and conclusions of the Government’s experts. Sartor is not controlling here because the factual evidence offered by the Government, and outlined above, is enough to meet its burden of production for a Rule 56 motion. Donovan offered no evidence to counter the Government’s factual showing that Donovan’s property significantly affects the chemical, physical, and biological integrity of navigable waters, nor did he raise sufficient doubt about the credibility of the Government’s evidence to defeat summary judgment. See Pelphrey v. United States, 674 F.2d 243, 247 (4th Cir.1982) (affirming summary judgment for government and distinguishing Sartor as dealing with “opinion evidence” when the moving party had submitted factual affidavits). Faced with a motion for summary judgment citing record evidence supporting the Corps’ jurisdiction, Donovan cannot rely simply on the mere possibility that a jury would find the Government’s evidence insufficient. See Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; cf. El, 479 F.3d at 247 (affirming summary judgment for defendant on affirmative defense where nothing-in the record rebutted defendant’s expert evidence). There is no genuine issue as to the Corps’ jurisdiction in this case and we will therefore affirm the-District Court’s order granting summary judgment to the Government. C. Donovan’s Motion for Judgment on the Pleadings Finally, Donovan challenges the District Court’s denial of his motion for judgment on the pleadings. He alleges that the sole basis for the Corps’ purported regulatory jurisdiction in this case is the claim that Donovan’s wetlands are adjacent to a tributary of a navigable water. This allegation is derived from 33 C.F.R. § 328.3(a)(5), which states that any “tributary” of a water covered by the CWA is itself covered by the CWA, and 33 C.F.R. § 328.3(a)(7), which states that any “wetlands adjacent to [covered] waters” are themselves covered by the CWA. According to Donovan, this was the purported basis for the Corps’ jurisdiction that the Supreme Court rejected in Rápanos and therefore a claim of jurisdiction invoking this standard fails on the pleadings. The District Court correctly denied Donovan’s motion. Donovan contends that the Corps has jurisdiction only over wetlands that are adjacent to navigable-in-fact waters and that the Government’s pleadings fail for not alleging that Donovan’s wetlands are adjacent to such waters. This argument is premised on a notion that we rejected above: that Rapanos fails to create a governing standard and that, therefore, pre-Rapanos law applies. The Government’s complaint need not have pled that Donovan’s wetlands are adjacent to navigable-in-fact waters and hence the District Court properly denied Donovan’s motion for judgment on the pleadings. III. Conclusion Accordingly, we will affirm the District Court’s grant of summary judgment in favor of the Government and its denial of Donovan’s motion for judgment on the pleadings. . In Rapanos, the Supreme Court, in a 4-1-4 opinion that we discuss more fully below, described two new tests for determining whether property is “wetlands” covered by the CWA. The issue as to which test controls is a matter of first impression in this Court, and one we take up in depth below. . The statute defines “pollutant” as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” 33 U.S.C. § 1362(6). Donovan does not argue that the filler material he used on his land does not qualify as a pollutant under the CWA. . The Corps’ regulations define wetlands as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.” 33 C.F.R. § 328.3(b). The term “adjacent” is defined in the regulations as meaning “bordering, contiguous, or neighboring.” 33 C.F.R. § 328.3(c). According to the regulations, "adjacent wetlands” include "[wjetlands separated from other waters of the United States by manmade dikes or barriers, natural river berms, beach dunes and the like.” Id. . The wetlands in Riverside Bayview were adjacent to a navigable-in-fact waterway. Such waterways are inarguably covered by the CWA. See 474 U.S. at 130-31, 106 S.Ct. 455. . The District Court had jurisdiction to consider this Clean Water Act enforcement case pursuant to 28 U.S.C. §§ 1331, 1345, and 1355. We have jurisdiction to review the District Court’s conclusions pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district court's grant of summary judgment. Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 770 (3d Cir.2009). We review de novo a district court’s denial of a motion for judgment on the pleadings. DiCarlo v. St. Mary’s Hosp., 530 F.3d 255, 259 (3d Cir.2008). . The Johnson Court also suggested that the Supreme Court has moved away from the Marks formulation, citing several instances in which "members of the Court have indicated that whenever a decision is fragmented such that no single opinion has the support of five Justices, lower courts should examine the plurality, concurring and dissenting opinions to extract the principles that a majority has embraced.” 467 F.3d at 65-66 (citing cases). Moreover, the Johnson Court stated that "the fact that Justice Stevens does not even refer to Maries indicates that he found its framework inapplicable." Id. at 66. . Several Circuit Courts of Appeals have expressly reserved the issue of which Rayanos test, or tests, governs CWA enforcement actions. See Precon Dev. Corp. v. U.S. Army Corps of Eng’rs, 633 F.3d 278, 288 (4th Cir.2011) (reserving judgment on whether Corps jurisdiction can be established under either Rayanos test); N. Cal. River Watch v. Wilcox, 633 F.3d 766, 781 (9th Cir.2011) (same); United States v. Cundiff 555 F.3d 200, 210 (6th Cir.2009) (declining to decide which Rayanos test or tests govern because jurisdiction was proper under both); United States v. Lucas, 516 F.3d 316, 325-27 (5th Cir.2008) (upholding Corps jurisdiction over wetlands where evidence at trial supported jurisdiction under the reasoning of the plurality, Justice Kennedy, and Justice Stevens). . Because the four Rapanos dissenters explicitly endorsed both the plurality's and Justice Kennedy's jurisdictional tests, we are not faced with a concern, like in Rappa, that combining the votes of Justices who joined in different opinions would lead to unprincipled outcomes. Rappa noted that it would be possible to predict the outcome in any theoretical case involving a statute that discriminated among types of non-commercial speech and/or banned an entire means of communication. Rappa, 18 F.3d at 1060 n. 24. That is, knowing that four Justices in Metromedia thought statutes discriminating among types of non-commercial speech are unconstitutional and that two Justices believed total bans on a particular medium are unconstitutional, one could surmise that a statute attempting to do both would be found unconstitutional by a majority of the Metromedia Justices, but that a statute purporting to do just one would survive a challenge. Such a system, the Rappa court noted, would create the unprincipled outcome that "discriminat[ionj among types of non-commercial speech would be constitutional in and of itself, [but] would somehow be magically transformed into an unconstitutional statute if it also completely banned a means of communication.” Id. Rapanos creates no such dilemma. We need not "combine” the votes of Justices relying on different rationales to find that a majority of the Rapanos Justices would come out a particular way in a given case. Two separate rationales each independently enjoy the support of five or more Rapanos Justices, without any need to "count[] the votes” of Justices relying on different rationales. See id. . Donovan argues that the Magistrate Judge and the District Court misapplied the summary judgment standard by placing the burden of proof on him to show that his land is not subject to the CWA. While some language from the R & R and the District Court’s opinion, read in isolation, might suggest such a misapplication of Rule 56, we believe that the Magistrate Judge and District Court appropriately analyzed the second step of the summary judgment burden-shifting framework in finding that Donovan had offered no evidence rebutting the Government’s prima facie showing that it was entitled to summary judgment. . We do not purport to set out an exhaustive or exclusive list of considerations that support a finding of jurisdiction under Justice Kennedy’s test. Nor do we address the question of what is meant by the words "or in combination with similarly situated lands” in Justice Kennedy’s opinion. See Rapanos, 547 U.S. at 780, 126 S.Ct. 2208 (Kennedy, J., concurring). We simply note that, standing alone, the evidence that Donovan’s wetlands significantly affect the chemical, physical, and biological integrity of other waters more readily understood as "navigable” satisfied the Government's burden on summary judgment and that Donovan has done nothing to rebut that showing so as to create a genuine issue for trial.

Cordiano v. Metacon Gun Club, Inc.

DEBRA ANN LIVINGSTON, Circuit Judge: Plaintiffs-Appellants appeal from the judgment of the United States District Court for the District of Connecticut (Arterton, J.), dismissing various claims under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-6992k, and the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387. First, the district court dismissed Plaintiffs-Appellants’ permitting violation claim under 42 U.S.C. § 6925(a),- for failure to state a claim. Second, the district court granted Defendants-Appellees summary judgment on Plaintiffs-Appellants’ RCRA “open dumping” and “imminent and substantial endangerment” claims under 42 U.S.C. § 6945 and 42 U.S.C. § 6972(a)(1)(B). Finally, the district court granted Defendants-Appellees summary judgment on the claim that Defendants-Appellees are discharging pollutants into navigable waters without a permit in violation of the CWA, 33 U.S.C. § 1311(a). We affirm the decisions of the district court. With respect to the Plaintiffs-Appellants’ RCRA “imminent and substantial endangerment” claim and CWA permitting claim, however, we affirm on alternative grounds. BACKGROUND Plaintiffs-Appellants are SimsburyAvon Preservation Society, LLC, a group of homeowners who live near DefendantsAppellees’ shooting range, and Gregory Silpe, a member thereof (collectively referred to as “SAPS”). Defendants-Appellees Metacon Gun Club, Inc., and its members and guests (collectively referred to as “Metacon”) operate a shooting range that, according to SAPS, engages in the discharge and accumulation of lead munitions on Metacon’s site in violation of the RCRA and the CWA. The following factual background is drawn from the record assembled in connection with Metacon’s motion to dismiss and its two summary judgment motions. I. The Metacon Site Metacon has operated a private outdoor shooting range at its present location on 106 Nod Road in Simsbury, Connecticut since the mid-1960s. Metacon’s range is located on 137 acres of woods, meadows, wetlands and mountainside, and is situated on a flood plain of the Farmington River Valley. The site is bounded to the north by the Connecticut State Police pistol and rifle ranges, to the west by Nod Road and the Farmington River, to the south by a residence and a golf course, and to the east by a cliff that runs along the entire eastern property boundary. SAPS provided evidence that, due to flooding at the site and overflow of the Farmington River, there is an occasional hydrologic connection between waters on the Metacon site and the Farmington River. SAPS also provided limited evidence of a continuous surface water connection between wetlands on the Metacon site and a body of water called Horseshoe Cove, a tributary that flows directly into the Farmington River. Metacon provided evidence to the contrary. Metacon has a 100-yard shooting range at the back of which stands an engineered earthen berm for bullet containment. There is evidence indicating that wetlands on the Metacon site are located in close proximity to the berm and on unspecified portions of the shooting range. Metacon’s Environmental Stewardship Plan states that “[a] vernal pond is located directly in back of the backstop berm, and wetlands border the range immediately to the North and extend East beyond the berm for approximately 100 yards.” J.A. at 211. Further, the District Engineer for the Army Corps of Engineers provided Metacon with a permit to expand its berm in 1990. The permit described the project location as “wetlands adjacent to the Farmington River.” Id. at 467. II. Evidence of Lead Contamination at Metacon SAPS provided evidence of lead accumulation on Metacon’s site based on a SAPS member’s non-specific observation of a “tremendous amount of spent ammunition on the ground,” id. at 596, and Metacon’s admission in a related state lawsuit that “[tjhousands of pounds of lead are deposited at the Site,” id. at 696. Meanwhile, Metacon provided evidence that, for at least the last ten years, it has conducted “regular clean-ups,” where members rake the range to collect materials such as spent casings and munitions. Id. at 503. Several rounds of expert testing have been performed on Metacon’s site. In November 2003, the State of Connecticut Department of Environmental Protection (“CTDEP”) indicated that groundwater and surface water samples from the Meta-con site exceeded Connecticut’s Remediation Standard Regulation (“RSR”) protection criterion for lead in groundwater and surface water. However, given time constraints on the testing and the fact that standard sampling protocol was not followed, CTDEP indicated that the result could be “skewed[,] ... potentially resulting in higher concentrations of metals parameters.” Id. at 275. As a result, CTDEP requested that Metacon retain a consultant to resample the monitoring wells and surface water east of the berm using an appropriate sampling methodology, and report back to the Department. Metacon hired Leggette, Brashears & Graham, Inc. (“LBG”), which provides professional groundwater and environmental engineering services, to conduct the requested testing. In an April 2004 report, LBG found that “the ground water beneath the shooting range has not been impacted by lead from the shooting range,” and that, with respect to wetland surface water, “the dissolved lead findings demonstrate that lead is not leaching out of the soil or surface water to contaminate the surface water.” Id. at 266. In sum, the sampling “demonstrated that the shoo[t]ing activities at the Metacon property [have] not resulted in lead contamination of the ground water or surface water at the Metacon site.” Id. at 267. Based on this report, the CTDEP concluded that “[a]ll the results indicate[] that lead was not detected or was present at concentrations in groundwater and surface water below action levels.” Id. at 262. SAPS disputed these findings with a May 2005 report produced by its own expert, Advanced Environmental Interface, Inc. (“AEI”). Unlike the LBG study, which tested only groundwáter and wetland surface water samples, AEI tested soil samples and wetland sediment samples, as well as wetland surface water samples from the range and area surrounding the berm. With respect to soil samples, all samples collected from the backstop berm area, and all but one sample collected from locations between the firing line and berm, contained total lead concentrations that exceeded the CTDEP Direct Exposure Criterion (“DEC”) for residential sites, with several samples exceeding the CTDEP Significant Environmental Hazard (“SEH”) notification threshold. Some of these samples were subject to a leaching procedure, with results indicating that “the lead is leachable and may over time pose a threat to ground water quality.” Id. at 643. With respect to wetland sediment samples, the total lead concentration for all samples exceeded the CTDEP DEC for residential sites. As to the wetland surface water samples, the report found different results in filtered and unfiltered samples. As to the unfiltered samples, the total lead concentrations exceeded the CTDEP chronic aquatic life criterion, with some samples exceeding the acute aquatic life criterion. However, the dissolved lead in the filtered samples was non-detect, meaning that the total lead concentrations in the unfiltered samples were likely “the result of either turbidity caused by suspended lead-bearing particles or colloidal matter.” Id. at 644. The AEI report does not specifically explain the relevance of the distinction between the results from the filtered and unfiltered wetland surface water samples. The AEI report states that “[s]pent ammunition from typical firing range activities has contaminated various environmental media on the Metacon Gun Club site.” Id. at 645. Although the report notes that “firing-range-related contaminants on the site ... represent[ ] a potential exposure risk to both humans and wildlife,” it concludes that “[a] risk assessment utilizing the data obtained during this investigation would be necessary to evaluate the degree of risk to humans and wildlife.” Id. at 646. It is undisputed that Metacon does not have a hazardous waste disposal permit under the RCRA, 42 U.S.C. § 6925, or a National Pollutant Discharge Elimination System (“NPDES”) permit, which is required for the discharge of pollutants under the CWA, 33 U.S.C. § 1311(a). III. Metacon’s Environmental Stewardship Plan On July 13, 2004, after this litigation commenced, Metacon adopted an Environmental Stewardship Plan. It provides for the annual raking of the range and screening of debris to recover bullets and fragments, as well as the use of “vacuuming machinery rather than hand-raking, and mechanical separation machinery in place of hand screening.” J.A. at 214. The Plan also provides for the mining of the berm in the year 2024. DISCUSSION I. Standards of Review Since SAPS’s RCRA permit violation claim is before us on appeal from the grant of a motion to dismiss, with respect to that claim we “accept the facts alleged in the ... complaint as true.” Spool v. World Child Int’l Adoption Agency, 520 F.3d 178, 180 (2d Cir.2008). Our review is de novo. Id. at 183. We review the district court’s grant of summary judgment on the remaining RCRA and CWA claims de novo, construing the evidence in the light most favorable to the nonmoving party. Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir.2008). Summary judgment is warranted only upon a showing by the movant “that there is no genuine issue as to any material fact and that the moving party is entitled to ... judgment as a matter of law.” Scholastic, Inc. v. Harris, 259 F.3d 73, 81 (2d Cir.2001) (quoting Fed.R.Civ.P. 56(c)). When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Virgin Atl. Airways Ltd. v. British Airways PLC, 257 F.3d 256, 273 (2d Cir.2001). In that event, the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. II. RCRA A. Statutory Background RCRA is a “comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste.” Meghrig v. KFC W., Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996). “RCRA’s primary purpose ... is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, ‘so as to minimize the present and future threat to human health and the environment.’ ” Id. (quoting 42 U.S.C. § 6902(b)). The statute contains a citizen suit provision, 42 U.S.C. § 6972, “which permits private citizens to enforce its provisions in some circumstances.” Id. at 484,116 S.Ct. 1251. SAPS pursues two claims under the RCRA citizen suit provision. First, 42 U.S.C. § 6972(a)(1)(A) permits a civil action against any person “who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter.” In its permitting violation claim, SAPS alleges that Metacon is operating a facility for the disposal of hazardous waste without the requisite permit, in violation of 42 U.S.C. § 6925(a). Second, 42 U.S.C. § 6972(a)(1)(B) permits a civil action against any person “who has contributed or who is contributing to the past or present ... disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” SAPS claims that lead munitions are being disposed of on Metacon’s site and that this “may present an imminent and substantial endangerment,” triggering liability under 42 U.S.C. § 6972(a)(1)(B). RCRA defines solid waste as “any garbage ... and other discarded material ... resulting from industrial, commercial, mining, and agricultural operations, and from community activities.” 42 U.S.C. § 6903(27) (emphasis added). In order for waste to be classified as hazardous under RCRA, “it must first qualify as a solid waste” pursuant to the statute. Conn. Coastal Fishermen’s Ass’n v. Remington Arms Co., 989 F.2d 1305, 1313 (2d Cir. 1993); see also 42 U.S.C. § 6903(5) (“The term ‘hazardous waste’ means a solid waste [that also has additional characteristics.]”). As a threshold matter, because SAPS’s permitting violation claim is based on the disposal of hazardous waste and its “imminent and substantial endangerment” claim requires the disposal of solid or hazardous waste, both claims require a finding that the spent munitions and their remains accumulating on Metacon’s site constitute a solid waste under the RCRA. We have recognized that “RCRA regulations create a dichotomy in the definition of solid waste,” Conn. Coastal, 989 F.2d at 1314, so that a different definition applies to permitting violation claims than to claims of “imminent and substantial endangerment.” With regard to the latter, 40 C.F.R. § 261. 1(b)(2)(h) provides that the statutory definition of solid waste in 42 U.S.C. § 6903(27) (in relevant part, that solid waste is “any garbage ... and other discarded material ... resulting from ... community activities”) “applies to ‘imminent hazard’ lawsuits brought by the United States under ... 42 U.S.C. § 6973.” Conn. Coastal, 989 F.2d at 1314. Because the language of the “imminent and substantial endangerment” citizen suit provision is “nearly identical” to the provision governing suit by the United States, id. at 1315, we have held that the “statutory definition of solid waste applies to citizen suits brought to abate imminent hazard to health or the environment,” Id.; of. 42 U.S.C. § 6972(a)(1)(B) (citizen suit provision); id. § 6973(a) (government suit provision). The definition of solid waste in the RCRA regulations governing permitting violations and other related matters “is narrower than its statutory counterpart.” Conn. Coastal, 989 F.2d at 1314; see also Military Toxics Project v. EPA, 146 F.3d 948, 951 (D.C.Cir.1998) (“Although the EPA has narrowed the definition of solid waste for purposes of Subtitle C, the statute itself still provides the relevant definition for purposes of Subtitle G, which authorizes the Administrator (§ 7003) — or, indeed, ‘any person’ (§ 7002(a)(1)(B)) — to bring suit in order to force such action as may be necessary to abate ‘an imminent and substantial endangerment to health or the environment’ caused by solid waste.” (quoting 42 U.S.C. §§ 6972(a)(1)(B), 6973)); Owen Elec. Steel Co. of S. C., Inc. v. Broumer, 37 F.3d 146, 148 n. 3 (4th Cir. 1994) (“[T]he statutory definition of ‘solid waste’ ... is broader than the regulatory definition.”) (citing Conn. Coastal, 989 F.2d at 1315). As this Court said in Connecticut Coastal, these “regulations define solid waste as ‘any discarded material’ and further define discarded material as that which is ‘abandoned.’ Materials that are abandoned have been ‘disposed of.’ ” 989 F.2d at 1314 (citations omitted) (quoting 40 C.F.R. § 261.2). This narrower definition of solid waste “applies ... to wastes that also are hazardous for purposes of the regulations implementing Subtitle C of RCRA.” 40 C.F.R. § 261.1(b)(1). Subtitle C includes 42 U.S.C. § 6925(a), the hazardous waste permitting provision pursuant to which SAPS initiated its permitting claim. Concluding that the “[d]ual definitions of solid waste are suggested by the structure and language of RCRA,” and that the regulations pi'omulgated by the Environmental Protection Agency (“EPA”) “reasonably interpret the statutory language,” we have accorded deference to the EPA’s dichotomous regulatory definition of solid waste pursuant to Chevron v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Conn. Coastal, 989 F.2d at 1315. Accordingly, SAPS’s 42 U.S.C. § 6925(a) claim that Metacon is disposing of hazardous waste without a permit is governed by the narrower regulatory definition of solid waste, while SAPS’s 42 U.S.C. § 6972(a)(1)(B) “imminent and substantial endangerment” claim is governed by the broader statutory definition in 42 U.S.C. § 6903(27). B. The Permitting Claim SAPS claims that Metacon is operating a hazardous waste disposal facility without a permit in violation of 42 U.S.C. § 6925(a). Hazardous waste within the meaning of 42 U.S.C. § 6925(a) must meet the narrower regulatory definition of solid waste. Thus, to prevail, SAPS must allege and prove that the lead deposited on the Metacon site is a “discarded material,” 42 U.S.C. § 6903(27), which 40 C.F.R. § 261.2(a)(2)(i)(A) defines in relevant part as any material which is “abandoned” by being “[disposed of’ or by being “[a]ccumulated, stored, or treated (but not recycled) before or in lieu of being abandoned by being disposed of.” 40 C.F.R. § 261.2(b). SAPS argues that the maintenance of a shooting range where lead shot accumulates involves “discarded material” within the meaning of the RCRA permitting regulations. The district court dismissed this claim pursuant to Fed.R.Civ.P. 12(b)(6). The court noted that' the EPA took the position in amicus briefs in both Connecticut Coastal and Long Island Soundkeeper Fund, Inc. v. N.Y. Athletic Club, No. 94 Civ. 0436(RPP), 1996 WL 131863 (S.D.N.Y. Mar.22, 1996), that the ordinary use of lead shot on a shooting range does not fall within the regulatory definition of solid waste because “[sjpent rounds of ammunition and target fragments are not ... ‘discarded material’ within the meaning of the regulation, because they have not been ‘abandoned,’ ... [but] come to rest on land ... as a result of their proper and expected use.” Simsbury-Avon Pres. Soc’y, LLC v. Metacon Gun Club, Inc., No. 3:04 Civ. 803(JBA), 2005 WL 1413183, at *5 (D.Conn. June 14, 2005). The court observed further that the EPA’s guidance manual, Best Management Practices for Lead at Outdoor Shooting Ranges, published in 2001, states that “[l]ead shot is not considered a hazardous waste subject to RCRA at the time it is discharged from a firearm because it is used for its intended purpose. As such, shooting lead shot (or bullets) is not regulated nor is a RCRA permit required to operate a shooting range.” Id. (quoting EPA Doc. No. EPA-902-B-01-001). The court concluded that the EPA’s interpretation of its regulations was reasonable and entitled to deference. Id. at *6. In response to a request from this Court, the United States has submitted an amicus brief addressing whether lead shot discharged at a shooting range falls within the regulatory definition of solid waste set forth in 40 C.F.R. § 261.2. The United States maintains that the “EPA ... has consistently taken the position that the discharge of lead shot as part of the normal use of that product (i.e., being fired from a gun at a firing range) does not render the materials ‘discarded’ within the meaning of the RCRA subtitle C permitting regulations under 42 U.S.C. § 6925(a),” and further that the “EPA has repeatedly stated that its regulatory jurisdiction under RCRA does not apply to products that are applied to the land in the ordinary manner of use, because such products are being used, not ‘abandoned.’ ” United States Supp. Amicus Br. 5-6. We conclude that this interpretation of 40 C.F.R. § 261.2 by the EPA is entitled to deference. See Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). The regulation is ambiguous as to whether lead shot discharged into a shooting range’s berm, or the range itself, constitutes “discarded material.” A person shooting a gun into a berm clearly knows that his spent ammunition will remain there unless removed. But has he therefore discarded it? Or has he instead merely used the ammunition in its intended manner, with the result that it is left on the land? The text of 40 C.F.R. § 261.2 provides no definitive answer. In such circumstances we will generally defer to an agency’s interpretation of its own regulations, including one presented in an amicus brief, so long as the interpretation is not plainly erroneous or inconsistent with law. See Roth ex rel. Beacon Power Corp. v. Perseus, LLC, 522 F.3d 242, 247-48 (2d Cir.2008); see also Linares Huarcaya v. Mukasey, 550 F.3d 224, 229 (2nd Cir.2008) {“Auer deference ... is warranted only when the language of the regulation is ambiguous.” (internal quotation marks omitted)); Am. Fed’n of State, County & Mun: Employees v. Am. Int’l Group, Inc., 462 F.3d 121, 126 (2d Cir. 2006) (noting that “while agency interpretations that lack the force of law do not warrant deference when they interpret ambiguous statutes, they do normally warrant deference when they interpret ambiguous regulations ”); M. Fortunoff of Westburg Corp. v. Peerless Ins. Co., 432 F.3d 127, 139 (2d Cir.2005) (“To the extent that the amicus brief is interpreting the agency’s own regulations, as it is here, it is entitled to deference under Auer, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79, as long as the regulation is ambiguous.”). Here, the agency reasonably determined that lead shot put to its ordinary, intended use, i.e., discharged at a shooting range, is neither “material which is ... abandoned by being ... [disposed of,” nor “[accumulated ... before or in lieu of being abandoned by being disposed of.” 40 C.F.R. § 261.2(a)(2)®, (b). The EPA’s distinction between “abandonment” of lead shot, which falls within the regulatory definition of solid waste, and the normal, intended use of lead shot at a shooting range, which does not, is consistent with related RCRA regulations. For example, 40 C.F.R. § 261.2(e)(ii) provides that certain “commercial chemical products ... are not solid wastes if they are applied to the land and that is their ordinary manner of use.” Similarly, “[a] military munition is not a solid waste when ... [u]sed for its intended purpose,” while an “unused military munition is a solid waste when ... [t]he munition is abandoned by being disposed of.” 40 C.F.R. § 266.202(a), (b); see also Military Toxics Project, 146 F.3d at 952 (“The Military Munitions Rule provides that a military munition that lands on a firing range is not a solid waste and hence cannot be a hazardous waste for purposes of Subtitle C.”). More generally, the EPA’s position that materials put to their ordinary, intended use are not “abandoned” under the regulatory definition of solid waste, and hence are not subject to the permitting requirements of 42 U.S.C. § 6925(a), is consistent with the RCRA. As this Court has recognized, the words of the statute “contemplate that the EPA would refine and narrow the definition of solid waste,” Conn. Coastal, 989 F.2d at 1315, for the purpose of the more stringent regulatory treatment afforded to hazardous wastes in Subchapter III, where the permitting provisions are located. The EPA’s interpretation of its regulations — excluding from the more stringent permitting requirements of § 6925(a) those materials deposited on the land as part of their intended use — does just that. We also note the consistency of the EPA’s interpretation of 40 C.F.R. § 261.2 over time. See Auer, 519 U.S. at 462, 117 S.Ct. 905 (observing that an agency’s interpretation of a regulation contained in a legal brief was entitled to deference where it was “in no sense a ‘post hoc rationalization’ advanced by an agency seeking to defend past agency action against attack” and there was no reason to suspect the interpretation did not reflect “the agency’s fair and considered judgment on the matter in question”). The EPA took the position that lead munitions discharged at a shooting range do not fall within the regulatory definition of solid waste in an amicus brief to this Court in Connecticut Coastal, 989 F.2d at 1315, decided in 1993, and again in an amicus brief to a district court in Long Island Soundkeeper Fund, Inc., 1996 WL 131863 at *8-9, decided in 1996. Furthermore, in the “Best Management Practices” manual the EPA makes clear that while spent lead shot left in the environment “is subject to the broader definition of solid waste” employed elsewhere in the RCRA, “[ljead shot is not considered a hazardous waste subject to RCRA at the time it is discharged from a firearm ... nor is a RCRA permit required to operate a shooting range.” J.A. at 129. SAPS argues that “[e]ven if it is determined that the act of shooting may not require a RCRA permit ... the maintenance of a site where shot accumulates should.” Appellants’ Br. 14. However, the EPA’s interpretation is that the nature of a material’s use, not the length of time it lies unrecovered, determines whether the regulatory definition of solid waste applies. See United States Supp. Amicus Br. 9 (“EPA has interpreted its regulations to mean that, when lead shot falls on a gun range as part of the normal use of the range, RCRA Section 6925(a) permit requirements do not arise by the mere passage of time.”). We defer to the EPA’s interpretation of 40 C.F.R. § 261.2. Because the lead on Metacon’s site was not abandoned but is the result of the regular, intended use of lead shot at a shooting range, Metacon was not required to obtain a permit under 42 U.S.C. § 6925(a). Accordingly, SAPS’s permitting claim, which is premised on such a requirement, was properly dismissed. C. The Imminent and Substantial Endangerment Claim SAPS’s next claim is that Metacon has disposed of solid waste, i.e., the lead that has been “discarded” on its site, 42 U.S.C. § 6903(27), that “may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B). The district court granted Metacon summary judgment on the ground that SAPS provided insufficient evidence that solid waste had been “discarded” on the Metacon site in light of Metacon’s uncontested evidence that spent casings and munitions are periodically removed. Simsbury-Avon Pres. Soc’y v. Metacon Gun Club, No. 3:04 Civ. 803(JBA), 2006 WL 2223946, at *9 (D.Conn. Aug.2, 2006). We need not reach the issue of whether lead on Metacon’s site has been “discarded” within the meaning of the statutory definition of solid waste. See Conn. Coastal, 989 F.2d at 1316 (“RCRA regulations apply the broader statutory definition of solid waste to imminent hazard suits.”). Metacon argues that, assuming arguendo that lead is discarded on its site, the district court’s grant of summary judgment should be affirmed on the alternative ground that there is insufficient evidence that the discarded lead constitutes a “solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B). This standard cannot be met as a matter of law, says Metacon, because the AEI report on which SAPS relies concedes that the “degree of risk to humans and wildlife” cannot be assessed without further investigation, which SAPS has not undertaken. J.A. at 646. SAPS responds that the AEI report’s findings are sufficient to raise a material issue of fact as to whether the spent ammunition on the site “may” present an “imminent and substantial endangerment.” For the reasons stated here, we conclude that the AEI report does not raise a material issue of fact and that summary judgment was properly granted. 1. Imminent and Substantial Endangerment Standard The RCRA citizen suit provision, 42 U.S.C. § 6972(a)(1)(B), provides a cause of action against any person ... including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. 42 U.S.C. § 6972(a)(1)(B). The RCRA defines “disposal” as the “discharge, deposit, ... or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be ... discharged into any waters.” 42 U.S.C. § 6903(3). We have indicated that the “imminent and substantial endangerment” standard is a broad one: Significantly, congress used the word “may” to preface the standard of liability: “present an imminent and substantial endangerment to health or the environment.]” This is expansive language, which is intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes. Dague v. City of Burlington, 935 F.2d 1343, 1355 (2d Cir.1991) (internal quotation marks and citations omitted), judgment rev’d in part on other grounds, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); see also Me. People’s Alliance v. Mallinckrodt, Inc., 471 F.3d 277, 288 (1st Cir.2006) (noting that “at least four of our sister circuits have construed [§ 6972(a)(1)(B)] expansively” and that “all four courts have emphasized the preeminence of the word ‘may’ in defining the degree of risk needed to support [§ 6972(a)(l)(B)’s] liability standard”). No matter how broadly read, however, the text of 42 U.S.C. § 6972 requires the presence of solid or hazardous waste that may present an “endangerment” that is “imminent” and “substantial.” Each of these terms benefits from evaluation. In Dague, we stated that “imminency” requires a showing that a “risk of threatened harm is present.” Dague, 935 F.2d at 1356; see also Meghrig, 516 U.S. at 485-86, 116 S.Ct. 1251 (imminency requires “a threat which is present now, although the impact of the threat may not be felt until later”); Me. People’s Alliance, 471 F.3d at 296 (imminency requires a “reasonable prospect of future harm ... [that] is near-term”); Chem. Weapons Working Group, Inc. v. U.S. Dep’t of Def, 61 Fed.Appx. 556, 561 (10th Cir.2003) (“A vague possibility of future harm cannot satisfy [42 U.S.C. § 6972(a)(1)(B) ], which applies to dangers that are both imminent and substantial.”(internal quotation marks omitted)); Price v. U.S. Navy, 39 F.3d 1011, 1019 (9th Cir.1994) (“A finding of ‘imminency’ does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present.”). Nonetheless, liability under 42 U.S.C. § 6972(a)(1)(B) is not “limited to emergency-type situations,” and “[a] finding of ‘imminency’ does not require a showing that actual harm will occur immediately.” Dague, 935 F.2d at 1356. “An ‘imminent hazard’ may be declared at any point in a chain of events which may ultimately result in harm to the public.” Id. (internal quotation marks omitted). As for the requirement that the endangerment at issue be “substantial” — a term for which the RCRA provides no definition or explanation, and that we did not specifically comment on in Dague — we agree with other Circuits that have concluded that an endangerment is “substantial” if it is serious. See Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1021 (10th Cir.2007) (“[A]n endangerment is substantial under RCRA when it is serious.” (internal quotation marks omitted)); Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1015 (11th Cir.2004) (“Because the operative word [in 42 U.S.C. § 6972(a)(1)(B) ] is ‘may,’... the plaintiffs must show that there is a potential for an imminent threat of a serious harm.”); Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248, 259 (3d Cir.2005) (stating that Parker’s “approach ... is most faithful to the statutory language, especially as to the word ‘substantial’ ”); Cox v. City of Dallas, 256 F.3d 281, 300 (5th Cir.2001) (“[A]n endangerment is ‘substantial’ if it is ‘serious.’ ”); Price, 39 F.3d at 1019 (“[The] endangerment must be substantial or serious.”). This interpretation comports with the ordinary meaning of “substantial,” which includes “being of moment,” or “important.” Webster’s Third New International Dictionary 2281 (2002). Although “the courts have agreed that the word ‘substantial’ implies serious harm,” there has “been some reluctance to quantify the needed level of harm more precisely,” Me. People’s Alliance, 471 F.3d at 288, and we decline to do so here. See Burlington N. & Santa Fe Ry. Co., 505 F.3d at 1021 (stating that a showing of serious endangerment “does not necessitate quantification of endangerment”). As for endangerment, “[c]ourts have consistently held that ‘endangerment’ means a threatened or potential harm and does not require proof of actual harm.” Dague, 935 F.2d at 1356. An endangerment that is “imminent and substantial” requires a “reasonable prospect of future harm.” Me. People’s Alliance, 471 F.3d at 296; see also Burlington N. & Santa Fe Ry. Co., 505 F.3d at 1021 (stating that “an endangerment is substantial where there is reasonable cause for concern that someone or something may be exposed to risk of harm” (emphasis added)); Interfaith Cmty. Org., 399 F.3d at 259 (same). As the First Circuit recently summarized: “[T]he combination of the word ‘may’ with the word ‘endanger,’ both of which are probabilistic, leads us to conclude that a reasonable prospect of future harm is adequate to engage the gears of [§ 6972(a)(1)(B) ] so long as the threat is near-term- and involves potentially serious harm.” Me. People’s Alliance, 471 F.3d at 296. 2. SAPS’s Evidence Pointing to the AEI report, SAPS argues that it has adduced sufficient evidence to create a material issue of fact as to whether lead contamination on Meta-con’s site “may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B). We disagree for at least two reasons. Specifically, SAPS has failed to adduce sufficient evidence on either of two issues: (1) the likelihood that existing lead contamination will in fact result in harm to human health or the environment; and (2) the severity of any harm that might occur. With respect to the first issue, SAPS’s expert report states that the “degree of potential exposure” of humans and wildlife to lead contamination on the site — with respect to impacted soils, wetland surface water and wetland sediment — was not assessed. J.A. at 644-45. The report concludes as follows: “The presence of firing-range-related contaminants on the site, primarily total lead, represents a potential exposure risk to both humans and wildlife. A risk assessment utilizing the data obtained during this investigation would be necessary to evaluate the degree of risk to humans and wildlife.” Id. at 646 (emphasis added). SAPS never undertook such a risk assessment. The record is thus insufficient to permit a factfinder to assess the magnitude of the possible risk identified in the AEI report — a risk, parenthetically, that was not detected at all in the analysis performed by LGB. There is thus insufficient evidence for a jury to find that the alleged contamination presents a reasonable prospect of future harm, and hence that it “may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B); see also Birch Corp. v. Nev. Inv. Holding, Inc., 152 F.3d 924 (9th Cir.1998) (unpublished opinion) (letter stating the “product [, i.e., gasoline,] may pose a significant threat to public health/safety” was found to be insufficient to create a material issue of fact regarding imminent and substantial endangerment because the letter “makes no statement about the imminence of these harms” and indicates merely a “possible substantial endangerment to the public health”). The second concern arises from the failure of SAPS’s proffered evidence to raise an issue of fact as to the seriousness of the risk it alleges. SAPS points to evidence in the AEI report that soil, wetland sediment and wetland surface water samples indicate the presence of lead at levels exceeding various Connecticut regulatory standards for residential sites. Even assuming arguendo that “[p]roof of contamination in excess of state standards may support a finding of liability, and may alone suffice for liability in some cases,” Interfaith Cmty. Org., 399 F.3d at 261, however, the record in this case is insufficient for a reasonable jury to find that the lead contamination at issue here “involves potentially serious harm.” Me. People’s Alliance, 471 F.3d at 296. The AEI report compares the result of samples taken from the Metacon site to “risk-based and health-based criteria developed by CTDEP.” J.A. at 641. The report states: Soil sample laboratory test results for total lead and other metals are compared to Direct Exposure Criteria (DEC) of the CTDEP Remediation Standard Regulations (RSRs) and to CTDEP Significant Environmental Hazard (SEH) notification thresholds specified in Connecticut General Statutes (C.G.S.) 22a-6u. RSR DEC are health-based standards developed by CTDEP to be protective of human health and are used in this report by AEI as guidelines to assess the potential risk to human health via long-term exposure (i.e., skin contact, ingestion, inhalation, etc.) to constituents in the soil. SEH thresholds are criteria developed by CTDEP to identify potentially significant hazards to human health and the environment. Id. The report finds that various samples drawn from the Metacon site exceeded Connecticut’s RSR and SEH thresholds for residential sites, and draws the conclusion that lead contamination on the site presents “a potential exposure risk to both humans and wildlife.” Id. at 646. The report notes specifically, however, in the section labeled “Exposure Assessment,” that evaluation of the degree of such risk would require a further risk assessment. See J.A. 644-45. Because it did not undertake this assessment, SAPS relies solely on the conclusion that certain samples from the Metacon site exceeded Connecticut’s RSR and SEH standards to support the claim that lead on the site presents a potentially serious risk. This is plainly insufficient to raise a material issue. At the start, state environmental standards “do not define a party’s federal liability under RCRA.” Interfaith Cmty. Org., 399 F.3d at 261 n. 6. Even the most cursory review of Connecticut law, moreover, strongly suggests that the mere fact that some samples taken from the Metacon site may exceed Connecticut’s RSR standards provides an insufficient basis for a jury to find a reasonable prospect of future harm that is both “near-term and ... potentially serious.” Me. People’s Alliance, 471 F.3d at 296. Connecticut’s RSR standards define, inter alia, the threshold levels to which contaminated sites must be remediated in circumstances where the CTDEP has determined remediation is necessary. See Conn. Agencies Regs. §§ 22a-133k-l(b), 22a-133k-2(a). Notably, however, the RSRs “do not create in and of themselves a requirement that remediation be undertaken, nor do they specify a time-frame for completing remediation.” Conn. Dep’t of Envtl. Prot., Remediation Standard Regulations: An Environmental Program Fact Sheet (updated Aug. 2007), available at http://www.et.gov/Dep/cwp/view.asp?a= 2715&q=325014&depN av_GID=1626. With regard to hazardous waste disposal sites, for example, to which the RSRs apply, Connecticut law authorizes the CTDEP to undertake a site assessment and to order remedial action on the basis of this assessment. See Conn.. Gen.Stat. §§ 22a-133d, 22a-133e. Remediation to the DEC threshold is not required merely because this threshold has been exceeded, but in light of the agency’s consideration of a range of risk factors, including the characteristics of hazardous substances, such as their mobility and toxicity, the likelihood that these substances will be released, and the nature of potentially threatened populations or environments. See Conn. Gen.Stat. § 22a-133d (specifying required elements in a site assessment, including “a score developed by using the uncontrolled hazardous waste site ranking system found in the Code of Federal Regulations,. Title 40, Section 300, Appendix A, as amended”); Honeywell Int% Inc. v. EPA, 372 F.3d 441, 444 (D.C.Cir. 2004) (describing considerations employed in ranking hazardous waste sites). The AEI report says that it employs the DEC thresholds “as guidelines to assess the potential risk to human health via long-term exposure (i.e., skin contact, ingestion, inhalation, etc.) to constituents in the soil.” J.A. at 641. Yet SAPS has provided no evidence that anyone is subject to long-term exposure to lead contamination at the Metacon site, or that there are realistic pathways of exposure there. Indeed, the report found that none of the soil samples drawn from the firing line, where most people at the club would presumably be located while there, exceeded these thresholds. See J.A. at 642-43. As to the AEI report’s finding that various samples exceeded the SEH notification threshold, this finding, too, provides a wholly inadequate basis, standing alone, to support a reasonable factfinder’s eonclusion that the lead at Metacon presents an imminent and substantial endangerment. Conn. Gen.Stat. § 22a-6u imposes a requirement that (1) if “a technical environmental professional” determines that there is “pollution of soil within two feet of the ground surface [that] contains a substance” in excess of the applicable SEH threshold, the professional must notify the owner of the contaminated parcel within seven days, Conn. Gen.Stat. § 22a-6u(d)(l); and (2) the “owner of the subject parcel shall notify the commissioner [of the CTDEP] in writing” within ninety days, unless, inter alia, the soil is remediated so that the contaminant does not exceed the pertinent direct exposure criterion. Id. § 22a-6u(d)(2). Standing alone, however, the fact that some Metacon samples triggered this notification requirement does not support the conclusion that the site is contaminated so as to pose a potentially serious risk of harm for the purpose of the federal standard articulated in § 6972(a)(1)(B). Indeed, CTDEP states that, when it receives notification of the presence of a contaminant above the SEH level, the “DEP may ... indicate, if appropriate, that no additional action is required to abate the hazard condition identified in the notification.” Conn. Dep’t of Envtl. Prot., Environmental Program Fact Sheet: Reporting of Significant Environmental Hazards 3 (Nov. 2, 2004), available at http://www.ct.gov/dep/lib/dep/site_clean_ up/hazard_notifieation/faq_report_haz.pdf. In sum, evidence that certain samples taken from the Metacon site exceeded Connecticut’s RSR and SEH standards simply provides an inadequate basis for a jury to conclude that federal law, specifically, § 6972(a)(1)(B), has been violated. Absent additional evidence, the mere fact that SAPS has produced such samples does not support a reasonable inference that Metacon’s site presents an imminent and substantial endangerment. We emphasize that we do not hold that exceeding Connecticut’s RSR and SEH standards can never be relevant to a determination of whether a risk is potentially serious under the RCRA, but rather that the evidence in this case, standing alone, is insufficient to create a material issue of fact as to whether lead contamination on Metacon’s site may present an imminent and substantial endangerment. We conclude that SAPS’s evidence (1) does not indicate anything more than a speculative prospect of future harm and (2) does not include sufficient information from which a reasonable jury could find that the potential harm at issue rises to the level of a serious endangerment. Hence, SAPS has failed to raise a material issue of fact as to whether lead contamination at Metacon’s site “may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B). Accordingly, the district court’s grant of summary judgment to Metacon on SAPS’s RCRA “imminent and substantial endangerment” claim is affirmed. III. CWA A. Statutory Background The objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The CWA “is the principal legislative source of the EPA’s authority — and responsibility — to abate and control water pollution.” Waterkeeper Alliance, Inc. v. EPA 399 F.3d 486, 491 (2d Cir.2005). The CWA “formally prohibits the ‘discharge of a pollutant’ by ‘any person’ from any ‘point source’ to navigable waters except when authorized by a permit issued under the National Pollutant Discharge Elimination System (‘NPDES’).” Id.; see also 33 U.S.C. §§ 1311(a), 1342. SAPS claims that Meta-con is discharging pollutants without the required NPDES permit. The CWA provision at issue here, 33 U.S.C. § 1311(a), provides that “the discharge of any pollutant by any person shall be unlawful,” “[ejxcept as in compliance” with other provisions of the statute, including the NPDES permit requirement in 33 U.S.C. § 1342. The key phrase “discharge of any pollutant” is “defined broadly,” Rapanos v. United States, 547 U.S. 715, 723, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), to mean “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). “ ‘[P]ollutant’ is defined to include not only traditional contaminants but also solids such as ‘dredged soil, ... rock, sand, [and] cellar dirt,’ ” Rapanos, 547 U.S. at 723, 126 S.Ct. 2208 (quoting 33 U.S.C. § 1362(6) (second alteration in original)), as well as munitions. The term “point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, [or] rolling stock ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). The term “navigable waters” means “the waters of the United States, including the territorial seas.” Id. § 1362(7). The district court granted summary judgment to Metacon on the ground that SAPS failed to provide sufficient evidence that Metacon is discharging lead into “navigable waters,” i.e., jurisdictional wetlands, under the standard set forth in Rapanos. Simsbury-Avon Pres. Soc’y, LLC, v. Metacon Gun Club, Inc., 472 F.Supp.2d 219, 229-3 (D.Conn.2007). On appeal, Meta-con argues for affirmance, inter alia, on the alternative ground that SAPS has failed to provide sufficient evidence to create a material issue of fact as to whether the pollutant in this case, i.e., lead munitions, is discharged into navigable waters from a “point source.” See 33 U.S.C. § 1362(12) (“The term ‘discharge of a pollutant’ ... means ... any addition of any pollutant to navigable waters from any point source.”). SAPS responds that there is sufficient evidence for a reasonable jury to conclude that both the shooting range and the berm are point sources that discharge lead into navigable waters. We need not pass on the issue whether wetlands on the Metacon site are jurisdictional under Rapanos. Instead, we affirm on the ground that, even assuming the presence of jurisdictional wetlands, SAPS has failed to adduce sufficient evidence to raise a material issue of fact as to whether Meta-con discharges lead into such wetlands from a point source. B. Navigable Waters Though we need not decide whether wetlands on the Metacon site are jurisdictional wetlands pursuant to the Rapanos test, some analysis regarding the location of any wetlands on the site is necessary to address the “point source” question. SAPS provides evidence of lead contamination based on samples drawn from three locations on the Metacon site: (1) soil between the shooting range firing line and the berm; (2) soil in the berm; and (3) wetland sediment and surface water within fifty feet of the berm, to the north and east. For discharges into these locations to constitute CWA violations, the locations must constitute “navigable waters.” Navigable waters in the CWA are defined as “the waters of the United States.” 18 U.S.C. § 1362(7). The EPA and the United States Army Corps of Engineers (“Corps”) have issued substantially equivalent regulations defining “waters of the United States.” See 40 C.F.R. § 230.3(s) (EPA definition); 33 C.F.R. § 328.3(a) (Corps definition). These waters encompass traditionally navigable waterways, including, inter alia, “[a]ll waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce,” and their “[tributaries.” 40 C.F.R. § 230.3(s)(l), (5). Waters also include “[w]etlands adjacent to [jurisdictional] waters (other than waters that are themselves wetlands),” id. § 230.3(7), provided that these wetlands “are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.” Id. § 230.3(t). The Corps’ 1987 Wetland Delineation Manual interprets this definition of wetlands to require: (1) prevalence of plant species typically adapted to saturated soil conditions, determined in accordance with the United States Fish and Wildlife Service’s National List of Plant Species that Occur in Wetlands; (2) hydric soil, meaning soil that is saturated, flooded, or ponded for sufficient time during the growing season to become anaerobic, or lacking in oxygen, in the upper part; and (3) wetland hydrology, a term generally requiring continuous inundation or saturation to the surface during at least five percent of the growing season in most years. Rapanos, 547 U.S. at 761, 126 S.Ct. 2208 (Kennedy, J., concurring); see also United States v. Banks, 115 F.3d 916, 920 (11th Cir.1997) (“A ‘wetland’ under the CWA must meet the three criteria set out in the Corps’ 1987 Wetlands Delineation Manual: (1) a prevalence of hydrophytic plants, (2) hydrological conditions suited to such plants, and (3) the presence of hydric soils.”); United States v. Malibu Beach, Inc., 711 F.Supp. 1301, 1307 (D.N.J.1989) (“Several courts have recognized the three-parameter approach as an appropriate method to determine whether an area is a wetland.”). Metacon argues that neither the berm nor the shooting range constitute wetlands under this definition. Appellees’ Supp. Br. 3. After a careful review of the record, we conclude that while SAPS has proffered limited evidence that some portion of the shooting range may be wetlands, it has failed to raise a material issue of fact as to whether the berm or the entire shooting range constitutes a jurisdictional wetland under the CWA. As to the berm itself, SAPS does not seriously contend, and the record does not demonstrate, that the berm is a jurisdictional wetland. There is evidence that when Metacon expanded its berm in 1990, it needed a permit because Metacon filled a portion of the shooting range that was wetland. But this is insufficient to render the berm a wetland. The “Project Description” of Metacon’s permit for filling wetlands states: “Placement of approximately 970 cubic yards of clean fill material in approximately .03 acres of wetland to expand an existing berm on the property of the Metacon Gun Club.” J.A. at 467. The permit further indicates that “0.03 of an acre of wetland is proposed to be filled” for the project. Id. at 471. Although this indicates that the berm occupies at least some land that formerly constituted wetland, that land has since been filled. The Corps has interpreted the regulatory definition of “wetland” to mean that there is no CWA “jurisdiction over those areas that once were wetlands and part of an aquatic system, but which, in the past, have been transformed into dry land for various purposes.” Army Corps of Eng’rs Regulatory Guidance Letter No. 86-9 (Aug. 27, 1986) (“Clarification of ‘Normal Circumstances’ in the Wetland Definition”), reprinted in William Want, Law of Wetlands Regulation app. 8 (updated May 2009). Furthermore, “an agency’s interpretations [of its own regulations] are ... entitled to deference and are controlling unless plainly erroneous or inconsistent with the regulation,” Linares Huarcaya, 550 F.3d at 229, which is clearly not the case here. Thus, the fact that the berm was expanded onto land constituting a wetland by filling the wetland does not make the berm itself a wetland. As to the shooting range, SAPS also lacks sufficient evidence to create a triable issue of fact with respect to the contention that the entire shooting range constitutes a wetland. SAPS points to a 1989 letter from the Connecticut Conservation Commission Inland Wetlands and Watercourses Agency stating that the “entire site contains wetlands soils.” J.A. at 456. But this says nothing about the presence of “plant species typically adapted to saturated soil conditions” and “wetland hydrology.” Rapanos, 547 U.S. at 761, 126 S.Ct. 2208 (Kennedy, J., concurring). The presence of “wetland soils” does not necessarily indicate the presence of a jurisdictional wetland. See 40 C.F.R. § 230.3(t). Next, SAPS points to the AEI report which, if anything, indicates that the firing range is not a wetland. AEI’s “Site Description” indicates that SAPS “informed AEI that the grass-covered site slopes to the east towards extensive wetlands” and that “[wjetlands with standing water were observed north and east of the backstop/berm.” J.A. at 633-34. In other words, the report suggests that the range is bordered by wetlands but is not itself a wetland. Finally, SAPS points to its Local Rule 56(a) Statement of Facts, and accompanying citations, for the proposition that “the entire Metacon site includes wetlands soils.” Id. at 402. But again, the presence of wetlands soils is, standing alone, insufficient to establish a jurisdictional wetland. See Rapanos, 547 U.S. at 761, 126 S.Ct. 2208 (Kennedy, J., concurring). Moreover, the record provides evidence indicating that the shooting range is not a wetland. Metacon’s Environmental Stewardship Plan, which SAPS relies on, Appellants’ Br. 4, states that “wetlands border the range immediately to the North and extend East beyond the berm for approximately 100 yards.” J.A. at 211 (emphasis added). It further provides that “[t]he range surface is mowed grass,” which “makes recovery of lead particles difficult without destroying the grass cover.” Id. at 211, 213. SAPS does not contest these claims, which are consistent with photos provided by Metacon’s president. Id. at 581-86. While we conclude as a matter of law that, on the record before us, neither the berm nor the entire shooting range constitute jurisdictional wetlands, we proceed on the assumption that (1) the area bordering the shooting range to the north and east and (2) unspecified portions of the shooting range itself constitute such wetlands. Because we also conclude that there is insufficient evidence of a point source discharge into these areas, however, see infra at § III.C.2, it is not necessary to determine whether SAPS has provided sufficient evidence to reach a jury on this issue. C. Discharge of Pollutants Into Navigable Waters From a Point Source 1. Point Source Versus Nonpoint Source Pollution Having concluded that there is insufficient evidence to raise a triable issue of fact as to whether the berm and entire shooting range lawn are jurisdictional wetlands, and assuming arguendo that (1) the area bordering the range to the north and east and (2) unspecified parts of the shooting range lawn constitute jurisdictional wetlands, and hence “navigable waters” for purposes of the CWA, the question is whether SAPS has provided sufficient evidence to create a material issue of fact as to whether Metacon is discharging lead munitions into these jurisdictional wetlands from a point source. See 33 U.S.C. § 1362(12) (“The term ‘discharge of a pollutant’ ... means ... any addition of any pollutant to navigable waters from any point source.”). SAPS contends that there are two point sources on the Metacon site: the shooting range and the berm. Meta-con responds that there is insufficient evidence that either the shooting range or the berm is a point source under the CWA. Our construction of the CWA “begins with [the] statutory text and its plain meaning.” Bonime v. Avaya, Inc., 547 F.3d 497, 503 (2d. Cir.2008). When considering the text, we must also “keep in mind context and the structure of the statute as a whole.” Nussle v. Willette, 224 F.3d 95, 101 (2d Cir.2000), rev’d on other grounds, Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); see also Bailey v. United, States, 516 U.S. 137, 145, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (“[T]he meaning of statutory language, plain or not, depends on context.” (internal quotation marks and citation omitted)); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988) (assessment of plain meaning must also look to “language and design of the statute as a whole”). The CWA defines “point source” as any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture. 33 U.S.C. § 1362(14). We have said that the “definition of a point source is to be broadly interpreted,” and further: The touchstone of the regulatory scheme is that those needing to use the waters for waste distribution must seek and obtain a permit to discharge that waste, with the quantity and quality of the discharge regulated. The concept of a point source was designed to further this scheme by embracing the broadest possible definition of any identifiable conveyance from which pollutants might enter waters of the United States. Dague, 935 F.2d at 1354-55 (quoting United States v. Earth Scis., Inc., 599 F.2d 368, 373 (10th Cir.1979)); see also Concerned Area Residents for the Env’t v. Southview Farm, 34 F.3d 114, 118 (2d Cir.1994) (“[T]he definition of a point source is to be broadly interpreted.”). We have also made clear, however, that the phrase “discernible, confined, and discrete conveyance” cannot be interpreted so broadly as to read the point source requirement out of the statute. For example, we have held that whether a human being who discards vials of blood into the Hudson River constitutes a point source for purposes of § 1362(14) is at best ambiguous, so that a criminal conviction obtained on such a theory is inconsistent with the rule of lenity. See United States v. Plaza Health Labs., Inc., 3 F.3d 643, 646 (2d Cir.1993). In Plaza Health Labs., we explained: [I]f every discharge involving humans were to be considered a “discharge from a point source[,]” the statute’s lengthy definition of “point source” would have been unnecessary. It is elemental that congress does not add unnecessary words to statutes. Had congress intended to punish any human being who polluted navigational waters, it could readily have said: “any person who places pollutants in navigable waters without a permit is guilty of a crime.” Id. at 646; see also id. at 647 (‘We find no suggestion either in the act itself or in the history of its passage that congress intended the CWA to impose criminal liability on an individual for the myriad, random acts of human waste disposal, for example, a passerby who flings a candy wrapper into the Hudson River, or a urinating swimmer. Discussions during the passage of the 1972 amendments indicate that congress had bigger fish to fry.”). The CWA’s structure confirms this point. Athough the term “nonpoint source” is not defined in the CWA, the statute clearly indicates that there is a category of nonpoint source pollution, and leaves the regulation of nonpoint source pollution to the states. See 33 U.S.C. § 1251(a)(7) (“[I]t is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this chapter to be met through the control of both point and nonpoint sources of pollution.”); id. § 1329 (entitled “Nonpoint source management programs”); see also Frank P. Grad, Treatise on Environmental Law § 3.03 (updated 2009) (“The regulatory structure under the Clean Water Act emphasizes the distinction between ‘point sources’ and ‘nonpoint sources.’ Unlike point sources, nonpoint sources are not subject to the National Pollutant Discharge Elimination System (NPDES), under which the discharge of pollutants into the waters of the United States without permit is illegal. Control of nonpoint sources continues to be primarily a state function, with indirect federal participation.”); Plaza Health Labs., 3 F.3d at 647 (stating that authority over “control of pollutants from runoff ... resides in the State or ... local agency”) (quoting S.Rep. No. 92-414, at 3744 (1971)); id. at 653 (Oakes, J., dissenting) (“The structure of the statute- — which regulates point source pollution closely, while leaving nonpoint source regulation to the states under the Section 208 program— indicates that the term ‘point source’ was included in the definition of discharge so as to ensure that nonpoint source pollution would not be covered.”); Appalachian Power Co. v. Train, 545 F.2d 1351, 1373 (4th Cir.1976) (“Congress consciously distinguished between point source and non-point source discharges, giving EPA authority under the Act to regulate only the former.”). In Natural Resources Defense Council, Inc. v. Muszynski, 268 F.3d 91, 94 (2d Cir.2001), this Court cited Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir.1984), for its definition of a nonpoint source: “Congress had classified nonpoint source pollution as runoff caused primarily by rainfall around activities that employ or create pollutants. Such runoff could not be traced to any identifiable point of discharge.” Trustees for Alaska, 749 F.2d at 558; see also Plaza Health Labs., 3 F.3d at 652 (Oakes, J., dissenting) (“Nonpoint source pollution is, generally, runoff: salt from roads, agricultural chemicals from farmlands, oil from parking lots, and other substances washed by rain, in diffuse patterns, over the land and into navigable waters.”); Frank P. Grad, Treatise on Environmental Law § 3.03 (updated 2009) (“Nonpoint sources include pollution from diffuse land use activities such as agriculture, construction and mining that enter the waters primarily through indiscrete and less identifiable natural processes such as runoffs, precipitation and percolation.”). We also stated that “nonpoint sources ... can consist of, for example, runoff due to the agricultural use of land adjoining a river.” Natural Res. Def. Council, Inc., 268 F,3d at 94; see also 33 U.S.C. § 1362(14) (stating that the term point source “does not include- agricultural stormwater discharges.”). This is consistent with the EPA’s guidance on nonpoint source pollution: [Nonpoint source pollution] is caused by diffuse sources that are not regulated as point sources and normally is associated with agricultural, silvicultural and urban runoff, runoff from construction activities, etc. Such pollution results in the human-made or human-induced alteration of the chemical, physical, biological, and radiological integrity of water. In practical terms, nonpoint source pollution does not result from a discharge at a specific, single location (such as a single pipe) but generally results from land runoff, precipitation, atmospheric deposition, or percolation. EPA Office of Water, Nonpoint Source Guidance 3 (1987); see also Nonpoint Source Program and Grants Guidelines for States and Territories, 68 Fed.Reg. 60653, 60655 (2003) (“Nonpoint source pollution is caused by rainfall or snowmelt moving over and through the ground and carrying natural and human-made pollutants into lakes, rivers, streams, wetlands, estuaries, other coastal waters, and ground water.”); EPA Office of Water, Polluted 5 (1994) (EPA Doc. No. 841-F-94-005) (“Nonpoint Source pollution is caused by rainfall or snowmelt moving over and through the ground. As the runoff moves, it picks up and carries away natural and human-made pollutants, finally depositing them into lakes, rivers, wetlands, coastal waters, and even our underground sources of drinking water.”). The EPA’s NPDES regulations define the extent to which surface runoff can in certain circumstances constitute point source pollution. The definition of “Discharge of a pollutant” includes “additions of pollutants into waters of the United States from: surface runoff which is collected or channelled by man.” 40 C.F.R. § 122.2 (emphasis added). By implication, surface water runoff which is neither collected nor channeled constitutes nonpoint source pollution and consequentially is not subject to the CWA permit requirement. See Hardy v. N.Y. City Health & Hosps. Corp., 164 F.3d 789, 794 (2d Cir.1999) (relying on “the familiar principle of expressio unius est exclusio alterius, the mention of one thing implies the exclusion of the other”). We accord the EPA’s regulation Chevron deference. See Estate of Landers v. Leavitt, 545 F.3d 98, 106 (2d Cir.2008) (“Most agency interpretations that have qualified for Chevron deference are rules that have been promulgated in regulations issued through notice and comment or adjudication, or in another format authorized by Congress for use in issuing ‘legislative’ rules.” (internal quotation marks omitted)). At Chevron step one, we consider whether Congress has clearly spoken to the issue of when surface runoff can constitute a point source discharge. See Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 116 (2d Cir.2007). Given that nonpoint source pollution is not defined in the statute and a point source is merely defined as “any discernible, confined and discrete conveyance,” we find that it has not. If we “cannot conclude that Congress has ‘directly addressed the precise question at issue,’ we will proceed to Chevron step two, which instructs us to defer to an agency’s interpretation of the statute, so long as it is ‘reasonable.’ ” Cohen, 498 F.3d at 116. Limiting the scope of the term point source to surface runoff that is collected or channeled by human beings is consistent with the CWA’s definition of point sources as discernible, confined and discrete conveyances, such as “any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, [or] container,” 33 U.S.C. § 1362(14), and hence is reasonable. Moreover, our case law is in accord with the EPA’s regulations. We have indicated that “[t]o be sure, the [CWA] does generally contemplate that discharges be ‘channelized’ in order to fall within the EPA’s regulatory jurisdiction; that is why the term ‘point source’ is defined as ‘discrete, discernable, conveyances.’ ” Waterkeeper Alliance, Inc., 399 F.3d at 510. Other Circuits have specifically held that “[b]road though [the] definition [of point source] may be, we are of [the] opinion that it does not include unchanneled and uncollected surface waters.” Appalachian Power Co., 545 F.2d at 1373; see also Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 842 n. 8 (9th Cir.2003) (“Diffuse runoff, such as rainwater that is not channeled through a point source, is considered non-point source pollution and is not subject to federal regulation.”); Shanty Town Assocs. LP v. EPA 843 F.2d 782, 785 n. 2 (4th Cir.1988) (stating that the definition of a point source “excludes unchanneled and uncollected surface runoff, which is referred to as ‘nonpoint source’ pollution”); Sierra Club v. Abston Constr. Co., Inc., 620 F.2d 41, 47 (5th Cir.1980) (“Although the point source definition excludes unchanneled and uncollected surface waters, surface runoff from rainfall, when collected or channeled by coal miners in connection with mining activities, constitutes point source pollution.” (citations and internal quotation marks omitted)); cf. Robin Kundis Craig, Local or National? The Increasing Federalization of Nonpoint Source Pollution Regulation, 15 J. Envtl. L. & Litig. 179, 191 (2000) (“Although storm water runoff is generally a nonpoint source of water pollution, Congress recognized in 1987 that much storm water is actually collected and channeled before reaching waterways, such as in city drain systems. The 1987 [storm water permitting] amendments explicitly extended the federal NPDES permit program for point sources to cover municipal and industrial discharges of storm water.”). 2. SAPS’s Evidence With the distinction between point source and nonpoint source pollution in mind, we turn to SAPS’s evidence of point source discharges on Metacon’s site. We conclude that SAPS has not provided sufficient evidence to raise a material issue of fact as to whether (1) the berm is a point source, and (2) assuming arguendo that the firing line of the shooting range is a point source, lead is discharged into jurisdictional wetlands from the firing line. a. The Berm SAPS first argues that the berm leaches lead into jurisdictional waters, and is therefore a point source which discharges pollutants into navigable waters. However, there is insufficient evidence in the record to support this claim. The LBG report, as noted previously, concludes that ground water beneath the shooting range “has not been impacted by lead from the ... range” and, regarding wetland surface water, that “lead is not leaching out of the soil or surface water” to contaminate surrounding waters. J.A. at 266. The AEI report does not disagree. It indicates that tests were performed on certain soil samples taken from the berm and that these samples exceeded the CTDEP’s Pollutant Mobility Criteria (“PMC”) — its RSR for assessing, among other things, the capacity of pollutants potentially to leach. The report concludes based on this testing that “the lead is leachable and may over time pose a threat to ground water quality,” id. at 643, but it does not provide evidence that any actual leaching has occurred. For the reasons already articulated, the bare fact that soil samples from the Meta-con berm may exceed Connecticut’s RSR threshold for pollutant mobility is not enough, without more, to raise a material issue as to whether a serious risk of endangerment to ground water may be present, for the purpose of the RCRA. The AEI report suggests the lead is leachable but provides no information as to the likelihood of leaching or the seriousness of any risk it presents. Notably, the CTDEP itself informed Connecticut’s Attorney General on the basis of the LBG report, which analyzed ground and surface water, that “[a]ll the results indicated that lead was not detected or was present at concentrations in groundwater and surface water below action levels.” Id. at 262. For the purpose of a CWA permit violation, however, all that is necessary is an unauthorized discharge into jurisdictional waters. As we have already said, there is no evidence that lead has leached from the berm into ground water. And SAPS has similarly provided no evidence that lead has migrated from the berm to Metacon wetlands through leaching. Lead was detected in wetland soils and surface waters near the berm. The AEI report suggests that if the lead migrated from the berm, however, it was by means other than leaching — that “wetland sediments and surface water behind and adjacent to the backstop/berm” may be “receptors” for lead contamination due to surface water runoff and airborne dust. J.A. at 637. This method of contamination, however, even assuming that it takes place, does not fall within the statute. Id. For even assuming the Metacon berm may be described as a “container,” or “conduit,” the record contains no evidence that it serves as a “confined and discrete conveyance” of lead to jurisdictional wetlands by these routes. See 33 U.S.C. § 1362(14). The EPA’s NPDES regulations, which SAPS does not challenge and to which we defer, make clear that surface water runoff that is neither collected nor channeled does not constitute point source pollution. See 40 C.F.R. § 122.2; see also Natural Res. Def. Council, Inc., 268 F.3d at 94; Trustees for Alaska, 749 F.2d at 558; EPA Office of Water, Nonpoint Source Guidance 3 (1987). Even assuming rain and flooding at the Metacon site may cause lead in the berm to migrate to jurisdictional wetlands via surface water runoff, SAPS has provided no evidence that such runoff is in any way “collected or channeled by man.” 40 C.F.R. § 122.2. Thus, there is insufficient evidence that surface water runoff from the berm constitutes a discharge from a point source, and such runoff is outside the ambit of the CWA permit requirement. This Court’s precedent supports this conclusion. In Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114 (2d Cir.1994), we found that liquid manure that flowed from the field of a farm to a jurisdictional water constituted a discharge from two point sources: (1) a swale coupled with a pipe that channeled the manure and (2) manure-spreading vehicles that discharged manure onto the field. With respect to the swale, we noted that “the liquid manure was collected and channelized through the ditch or depression in the swale of field 104 and thence into the ditch leading to the stream.” Id. at 119. SAPS points to no evidence of a similar conveyance in the case at bar. With respect to the manure spreading machines, this Court held as follows: “[W]e agree with the appellants that, alternatively, the manure spreading vehicles themselves were point sources. The collection of liquid manure into tankers and their discharge on fields from which the manure directly flows into navigable waters are point source discharges under the case law.” Id. (emphasis added). Here, by contrast, there is no evidence that lead deposited into the berm directly flows into Metacon wetlands. The AEI report indicates that it does so only as part of surface water runoff, which results from rain or flooding. Moreover, unlike in Concerned Area Residents, there is no evidence that the surface water runoff from the berm containing lead is in anyway channeled or collected. We also find that lead in the berm that migrates to jurisdictional wetlands as airborne dust does not constitute a discharge from a point source. Based on the record before us, there is no evidence that airborne lead moves by any “discernible, confined and discrete conveyance,” 38 U.S.C. § 1362(14), to Metacon wetlands. The berm simply cannot be described as a “discernible, confined and discrete conveyance” with respect to lead that is carried by the wind, some portion of which may happen to land on nearby wetlands. See Waterkeeper Alliance, Inc., 399 F.3d at 510 (“[T]he [CWA] does generally contemplate that discharges be ‘channelized’ in order to fall within the EPA’s regulatory jurisdiction.”). To be clear, our holding is not that a berm can never constitute a point source, but only that there is insufficient evidence that the migration of lead from Metacon’s berm by virtue of runoff and airborne dust is a point source discharge. Cf. Or. Natural Desert Ass’n v. U.S. Forest Serv., 550 F.3d 778, 784 n. 4 (“[W]hile a dam might not always be considered a point source, the dam turbines that were the focus of the decision in S.D. Warren clearly were a point source.”). Even assuming the berm is an identifiable source from which lead pollution reaches jurisdictional wetlands— a generous assumption on the record here — this is not enough to satisfy the CWA requirement of a point source discharge. Otherwise, “a passerby who flings a candy wrapper into the Hudson River, or a urinating swimmer” would constitute point sources. Plaza Health Labs., 3 F.3d at 647. So too would “runoff due to the agricultural use of land adjoining a river,” Nat. Res. Defense Council, Inc., 268 F.3d at 94, or runoff of “salt from roads,” “oil from parking lots,” Plaza Health Labs., 3 F.3d at 652 (Oakes, J., dissenting), or pollutants “from construction activities.” EPA Office of Water, Nonpoint Source Guidance 3 (1987). But these are paradigmatic examples of nonpoint source pollution. Both the CWA’s definition of a point source and the CWA’s structure, which leaves the regulation of nonpoint source pollution to the states, make clear that Congress chose to exempt a class of pollution from the CWA’s permit requirement. To find that SAPS has presented sufficient evidence that the berm constitutes a point source on the undeveloped record before us would imply that runoff or windblown pollutants from any identifiable source, whether channeled or not, are subject to the CWA permit requirement. Such a construction would eviscerate the point source requirement and undo Congress’s choice. The CWA’s broad remedial purpose, i.e., to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), cannot override the plain text and structure of the statute. See Plaza Health Labs., 3 F.3d at 647. In sum, a point source discharge requires that pollutants reach navigable waters by a “discernible, confined and discrete conveyance” and the AEI report’s vague references to potential surface water runoff and windblown dust from the berm are insufficient to raise a material issue of fact that these are point source discharges. b. The Firing Line SAPS also argues that the firing line from which Metacon members shoot constitutes a point source. We need not reach the issue, however. Assuming arguendo that the firing line of the shooting range constitutes a point source, SAPS has failed to adduce sufficient evidence that lead shot is discharged from the firing line into jurisdictional wetlands. SAPS does not contend that bullets from the firing line are discharged into the wetlands located on the northern and eastern borders of the range — the area that Metacon itself admits to be wetlands. Appellants’ Br. 19-20; Appellants’ Reply Br. 14-16. In any event, there is insufficient evidence in the record that this occurs. While bullets are discharged into the berm, as explained above, the berm does not constitute a jurisdictional wetland. This leaves the possibility that bullets are discharged from the firing line into unspecified jurisdictional wetlands on the shooting range itself. Metacon indicates that, in addition to the berm, lead bullets are also discharged into “[t]arget lines ... downrange at 10,25, 50, 75 and 100 yards.” J.A. at 211. SAPS has introduced evidence that certain samples drawn from locations between the firing line and the berm had intermediate concentrations of lead as compared to samples drawn from the berm, where the lead concentrations were highest, and the firing line, which had the lowest levels of concentration. Id. at 642. Not surprisingly, the highest concentrations of lead in locations between the firing line and the berm were detected adjacent to the target holders. Id. Although this evidence suggests lead is discharged into the shooting range lawn from the firing line, with higher concentrations of lead accumulating near the targets, SAPS has provided no evidence that the targets are positioned on or near jurisdictional wetlands. Moreover, SAPS has provided no evidence that soil samples drawn from the shooting range lawn, and indicating elevated levels of lead, were drawn from or near jurisdictional wetlands. Even assuming the presence of jurisdictional wetlands somewhere on the shooting range, there is no evidence that lead is discharged into those areas, and hence there is an insufficient basis for a reasonable jury to draw an inference that lead is discharged from the firing line into jurisdictional wetlands on the range. To summarize, SAPS has failed to provide sufficient evidence to raise a triable issue of fact as to whether (1) any lead that may reach jurisdictional wetlands from the berm results from a “point source” discharge; and (2) lead that is discharged from the firing line constitutes a discharge into jurisdictional wetlands. Accordingly, SAPS has not marshaled sufficient evidence to warrant a jury trial on an essential element of its CWA claim, i.e., that Metacon discharges lead munitions into “navigable waters from any point source.” 33 U.S.C. § 1362(12). The district court’s grant of summary judgment to Metacon on that claim is affirmed. IV. Conclusion For the above reasons, the judgment of the district court in favor of Metacon is AFFIRMED. . Although SAPS’s appellate brief also states that SAPS "claims that the Gun Club has engaged in open dumping of a hazardous waste in violation of RCRA, 42 U.S.C. § 6945,” Appellants' Br. 12, this is SAPS’s only mention of an open dumping claim. SAPS fails even to reference the federal regulations regarding "open dumping” in violation of 42 U.S.C. § 6945(a). See 40 C.F.R. § 257.1(a). Thus, we consider SAPS's open dumping claim to be abandoned. See United States v. Joyner, 313 F.3d 40, 44 (2d Cir.2002) ("It is well established that an argument not raised on appeal is deemed abandoned and lost, and that a court of appeals will not consider the argument unless it has reason to believe that manifest injustice would result otherwise.” (internal quotation marks omitted)); Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”). . The RSRs are also relevant to claims brought under the Connecticut Environmental Protection Act ("CEPA”), Conn. Gen.Stat. § 22a-14 et seq., which authorizes citizens to sue for declaratory and injunctive relief from "unreasonable pollution, impairment or destruction” of "the air, water and other natural resources of the state.” Conn. Gen.Stat. § 22a-16; see also Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 509, 815 A.2d 1188 (2003). There is authority for the proposition that the release of contaminants above the RSR thresholds constitutes prima facie evidence of unreasonable pollution under the CEPA. See Durham Mfg. Co. v. Merriam Mfg. Co., 294 F.Supp.2d 251, 271 (D.Conn.2003); 50 Day Str. Assocs. v. Norwalk Hous. Auth., No. X08 Civ. 020191396S, 2005 WL 1394772, at *11 (Conn.Super.Ct. May 17, 2005). Notably, however, SAPS brought a CEPA claim against Metacon, relying in part on the AEI evaluation, and failed to establish a prima facie case. See Simsbury-Avon Pres. Soc’y, LLC v. Town of Simsbury, No. X01 Civ. 044001892S, 2008 WL 853625, at *9 (Conn.Super.Ct. March 13, 2008) ("Overall, the plaintiff has provided scant evidence in support of its claim that Metacon has unreasonably polluted a natural resource of the state by operating its shooting range. Its evidence might suggest the need for more sampling and testing, but at this stage it is insufficient to construct a prima facie case.”); id. at *8 (finding that SAPS "has not explained why the RSRs should apply to Meta-con in the first place,” and "[e]ven if the RSRs do apply to Metacon, it is unclear whether the residential or industrial/commercial RSRs should apply to soil samples taken from the property”). . The AEI report also indicates that unfiltered samples drawn from wetland surface water behind the berm exceed Connecticut’s acute aquatic life criterion. In specified circumstances, Connecticut law imposes a requirement that the CTDEP be notified when this criterion is exceeded and ground water has been contaminated. See Conn. Gen.Stat. § 22a-6u(g)(l). The AEI report, however, provides no evidence of ground water contamination nor does it otherwise explain the significance of its finding regarding surface water samples, noting that while ''[wjildlife exposure would[,] ... be expected to occur via direct contact with or ingestion of affected wetland surface water ... [t]he degree of potential exposure cannot be assessed herein.” J.A. at 645. Since SAPS does not even mention the aquatic life criterion in its RCRA briefing, moreover, any argument that a material issue exists by virtue of this criterion having been exceeded has not been preserved for our review. Norton, 145 F.3d at 117. . The Corps’ 1987 Wetlands Delineation Manual states that it "only provides a basis for determining whether a given area is wetland for purposes of Section 404” of the CWA, J.A. at 495, under which the Corps issues permits for the discharge of dredged or fill material. See 33 U.S.C. § 1344. Because the EPA regulations use the same definition of wetland, however, the Corps’ 1987 Wetlands Delineation Manual is helpful in identifying wetlands subject to the NPDES permit requirement. . SAPS provides at least some evidence that these areas constitute jurisdictional wetlands. With respect to unspecific portions of the shooting range, Metacon’s 1990 Corps permit for the expansion of the berm provides as follows: "The firing range consists of the firing line, a mowed field (a portion of which is wetland) and a berm to stop bullets.” J.A. at 471 (emphasis added). The Corps Regulatory Guidance Letter No. 05-02 states that ”[w]ritten wetland delineations made prior to 14 August 1990 ... with a specified time limit imposed by the Corps, will be valid until the date specified.” Army Corps of Eng'rs Regulatory Guidance Letter No. 05-02 (June 14, 2005) ("Expiration of Geographic Jurisdictional Determinations of Waters of the United States”), reprinted in William Want, Law of Wetlands Regulation app. 8 (updated May 2009). Metacon’s 1990 permit expired in 1995, meaning that the wetlands delineation underlying the permit was valid up until nine years before the present lawsuit was filed in 2004. With respect to the northern and eastern borders of the range, Metacon’s Environmental Stewardship Plan concedes that “[a] vernal pond is located directly in back of the backstop berm, and wetlands border the range immediately to the North and extend East beyond the berm for approximately 100 yards.” J.A. at 211. Metacon's LBG report indicates that samples were "taken in the wetland area directly behind, or to the east of, the earthen berm,” and these samples were of "surface water in the wetland.” Id. at 266. Further, the president of Metacon refers to the 1990 Corps permit in a document attached to a 2006 affidavit, which states: "Metacon applied for an Army Corps Permit since there is a federal wetland located behind the berm, to the east of the shooting range.” Id. at 587 (emphasis added). . We thus need not address whether the CWA applies to ground water contamination, though there is authority that it does not. See Rice v. Harken Exploration Co., 250 F.3d 264, 269 (5th Cir.2001) ("The law in this Circuit is clear that ground waters are not protected waters under the CWA.”); Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir.1994) ("[T]he Clean Water Act [does not] assert[] authority over ground waters.”). . This case is thus unlike Sierra Club v. Abston Constr. Co., Inc., 620 F.2d 41 (5th Cir.1980), in which the Fifth Circuit found a material issue of fact with respect to whether surface runoff was collected or channeled in connection with coal mining activities. The Fifth Circuit pointed to an affidavit in the record noting both "gullies and ditches running down the sides of steep spoil piles created by Abston Construction Company” and that "sedimentation and pollutants are carried through these discernible, confined and discrete conveyances to Daniel Creek.” Id. at 46. No such evidence is present here.

United States v. Bailey

WOLLMAN, Circuit Judge. Gary Bailey constructed a road on a parcel of wetlands in Lake of the Woods County (County), Minnesota, without obtaining a permit under Section 404 of the Clean Water Act (Act). The United States Army Corps of Engineers (Corps) ordered Bailey to restore the land to its previolation condition. Bailey refused, and the United States brought an action under Section 309(b) of the Act to enforce the restoration order and to enjoin Bailey from discharging further pollutants into the wetland. Bailey counterclaimed against the United States, alleging that the Corps did not have jurisdiction over his parcel of land and that its restoration order was arbitrary and capricious. Bailey sued the County in a third-party complaint, alleging that the County should pay to restore the land. All parties moved for summary judgment. In a most comprehensive, thorough opinion (from which we have borrowed extensively), the district court granted in part the United States’s motion for summary judgment, finding that the Corps properly asserted jurisdiction under the Act and that its restoration order met the requirements of United States v. Sexton Cove Estates, Inc., 526 F.2d 1293 (5th Cir.1976). United States v. Bailey, 516 F.Supp.2d 998 (D.Minn.2007). The district court dismissed Bailey’s counterclaim against the United States and his third-party complaint against the County. Id. The district court subsequently issued a final injunction, ordering Bailey to restore the wetland at his own expense to its previolation condition. United States v. Bailey, 556 F.Supp.2d 977 (D.Minn.2008). Bailey appeals, contending that the district court erred in concluding that the Corps has jurisdiction over his property, in granting summary judgment in favor of the United States, and in entering an injunction to enforce the restoration order. He also argues that the restoration order is arbitrary and capricious. We affirm. I. Factual Background Bailey owns a parcel of land along the western shore of the Lake of the Woods (Lake), which is located in northern Minnesota. At issue in this lawsuit is a thirteen-acre site that consists of approximately twelve acres of wetland, as defined by the Corps. In the early 1990s, Bailey considered developing the site and received a general permit from the Corps to excavate a harbor. The permit, however, excluded fills for commercial development or residential housing. In 1993, the Corps advised Bailey that the intended harbor was located on wetland and informed him that he would need additional permits to place dredged or fill material on the site. In 1994, after Bailey and a Corps official visited the site, the Corps suggested that Bailey hire a consultant “to help you delineate this highly diverse site and prepare the required application that was previously provided to you.” The harbor project was eventually abandoned. Bailey decided to plat the site for residential development and sell the lakeside property. The development was named Sunny Beach and consisted of fourteen lots, each having approximately 100 feet of lakefront. In 1998, Bailey hired Mark LaValla to build a road through the site to provide access to the lots. Bailey did not seek any permits from the Corps before LaValla began constructing the road. LaValla cleared a roadway sixty-six feet wide and about a quarter of a mile long, running parallel to the Lake’s shoreline. LaValla dug ditches on either side of the road and used the excavated material to build up the road. Before the road was complete, on June 11, 1998, employees of the local Soil and Water Conservation District visited the site and told LaValla that the road construction was not properly permitted and that he should stop construction, which he did. On June 15, 1998, a Corps employee visited the site with Bailey and several employees from the County and the Soil and Water Conservation District and instructed Bailey to do no more work on the road. About a week later, a representative from the Environmental Protection Agency (EPA) told Bailey that the EPA would not pursue an enforcement action if Bailey stopped all work on the road until he obtained a proper permit. On June 17, 1998, Bailey filed a Local-State-Federal Project Notification Form with the County wherein he proposed building an access road for logging on the site. Bailey believed that his application would be accepted, and he alleges that an official from the Soil and Water Conservation District told him that the Corps would approve the permit and that he should finish the road. Without waiting for a decision on his application, Bailey instructed LaValla to finish work on the access road. LaValla completed the road, topping the roadbed with 2000 square yards of gravel. The Corps received a copy of Bailey’s notification form on August 17, 1998, and treated it as an after-the-fact application for a permit under Section 404 of the Act. On September 17,1998, after the road was complete, the Corps notified Bailey in writing that the work was done in violation of the Act, that his permit was incomplete, that no additional work should be done on the road without a permit, and that if his permit was ultimately denied, he would be required to restore the land to its previous condition. Bailey intended to dedicate the road to the County so that the road would become public and be maintained by the County. Accordingly, the road had to be built to meet the County’s road specifications. Bailey requested that the road be inspected, and by letter dated September 16, 1998, the County’s highway engineer informed Bailey of his inspection and of certain improvements that were required to bring the road into compliance with County road standards. The highway engineer sent a second letter in November 1998, detailing specific recommendations and requiring that a $10,000 bond be posted to ensure that the road met County standards. In the spring of 1999, Bailey hired LaValla to complete the improvements, which included adding approximately 530 square yards of gravel to the road and replacing the culverts with new pipe. LaValla completed the work on the road that summer. While the road was being completed, Bailey was also preparing to plat the site. In October 1998, shortly after he received the notice of violation from the Corps, Bailey filed an application with the County to plat fourteen residential lots on the site. The County’s environmental services director recommended the approval of the Sunny Beach plat, and the County’s board of commissioners approved the plat on December 22, 1998. Upon approval of the plat, the road became a public road, although the County disputes the nature and extent of its property rights. On June 12, 2001, the Corps denied Bailey’s Section 404 permit application. On October 22, 2001, after a period of public notice and comment, the Corps ordered Bailey to restore the property at his own expense. The restoration order required Bailey to (1) remove the dredged and fill material used in construction of the road; (2) fill in the ditches with native, loamy soils; (3) seed the restored area with a specified seed mixture; and (4) control certain weed species for three years following restoration. Bailey refused to comply with the restoration order, and the United States brought this enforcement action. Summary judgment was granted in favor of the United States, and Bailey was ordered to submit a proposed restoration plan. Bailey, 516 F.Supp.2d at 1021. After an unsuccessful appeal to this court, Bailey submitted a proposed plan. The United States objected and submitted its own proposed plan. The district court ordered Bailey to restore the site at his own expense to its previolation condition in compliance with the restoration order the Corps issued on October 22, 2001. Bailey, 556 F.Supp.2d at 983-84. II. Issues on Appeal Bailey raises the following arguments on appeal: (1) that the district court erred in applying Justice Kennedy’s opinion in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), to determine whether the Corps had jurisdiction over the site and that even if Justice Kennedy’s opinion controls, the Corps has failed to show that the wetland has a significant nexus to or is adjacent to the Lake of the Woods; (2) that the Corps’ denial of the after-the-fact permit and its restoration order are arbitrary and capricious; and (3) that the district court abused its discretion when it approved the restoration plan. A. Summary Judgment and the Corps’ Jurisdiction under the Act Congress enacted the Clean Water Act in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. The Act prohibits the discharge of any pollutant from any point source into navigable waters of the United States without a proper permit from the Secretary of the Army (through the Corps) or from the EPA. § § 1311, 1342, 1344. The Corps and the EPA share responsibility for implementing and enforcing the Act’s permit scheme for the discharge of pollutants into navigable waters, and the extent of the Corps’ jurisdiction has been hotly contested in cases around the country. Bailey concedes that the gravel and fill he placed on the site to build the road constitute pollutants and that those pollutants were discharged from a point source. Bailey also concedes that he did not obtain a permit from the Corps. Bailey challenges the Corps’ assertion of jurisdiction over the site, arguing that the land onto which he discharged the pollutants did not constitute “navigable waters” under the Act. The Act defines navigable waters as “the waters of the United States, including the territorial seas.” § 1362(7). The regulations promulgated by the Corps define navigable waters as “navigable-in-fact” or “traditionally navigable” waters and the wetlands adjacent to such waters. 33 C.F.R. § 328.3(a). 1. The Supreme Court’s Opinions in Rapemos v. United States In Rapanos v. United States, the Supreme Court addressed how the term “navigable waters” should be construed under the Act and the extent to which the term includes wetlands. All members of the Court agreed that “navigable waters” encompassed something more than traditional navigable-in-fact waters. 547 U.S. at 730-31, 126 S.Ct. 2208 (plurality opinion); 767, 126 S.Ct. 2208 (Kennedy, J., concurring); 788, 126 S.Ct. 2208 (Stevens, J., dissenting). There was no majority opinion, with five justices concluding that remand was necessary for consideration of whether the wetlands at issue in Rapanos were “navigable waters” covered by the Act and whether the EPA and the Corps had impermissibly extended their regulatory jurisdiction under the Act. Justice Scalia wrote the plurality opinion, joined by three other justices; Justice Kennedy wrote a concurring opinion; and Justice Stevens wrote the dissenting opinion, joined by three other justices. The plurality opinion limits federal authority over “navigable waters” to “those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.” Id. at 742, 126 S.Ct. 2208. The plurality test requires two findings: First, that the adjacent channel contains a ‘wate[r] of the United States,’ (ie., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins. Id. In his concurring opinion, Justice Kennedy rejected these two requirements as “unduly dismissive of the interests asserted by the United States in these cases” and recognized that the rationale for the Act’s regulation of wetlands is the functions that wetlands perform in relation to the integrity of other waters — “functions such as pollutant trapping, flood control, and runoff storage.” Id. at 777, 779, 126 S.Ct. 2208. Accordingly, Justice Kennedy determined that the government’s jurisdiction under the Act extends to wetlands that “possess a significant nexus to waters that are or were navigable in fact or that could reasonably be so made.” Id. at 759, 126 S.Ct. 2208 (internal quotations omitted). “[WJetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of the covered waters more readily understood as ‘navigable.’ ” Id. at 780, 126 S.Ct. 2208. A wetland would not satisfy Justice Kennedy’s test if its effect on water quality were speculative or insubstantial. Id. Justice Kennedy also concluded that if the wetland is adjacent to navigable-in-fact waters, then the Corps “may rely on adjacency to establish its jurisdiction.” Id. at 782, 126 S.Ct. 2208. The dissenters determined that to the extent the Act requires a significant nexus, the requirement “is categorically satisfied as to wetlands adjacent to navigable waters or their tributaries.” Id. at 807, 126 S.Ct. 2208. The dissent specifically noted that all four dissenters would uphold the Corps’ jurisdiction in cases that satisfy either the plurality’s test or Justice Kennedy’s. Id. at 810 n. 14, 126 S.Ct. 2208. “[I]n these and future cases, the United States may elect to prove jurisdiction under either test.” Id. 2. The Circuit Courts’ Application of Rapanos v. United States When a majority of the Supreme Court agrees only on the outcome of a case and not on the grounds for that outcome, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal quotations omitted). The Supreme Court has recognized that applying a rule of law from its fragmented decisions is often more easily said than done. Grutter v. Bollinger, 539 U.S. 306, 325, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003); Nichols v. United States, 511 U.S. 738, 745-46, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). The Marks rule (the narrowest-grounds-rule) becomes problematic when “one opinion supporting the judgment does not fit entirely within a broader circle drawn by the others.” King v. Palmer, 950 F.2d 771, 782 (D.C.Cir.1991) (en banc). Because there is little overlap between the plurality’s and Justice Kennedy’s opinions, it is difficult to determine which holding is the narrowest. Of those circuit courts that have considered Rapanos, most have concluded that Justice Kennedy’s opinion constitutes the narrowest holding. United States v. Robison, 505 F.3d 1208, 1221-22 (11th Cir.2007); N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir.2007); United States v. Gerke Excavating, Inc., 464 F.3d 723, 724-25 (7th Cir.2006) (per curiam). Thus if a wetland meets the substantial nexus test, the federal authority has jurisdiction to regulate the wetland under the Act. Rapanos, 547 U.S. at 780, 126 S.Ct. 2208 (Kennedy, J., concurring). The Seventh and the Ninth have not foreclosed the possibility that the plurality’s test might apply in some cases and have limited their holdings to the facts of the cases before them. N. Cal. River Watch, 496 F.3d at 999-1000 (stating that Justice Kennedy’s concurrence provided “the controlling rule of law for our case” and that it is “the narrowest ground to which a majority of the Justices would assent if forced to choose in almost all cases”); Gerke Excavating, 464 F.3d at 725 (stating that Justice Kennedy’s test “must govern the further stages of this litigation”). The Seventh Circuit concluded that the narrowest opinion is the one least restrictive of federal authority to regulate and that “as a practical matter the Kennedy concurrence is the least common denominator.” Gerke Excavating, 464 F.3d at 725. Similarly, the Eleventh Circuit determined that the narrowest grounds is the “less far-reaching (i.e., less-restrictive of CWA jurisdiction)” and that “Justice Kennedy’s test, at least in wetlands cases such as Rapanos, will classify a water as ‘navigable’ more frequently than Justice Scalia’s test.” Robison, 505 F.3d at 1221. The First Circuit has concluded that the Marks rule is unworkable as applied to Rapanos and has instead followed the dissent’s instruction to find jurisdiction if either the plurality’s test or Justice Kennedy’s test is met. United States v. Johnson, 467 F.3d 56, 66 (1st Cir.2006). The Sixth Circuit did not decide which test controls, concluding that jurisdiction in the case before it was proper under both the plurality’s and Justice Kennedy’s opinion. United States v. Cundiff, 555 F.3d 200, 210-13 (6th Cir.2009); see also United States v. Lucas, 516 F.3d 316, 327 (5th Cir.2008) (concluding that the evidence presented at trial was sufficient to support all three Rapanos standards and upholding guilty verdicts of defendants convicted under the Act). Bailey and amicus Pacific Legal Foundation argue that the controlling jurisdictional test is stated in the plurality opinion, and thus the wetland must have a continuous surface connection with naviga^ble-in-fact water for the Corps to assert jurisdiction over the wetland. The United States urges us to adopt the district court’s holding that the Corps has jurisdiction over the wetland if either the plurality’s test or Justice Kennedy’s test is satisfied. We find Judge Lipez’s reasoning in Johnson to be persuasive, and thus we join the First Circuit in holding that the Corps has jurisdiction over wetlands that satisfy either the plurality or Justice Kennedy’s test. 3. Justice Kennedy’s Jurisdictional Test Is Met in this Case Because the Wetland Is Adjacent to Lake of the Woods Justice Kennedy’s opinion holds that when a wetland is adjacent to the navigable-in-fact waters, then a significant nexus exists as a matter of law. Rapanos, 547 U.S. at 780, 126 S.Ct. 2208 (“As applied to wetlands adjacent to navigable-in-fact waters, the Corps’ conclusive standard for jurisdiction rests upon a reasonable inference of ecological interconnection, and the assertion of jurisdiction for those wetlands is sustainable under the Act by showing adjacency alone.”); see also N. Cal. River Watch, 496 F.3d at 1000 (noting that Justice Kennedy reaffirmed “that wetlands adjacent to navigable waterways are covered by the Act”). If the wetland is adjacent to non-navigable tributaries of navigable-in-fact waters, then the Corps must show that the wetland “significantly affect[s] the chemical, physical, and biological integrity” of the navigable-in-fact waters. Rapanos, 547 U.S. at 780, 126 S.Ct. 2208. Justice Kennedy found the Corps’ definition of adjacent to be reasonable when applied to wetland adjacent to navigable-in-fact waters, 547 U.S. at 774, 126 S:Ct. 2208, and the Corps defines “adjacent” to mean “bordering, contiguous, or neighboring.” 33 C.F.R. § 328.3(c). The district court determined that the road was built on wetland adjacent to the Lake, which is undisputably a navigable-in-fact water, holding that “the Corps has presented evidence that the wetland on the Site extends to the edge of the Lake and is thus ‘bordering’ on or ‘contiguous’ to the Lake.” Bailey, 516 F.Supp.2d at 1007. Bailey argues that the Corps has failed to meet its burden on summary judgment to show that the wetland at issue is adjacent to the Lake. Specifically, Bailey argues that the Corps has not shown that the fifteen-foot corridor closest to the Lake has wetland hydrology because it did not sample the soil saturation. Without wetland hydrology, the corridor cannot be deemed a wetland. Bailey also contends that a genuine issue of material fact exists as to whether the 100-foot corridor closest to the Lake is wetland because Gary Lockner, the County’s environmental services director, testified in a related proceeding that it is not. We review de novo the district court’s grant of summary judgment, affirming if there exist no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. In re Operation of Mo. River Sys. Litig., 421 F.3d 618, 628 (8th Cir.2005); Fed.R.Civ.P. 56(c). To determine whether these corridors constitute wetlands, we review the definition of wetlands and explain the Corps’ evaluation of the site. The Corps defines wetlands as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” 33 C.F.R. § 328.3(b). The Corps conducts wetland delineations to determine the presence and extent of wetland, using the criteria set forth in the 1987 Corps of Engineers Wetlands Delineation Manual (1987 Manual) and Corps’ guidance interpreting the 1987 Manual. In general, the 1987 Manual defines land as wetland when, under normal conditions: (1) the land is dominated by hydrophytic vegetation (plants that have the ability to grow, effectively compete, reproduce and/or persist in anaerobic soil conditions caused by inundated or saturated soil conditions); (2) the land has wetland hydrology (inundated or saturated to the surface for at least five percent of the growing season in most years); and (3) the land consists of hydric soils (soils formed under conditions of saturation, flooding, or ponding long enough during the growing season to develop anaerobic conditions in the upper part of the soil). The Corps uses defined field indicators to determine whether the land is wetland by investigating the plants, water, and soil. To determine whether an area is dominated by hydrophytic vegetation, the Corps establishes at least one sample point within each plant community and surveys the herbaceous vegetation within a five-foot radius and the woody vegetation within a thirty-foot radius. The Corps consults a list of plant species published by the United States Fish and Wildlife Services, which assigns an indicator status to individual plant species reflecting their probability of occurrence in wetlands. Hydrophytic vegetation is present if greater than fifty percent of the dominant plant species are obligate wetland plants, facultative wetland plants, or facultative plants (ex-eluding facultative negative). To determine whether the land has wetland hydrology, the Corps requires either one primary indicator, such as direct observation of soil saturation within twelve inches of the surface, or two secondary indicators, such as the FAC-neutral test and local soil survey data. The FAC-neutral test uses vegetation as a secondary indicator of hydrology. If obligate wetland plants and facultative wetland plants outnumber facultative upland plants and obligate upland plants, then the sample meets the FAC-neutral test and tests positive as a secondary indicator of hydrology. The rationale is that obligate wetland plants and facultative wetland plants occur in wetlands 67 to 99 percent of the time. Facultative plants, which occur in both wetlands and nonwetlands, are considered neutral. An interdisciplinary team consisting of Steve Eggers, a senior ecologist with the Corps; Rod Heschke, a soil scientist with the United States Department of Agriculture; and Kelly Urbanek, a senior project manager and biologist with the Corps, conducted field investigations to delineate the wetland at the site. Consistent with the 1987 Manual, they established at least one sample point where a change in soils, hydrology, vegetation, or topography occurred, which resulted in a survey of forty-six sample points along established transects. They sampled vegetation, saturation levels, and soil types, concluding that the wetland encompassed the entire site except for approximately 1.31 acres. According to the expert report prepared by Eggers and Heschke, there is no upland border along the site’s shoreline. Thirteen of the forty-six sample points were within 15 to 101 feet of the cut bank of the shoreline. All thirteen of these sample points were dominated by hydrophytes and had hydric soils. Eleven of the thirteen had saturated soils within twelve inches of the surface, a primary indicator of wetland hydrology. The twelfth met two secondary indicators of wetland hydrology, the FAC-neutral test and the local soil survey data. The thirteenth sample point lacked sufficient indicators of wetland hydrology. Eggers and Heschke concluded that the area surrounding the thirteenth point is drained by a preexisting ditch and does not constitute a wetland. Although the Corps did not sample the soil saturation, a primary indicator of wetland hydrology, within the fifteen-foot corridor of land closest to the Lake, two secondary indicators — the FAC-neutral test and local soil survey data — were met. Eggers found that the FAC-neutral test was met in the fifteen-foot corridor based on his observation of the vegetation closest to the lakeshore. Eggers established three sample points at the fifteen-foot mark, and he surveyed the herbaceous vegetation within the five-foot radius of the sample points and the saplings and shrubs within the thirty-foot radius. Eggers observed no changes in vegetation between the Lake and the sample points at the fifteen-foot mark that would have necessitated further sampling and determined that the land closest to the Lake tests positive under the FAC-neutral test. The other secondary indicator was local soil survey data, which Heschke reviewed. Heschke concluded that the soils within fifteen feet of the Lake are hydric based on his observations of the site, the National Cooperative Soil Survey, and the prevalence of the hydric soils in the surrounding area. The Corps thus presented sufficient evidence to allow a factfinder to conclude that the fifteen-foot corridor closest to the Lake’s shoreline consisted of wetland hydrology. Bailey failed to rebut the Corps’ evidence; he offered no expert evidence of the hydrological characteristics of the site, let alone the fifteen-foot corridor closest to the Lake. In his briefs and at oral argument, Bailey explained that the wetland at the site is a bowl shape, with the highest point being along the Lake. Bailey also argues that the drop between the Lake and the shore causes the water table to be drawn down, creating upland. Accordingly, his argument goes, the fifteen-foot strip of land is not wetland. Without competent evidence to contradict the government’s expert evidence that the corridor constitutes wetland, however, we cannot make that leap. Bailey also contends that the 100-foot corridor closest to the Lake is not wetland, but he has again failed to submit evidence sufficient to create a genuine issue of material fact. As he did before the district court, Bailey relies heavily on the testimony from Gary Lockner, the County’s environmental services director, who opined in a state proceeding that the 100-foot corridor was upland and lacked wetland hydrology. Bailey brushed aside the district court’s ruling that the testimony was inadmissible hearsay, arguing that “in a motion for summary judgment all evidence can arguably be found to be hearsay.” It was Bailey’s responsibility to come forward with admissible evidence to survive summary judgment, yet Bailey has failed to overcome the barriers of the hearsay rule. See Plamp v. Mitchell Sch. Dist. No. 17-2, 565 F.3d 450, 460 (8th Cir.2009) (“Plamp fails to overcome the hearsay rule, and, thus, the evidence cannot defeat summary judgment.”); Sallis v. Univ. of Minn., 408 F.3d 470, 474 (8th Cir.2005) (“The nonmoving party must show by admissible evidence that specific facts remain which create a genuine issue for trial.”). Lockner’s inadmissible testimony cannot be used to defeat summary judgment. Even if we were to accept the testimony, Lockner’s opinion remains unsupported and unreliable, for it was based on his assumption that the Lake had a drainage effect on the site. Lockner was not identified as an expert in this case, nor did he conduct a wetland delineation of the site. Instead, he apparently relied on the van Shilfgaarde equation to conclude that the 100-foot corridor lacked wetland hydrology. Bailey has presented no evidence that it is appropriate to use the van Shilfgaarde equation to estimate the drainage effect of a natural lake, and Eggers testified that he thought it would be inappropriate to do so. Eggers had used the equation to estimate the drainage effect of the man-made ditch on the site, and he had never heard of its being used to determine the drainage effect of a lake. We cannot assume, as Bailey has asked us to do, that the Lake has a drainage effect similar to a ditch. The Corps has submitted competent and extensive evidence in this case to show that the site is situated in a wetland adjacent to navigable-in-fact waters, whereas Bailey has failed to present contrary evidence sufficient to create a genuine issue of material fact that the land closest to the Lake is not wetland. 4. No Abuse of Discretion in Admitting the Corps’ Expert Evidence Bailey argues that Eggers’s expert opinion is not sufficiently reliable to meet the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), contending that the use of facultative plants as indicators of the presence of hydrophytic vegetation falsely indicates wetlands. We review the district court’s decision to admit expert testimony for abuse of discretion, according it substantial deference. Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757 (8th Cir.2006). Federal Rule of Evidence 702 provides that an expert may testify if it “will assist the trier of fact to understand the evidence or determine a fact in issue.” The trial court serves as a gatekeeper to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. 2786. Expert evidence is unreliable if it is speculative, unsupported by sufficient facts, or contrary to the facts of the case. Marmo, 457 F.3d at 757. We find no abuse of discretion in the district court’s consideration of the Corps’ expert evidence. Hydrophytic veg- etation is one of three criteria the Corps uses to define wetlands. Even assuming that facultative plants falsely indicate wetland vegetation, the land must also consist of hydric soil and have wetland hydrology to be considered a wetland. Moreover, the Corps does not consider all facultative plants as indicators of hydrophytic vegetation; it excludes facultative negative plants, which indicate the drier end of the category. The Corps found obligate wetland plants and facultative wetland plants at the site, both of which are much more likely to grow in wetlands than nonwetlands. Accordingly, the district court properly rejected Bailey’s challenge to the reliability of the evidence. B. Restoration Order Bailey does not challenge the substance of the restoration order and the work required therein. Instead, he argues that the restoration order is arbitrary and capricious because the Corps should have approved his permit application and allowed him to mitigate the damage, rather than denying his permit application and ordering him to restore the site. As indicated earlier, however, Bailey did not appeal from the district court’s order affirming the Corps’ denial of his 404(b) application. Bailey, 2003 WL 21877903. In his reply brief, Bailey frames this argument as stating a violation of the Constitution’s equal protection clause. Bailey argues that because the Corps issued a permit to the County for Sandy Shores Drive, the drive that Bailey’s road would have extended, the Corps should have done the same for him. The district court dismissed the argument, holding that Bailey’s equal protection claim failed because he did not show that he was similarly situated to the County or that the Corps’ disparate treatment of the two lacked a rational basis. Bailey has failed to convince us that the Corps’ disparate treatment resulted in a violation of the equal protection clause. See Geach v. Chertoff, 444 F.3d 940, 945 (8th Cir.2006) (equal protection standard under the Fifth Amendment). Bailey and the County are not similarly situated. In 2001, the County applied for an after-the-fact permit for Sandy Shores Drive, which was built partly on wetland. At that time, the road had been in existence for at least a decade and served many long-time residents. Bailey, on the other hand, was notified by the Corps in 1993 — five years before he began building the road and polluting the wetland — that a permit was required. Bailey was encouraged to hire a consultant to delineate the property and assist in the permitting process and was notified before, during, and after the road’s construction that a permit was required. Given these circumstances, we conclude that the Corps had a rational basis to treat Bailey and the County differently. C. Permanent Injunction To Enforce Restoration Order Bailey argues that the district court should not have entered the restoration order because genuine issues of material fact existed regarding his ability to pay for the restoration, his knowledge that the property was a wetland, and whether the County was the appropriate defendant. Bailey asserts that he should have been allowed to go to trial on these issues and that we should apply a de novo standard of review to the restoration order. Bailey fails to recognize that he is appealing from a permanent injunction, the entry of which we review for abuse of discretion. Roach v. Stouffer, 560 F.3d 860, 863 (8th Cir.2009); United States v. S. Inv. Co., 876 F.2d 606, 615 (8th Cir.1989); see also United States v. Cumberland Farms of Conn. Inc., 826 F.2d 1151, 1164 (1st Cir.1987) (reviewing for abuse of discretion district court’s issuance of an injunction to restore wetland to its previolation condition). “A district court abuses its discretion when it bases its decision on a legal error or a clearly erroneous finding of fact.” Roach, 560 F.3d at 863 (quoting Kennedy Bldg. Assocs. v. CBS Corp., 476 F.3d 530, 533 (8th Cir.2007)); cf. Sexton Cove Estates, 526 F.2d at 1301 (setting forth legal standard to be followed in considering environmental restoration, vacating partial restoration order, and remanding to the district court for further proceedings). The Act authorizes district courts to issue injunctive relief for violations of § 1311(a). The district court analyzed the propriety of the permanent injunction and restoration order under the standard set forth in United States v. Sexton Cove Esates, Inc. Under the Sexton Cove Estates line of cases, the restoration plan must: “(1) be designed to confer maximum environmental benefits tempered with a touch of equity; (2) be practical and feasible from an environmental and engineering standpoint; (3) take into consideration the financial resources of defendants; and (4) include consideration of defendants’ objections.” S. Inv. Co., 876 F.2d at 615 (quotation and citation omitted). Bailey agrees with the government that the district court applied the correct legal standard, but he contends that further fact finding is required. Bailey argues that there is no evidence in the record that he had the means to restore the wetland, but he has not argued that he is unable to pay for the work outlined in the restoration plan. At the summary judgment hearing, his attorney conceded that the cost of removing the road would be about the same as the cost of building it. Similarly, Bailey does not argue on appeal that he cannot afford the restoration, but rather contends that the district court should have required more evidence. If Bailey had wished to contest this factor, he should have submitted evidence to the district court. The finding that restoration was within Bailey’s financial means was not clearly erroneous. Bailey also argues that he did not know that the site was wetland before or during the construction of the road. Civil liability under the Clean Water Act is strict, and the government was not required to show that Bailey knew that his act of building a road violated the Act. 33 U.S.C. § 1319(b); see also United States v. Sinskey, 119 F.3d 712, 715-16 (8th Cir.1997) (holding that the government did not have to prove that the defendant knew that his acts violated the Clean Water Act, but merely that he was aware of the conduct that resulted in the permit’s violation). Even assuming that knowledge was required, the record supports the district court’s finding that Bailey was well aware that he needed a Section 404 permit to place fill on the site. Again, we find no legal or factual error. Finally, Bailey makes the equitable argument that the County should be required to pay for the restoration because (1) Bailey instructed LaValla to complete the road at the direction of the County; (2) the County was involved in the permitting process; and (3) the County owns the road. The district court examined each of these contentions, supporting its factual findings with citations to the record. The district court did not err in concluding that: An examination of the record demonstrates that Bailey’s contentions are meritless. The undisputed fact is that, at all relevant times, Bailey and Bailey alone was the driving force behind the creation of the Road. It was Bailey’s decision to clear the sixty-six-foot wide roadway through the wetland and build the Road. It was Bailey who hired LaValla to perform the work. It was Bailey who told LaValla to resume the work after LaValla had been told to stop. And it was Bailey who stood to profit from the construction of the Road. Bailey did have extensive interactions with the County, but the focus of those interactions was not on the Road’s compliance or lack of compliance with federal environmental standards — something that the County had no authority to address. Rather, the focus of Bailey’s interaction with the County was on getting the land platted and getting the County to take over responsibility for maintaining the Road. None of this makes the County responsible for Bailey’s violations of the CWA. At every step of the way, Bailey was well aware, as he had been since at least 1993, that he needed a Section 404 permit to place fill on the Site .... It defies belief that Bailey, after being told by the Corps to stop work on the Road until he got a permit from the Corps, would resume work on the road without checking first with the Corps. Thus, even under the most charitable reading of the record, Bailey cannot claim ignorance of the fact that any additional work would be at his own risk. Bailey, 516 F.Supp.2d at 1016, 1017. Bailey disputes the district court’s interpretation of the facts and its conclusion that Bailey was solely responsible for the violations of the Act. The district court, however, correctly applied the law and relied on no clearly erroneous fact to reject Bailey’s equitable argument. We find no abuse of discretion in the district court’s order issuing a permanent injunction ordering Bailey to restore the wetland to its previolation condition. Conclusion The district court properly found that the Corps had jurisdiction because the wetland at issue is adjacent to the Lake. We find no abuse of discretion in the district court’s evidentiary rulings or its order enjoining Bailey to comply with the restoration order. Bailey has advanced no substantive arguments for the reversal of the district court’s dismissal of his suit against the County based on his failure to assert a valid third-party claim. The judgments are affirmed. . The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota. . Bailey appealed from the Corps’ denial of the application for a Section 404 permit. Bailey v. United States Army Corps of Eng'rs, No. 02-639, 2003 WL 21877903 (D.Minn. Aug.7, 2003). The district court affirmed, and Bailey did not appeal from the order affirming the denial. . Bailey argues that adjacency of wetland to navigable waters alone is insufficient to confer jurisdiction on the Corps under Justice Kennedy's test and that the Corps must prove that pollutants from the road reached the Lake. Bailey relies on an opinion from the Ninth Circuit that was later superseded. N. Cal. River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir.2006) (superseded). The superseding opinion deleted the precise language on which Bailey relies and clarified that adjacency to a navigable-in-fact water is sufficient to confer jurisdiction. N. Cal. River Watch, 496 F.3d at 1000. We do not find the superseded opinion to be persuasive authority- . Obligate wetland plants are those that occur almost always in wetlands under natural conditions (greater than 99 percent probability), but which may also occur rarely in nonwetlands. Facultative wetland plants occur usually in wetlands (greater than 67 percent probability), but also occur in nonwetlands. Facultative plants occur in both wetlands and nonwetlands. . The van Shilfgaarde equation is a method for calculating the lateral effect of a ditch on soil saturation. Eggers used the equation to estimate the lateral drainage effect of the man-made ditches on the site. . Bailey also argued that the Corps' expert evidence was unreliable because the Corps did not consider the drainage effect of the Lake on the land closest to the Lake. We find this argument to be without merit. As discussed in the previous section, Bailey did not submit any credible evidence to support his contention that the Lake has a lateral drainage effect on the site. . To the extent Bailey is challenging as unreasonable the Corps' interpretation of wetlands in the 1987 Manual, we note that Congress has mandated that the 1987 Manual be used until a final wetlands-delineation manual is adopted. Energy and Water Development Appropriations Act, 1993, Pub.L. No. 102-377, 106 Stat. 1315 (1992). We also defer to the 1987 Manual as the Corps’ interpretation of its own regulation, for an agency's interpretation of its own regulation "is entitled to deference 'unless plainly erroneous or inconsistent with the regulation.’ ” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 2538, 168 L.Ed.2d 467 (2007) (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)). . The government did not give a record citation for its assertion that Sandy Shores Drive was built in 1978 and extended in 1985-86. Bailey relies on the year the most recent Sandy Shores addition was platted' — 1990— citing a letter from the County's assistant zoning administrator. For purposes of summary judgment review, we will accept Bailey’s date. . Bailey’s argument confuses the grant of summary judgment with the issuance of injunctive relief. We note that if summary judgment had been improvidently granted, we would have vacated the permanent injunction. Mulcahy v. Cheetah Learning LLC, 386 F.3d 849, 852 (8th Cir.2004) (citing Randolph v. Rodgers, 170 F.3d 850, 856 (8th Cir. 1999)).

Natural Resources Defense Council, Inc. v. Federal Aviation Administration

REENA RAGGI, Circuit Judge: The Panama City-Bay County Airport and Industrial District (the “Sponsor”), a state-chartered entity that owns and operates Panama City-Bay County International Airport (the “Panama City Airport”), proposes to close the existing airport at Panama City, Florida, and to construct a new airport in western Bay County (the “West Bay Site”). Pursuant to the Airport and Airway Improvement Act (AAIA), 49 U.S.C. §§ 47101-47131, the Sponsor sought and obtained approval for the construction project from the Federal Aviation Administration (“FAA”). Petitioners Natural Resources Defense Council, Inc., Defenders of Wildlife, and Friends of PFN (collectively, “petitioners”) challenge the FAA’s decision as a violation of the AAIA and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, and they request that this court enjoin the FAA from implementing its decision. Because the FAA’s decision is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), we deny the petition for review and the relief sought therein. I. Background A. Factual Background 1. The Existing Panama City Airport The existing Panama City Airport occupies 713 acres on the Florida panhandle. The northwest end of the primary runway abuts the open waters of Goose Bayou, which is part of a system of bays extending inland into Bay County. The remainder of the airport is surrounded by roads and commercial and residential development. Any expansion of the existing airport, therefore, would entail re-routing highways, displacing homes, filling in the bay waters of Goose Bayou, or some combination thereof. Expansion of the existing airport is necessary to comply with the FAA’s revised Runway Safety Are a standards. The runway safety area serves to reduce the risk of injury to passengers and damage to property “in the event an aircraft undershoots, overshoots, or deviates from a taxiway or runway.” 65 Fed.Reg. 38,636, 38,-649 (June 21, 2000). By December 31, 2015, all airports receiving federal funding must conform to revised Runway Safety Area standards, see 2006 Transportation Appropriations Act, Pub.L. No. 109-115, tit. I, 119 Stat. 2396, 2401 (2005); 14 C.F.R. § 139.309, by (1) enlarging the safety area to the requisite dimensions, (2) deploying an Engineered Materials Arresting System (“EMAS”), or (3) declaring the runway to be a shorter length, see FAA, Airport Design, Advisory Circular No. 150/5300-13 at 21, 25-26 & app. 14 (Sept. 29, 1989), available at www.faa.gov (follow “Advisory Circulars” hyperlink). These FAA standards provide that the runway safety area should extend 1,000 feet beyond the runway’s end. See id. at 26-1 (table 3-3): see also Toum of Stratford v. FAA, 285 F.3d 84, 86 (D.C.Cir. 2002) (describing methodology for calculating runway safety area). An airport that deploys EMAS, however, may require less than 1,000 feet of runway safety area beyond the runway’s end to comply with FAA standards. See FAA, Engineered Materials Arresting Systems (EMAS) for Aircraft Overruns, Advisory Circular No. 150/5220-22A at 1 (Sept. 30, 2005), available at www.faa.gov (follow “Advisory Circulars” hyperlink). The primary runway at the Panama City Airport is 6,304 feet long, and the secondary crosswind runway is 4,888 feet long. Neither runway complies with the FAA’s revised Runway Safety Area standards. To be in compliance, the airport would need to extend the safety area an additional 941 feet beyond the Goose Bayou end of the primary runway. The runway safety area at the southeast end of the primary runway meets an antenna at 445 feet, an airport perimeter road at 678 feet, and State Road 390 at 847 feet. Each of these barriers prevents extension of the safety area to an uninterrupted 1,000 feet beyond the runway’s end. The airport’s 6,304-foot primary runway is also too short for larger commercial aircraft. The FAA determined that a 6,800-foot runway would be necessary to accommodate the regional and narrow-body jets that could be expected to serve the airport through 2018. The Sponsor, however, wishes to expand the runway to receive wide-bodied aircraft arriving nonstop from overseas. To serve such larger aircraft, the Sponsor determined that it would need to expand the existing primary runway to 8,400 feet. See Intervener’s Br. at 5-6. Extending the runway either to 6,800 or to 8,400 feet would run into the obstacles discussed above: established homes, businesses, roads, and Goose Bayou. 2. The Proposed West Bay Site The St. Joe Company (“St. Joe”), the largest private landowner in Florida, has agreed to donate approximately 4,000 acres in West Bay County for construction of a new airport, contingent on the Sponsor’s agreement to locate the airport within certain boundaries and the FAA’s “commitment of funds for the airport’s construction.” Letter from Peter S. Rummell, CEO, St. Joe, to Donald Crisp, Chairman, Panama City-Bay County Airport and Industrial District, at 1 (Nov. 17, 1999). St. Joe owns most of the land surrounding the proposed site and, thus, would likely benefit from the new airport. See generally Sierra Club v. U.S. Army Corps of Eng’rs, 464 F.Supp.2d 1171, 1177-78 (M.D.Fla.2006) (noting St. Joe’s regional land holdings and construction plans). To mitigate environmental damage that would be caused by the construction of a new airport, St. Joe has committed to set aside 9,609 of its acres as conservation easements. 3. Anticipated Effects of the Proposed Airport on Natural Resources About half of the 4,037-acre site (approximately 1,929 acres) consists of “jurisdictional wetlands.” These wetlands are a potential habitat for several species protected by the Endangered Species Act, including the American alligator, the woodstork, the eastern indigo snake, and the flatwoods salamander. The first phase of the new airport construction would fill 596 acres of the wetlands. The FAA estimates that airport development over the next 50 years would have a direct impact on a total of 1,513 acres of the wetlands, with other development potentially affecting all wetlands within the site. These construction impacts and resulting loss of wetlands may adversely affect the eastern indigo snake and flatwoods salamander. In addition, the proposed airport would be situated in a watershed between two tributaries, Crooked Creek and Burnt Mill Creek, that empty into the West Bay, a body of water containing potential “Essential Fish Habitat.” The project would fill in 7,279 feet of streams that eventually join the two larger tributaries. Airport construction would also create nearly 800 acres of impervious surfaces, such as runways and parking lots, that would channel runoff into the Crooked Creek and Burnt Mill Creek watersheds and eventually into West Bay. B. Procedural Background 1. Project History As with many complex construction projects, plans for the West Bay airport have evolved over a number of years. The Sponsor completed an “Airport Master Plan Update” in 1996, which identified a future need for longer runways and larger runway safety areas to service the Bay County area. The Sponsor initially proposed to extend the existing Panama City Airport’s primary runway into Goose Bayou, but it abandoned that proposal when the Florida Department of Environmental Protection (“Florida DEP”) expressed concern that such a runway extension would (1) adversely affect Class II Surface Water suitable for shellfish propagation or harvesting, (2) fill sovereign submerged lands in violation of Florida law, and (3) destroy protected seagrasses. See Letter from Virginia B. Wetherell, Fla. DEP, to Cherie Trainor, Fla. Dep’t of Cmty. Affairs (July 15, 1998); see also Letter from David B. Struhs, Fla. DEP, to Virginia Lane, FAA, at 1 (Oct. 24, 2003) (“The issues and objections expressed in the [1998 letter] have not changed or abated.”). Having encountered such opposition, the Sponsor explored other options, including the West Bay Site offered by St. Joe. When the “Feasibility Study for Panama City-Bay County International Airport” commissioned by the Sponsor recommended relocation, the Sponsor, pursuant to the AAIA, sought approval from the FAA to build a new airport at the West Bay Site. 2. The FAA’s Challenged Approval In addressing the Sponsor’s application to build a new airport at the West Bay Site, the FAA, pursuant to NEPA, prepared a draft environmental impact statement (“EIS”) and, after receiving public comment, issued a final EIS (“FEIS”), which assessed, inter alia, the adverse effects of the Sponsor’s proposed action and alternatives to the proposal. Relying on findings in the FEIS, the agency issued its Record of Decision (“ROD”) on September 15, 2006, approving “those federal actions by the [FAA] necessary for the proposed relocation of the Panama City-Bay County International Airport (PFN).” ROD at 4. The ROD explains the FAA’s approval of the Sponsor’s application. As discussed in greater detail below, the AAIA does not permit the FAA to approve an airport development project that has a significant adverse effect on natural resources unless there is no possible and prudent alternative to the project and every reasonable effort to mitigate the adverse effect has been taken. See 49 U.S.C. § 47106(c)(1)(B) (discussed infra at Part II.D). While the FAA found that a new airport at the West Bay Site would have a significant adverse effect on natural resources, it nevertheless approved the project because it found that no prudent alternative existed. See ROD at 68-69. Petitioners timely sought this court’s review of the FAA decision pursuant to 49 U.S.C. § 46110. 3. Petitioners’ Motion to Stay Enforcement of the FAA Order On November 28, 2007, petitioners filed an emergency motion to stay the FAA’s order pending review in this court, which a judge of this court granted. The Sponsor responded with an emergency motion of its own to vacate the stay and to expedite oral argument on the merits. On December 18, 2007, a three-judge motions panel modified the stay to allow limited construction at the West Bay Site. The court heard oral argument on the review petition on January 23, 2008, and vacated the stay entirely on January 25, 2008, concluding that a balancing of the relevant factors favored the position of the FAA and the Sponsor. We now reach the merits and deny the petition. II. Discussion A. Jurisdiction We have jurisdiction to review a petition filed by “a person disclosing a substantial interest” in an order issued by the FAA, provided that the “person resides or has its principal place of business” in this circuit. 49 U.S.C. § 46110(a); see also 5 U.S.C. § 702. Although the FAA does not contest jurisdiction, the intervenor Sponsor argues that petitioners fail to satisfy the “substantial interest,” or standing, requirement of the statute. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (identifying standing as “an essential and unchanging” predicate to the court’s exercise of jurisdiction). We conclude that affidavits submitted by various members of petitioners’ organizations, including private pilots who use the existing Panama City Airport and persons who use and enjoy wetlands that will be eliminated by the proposed airport, suffice to demonstrate the requisite substantial interest in the challenged order. See generally Summers v. Earth Island Inst., — U.S. -, 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009) (noting that harm that “affects the recreational or even the mere esthetic interests” of plaintiff organization’s members will “suffice” to establish particularized injury); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 183, 120 S.Ct. 693,145 L.Ed.2d 610 (2000) (same). B. Standard of Review We review the FAA’s application of law to fact under the Administrative Procedure Act, and we will “set aside the agency’s decision only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Southeast Queens Concerned Neighbors, Inc. v. FAA, 229 F.3d 387, 394 (2d Cir.2000) (quoting 5 U.S.C. § 706(2)(A)). Under this deferential standard of review, we cannot substitute our judgment for that of the agency. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Nevertheless, “[o]ur inquiry must be ‘searching and careful.’ ” National Audubon Soc’y v. Hoffman, 132 F.3d 7, 14 (2d Cir.1997) (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). The record must show that “the agency ... examine[d] the relevant data and articulate[d] a satisfactory explanation for its action.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co. (“State Farm”), 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); see Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71, 79 (2d Cir.2006). Moreover, the agency’s decision must reveal a “ ‘rational connection between the facts found and the choice made.’ ” State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)): see Fund for Animals v. Kempthome, 538 F.3d 124, 132 (2d Cir.2008). C. The National Environmental Policy Act Challenge Petitioners submit that the FAA violated NEPA when it decided to authorize the building of a new airport at the West Bay Site. To facilitate our discussion of this argument, we briefly outline the NEPA provision at issue. ' 1. NEPA’s Requirement for an EIS NEPA requires a federal agency to prepare an EIS before taking any major action “significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); see Stewart Park & Reserve Coal., Inc. v. Slater, 352 F.3d 545, 557 (2d Cir.2003); Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 193 (D.C.Cir.1991). The purpose of an EIS is to “provide full and fair discussion of significant environmental impacts and [to] inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” 40 C.F.R. § 1502.1. Thus,- NEPA is “a procedural statute that mandates a process rather than a particular result.” Stewart Park & Reserve Coal, Inc. v. Slater, 352 F.3d at 557. The agency’s overall EIS-related obligation is to “take a ‘hard look’ at the environmental consequences before taking a major action.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). Significantly, “[i]f the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). The scope of judicial review of an EIS is “narrow.” Sierra Club v. U.S. Army Corps of Eng’rs, 701 F.2d at 1029. “Given the role of the EIS and the narrow scope of permissible judicial review, a court may not rule an EIS inadequate if the agency has made an adequate compilation of relevant information, has analyzed it reasonably, has not ignored pertinent data, and has made disclosures to the public.” Stewart Park & Reserve Coal, Inc. v. Slater, 352 F.3d at 557 (internal quotation marks omitted). 2. The FAA Did Not Violate NEPA in Authorizing Construction of a New Airport at the West Bay Site Petitioners assert that the FAA violated NEPA in issuing an FEIS for the proposed airport that failed adequately (a) to evaluate alternatives to the proposed project, (b) to consider the indirect and cumulative effects of the proposed project in its comparison of alternatives, and (c) to disclose scientific evidence indicating that the Sponsor’s mitigation efforts will likely not succeed in offsetting the loss of wetlands. Petitioners further fault the FAA for (d) declining to issue a supplemental EIS evaluating the impact of the proposed airport on the endangered ivory-billed woodpecker. We address these objections in turn. a. The FEIS Analysis of Alternatives Under NEPA, an agency’s discussion of “alternatives to the proposed action,” 42 U.S.C. § 4332(2)(C)(iii), forms “the heart of the environmental impact statement,” 40 C.F.R. § 1502.14. Thus, an agency must “Vigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.” Id. § 1502.14(a); see also Citizens Against Burlington, Inc. v. Busey, 938 F.2d at 195 (“[Council on Environmental Quality] regulations oblige agencies to discuss only alternatives that are feasible or ... reasonable.”). In this case, the FAA did not evaluate in detail any alternative that “did not substantially meet the purpose and need objectives” of the airport project as described in the FEIS. ROD at 19. The FAA also rejected any alternative that would have an adverse impact on Florida Class II Waters, ie., that would introduce fill materials or pier-based extensions into Goose Bayou. See ROD at 23-24. After these alternatives were eliminated from review, seven remained for detailed consideration. Each involved varying runway and runway safety area, expansions- with different materials at just two locations: the site of the existing Panama City Airport (“the Existing Site” alternatives) and the West Bay Site. See id. at 24-27. Petitioners contend that the FAA acted arbitrarily in screening out those alternatives that would affect the adjacent waters of Goose Bayou, including one referred to as “EMAS Scenario 3” that, like “EMAS Scenario 2” (which was considered), would deploy specially engineered materials in the runway safety area to brake aircraft that deviate from the runway. See FEIS at 3-13. EMAS Scenario 3, however, proposed to extend the runway and runway safety area into Goose Bayou on a 4.2-acre pier, thereby affecting Florida Class II waters. See id. at 3-50. It would also extend the runway and runway safety area to the southeast, displacing 22 single-family homes. See id. We cannot conclude that the FAA abused its discretion in declining to consider alternatives that would affect Goose Bayou. As the FAA noted, Goose Bayou included Florida Class II waters, and the Florida DEP viewed projects affecting such waters as unacceptable, see FEIS at 3-MO, a position confirmed by the Florida DEP in its amicus brief to this court, see Florida DEP Br. as Amicus Curiae at 5. Thus, the FAA reasonably concluded that projects affecting Goose Bayou did not present workable alternatives because they were unlikely to secure permit approval from the Florida DEP. See Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council Inc., 435 U.S. 519, 551, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (observing that NEPA does not require discussion of alternatives that, “in view of basic changes required in statutes and policies of other agencies,” would become available, “if at all, only after protracted debate and litigation” (internal quotation marks omitted)); Friends of Richards-Gebaur Airport v. FAA, 251 F.3d 1178, 1189 (8th Cir.2001) (holding that FAA was entitled to consider opinion of state government agency); Natural Res. Def. Council, Inc. v. Callaway, 524 F.2d 79, 93 (2d Cir.1975) (noting that “there is no need to consider alternatives of speculative feasibility or- alternatives which could only be implemented after significant changes in governmental policy or legislation”); cf. Islander E. Pipeline Co. v. McCarthy, 525 F.3d 141, 164 (2d Cir.2008) (noting that “a single state agency effectively vetoe[d] an energy pipeline that ha[d] secured approval from a host of other federal and state agencies”). Even if the Florida DEP had not opposed any airport development affecting Goose Bayou, we would not identify abuse of discretion in the FAA’s decision to review EMAS Scenario 2 but not EMAS Scenario 3 as a possible alternative. The two scenarios are similar in that each would extend the existing primary runway to a length of 6,800 feet and would comply with Runway Safety Area standards by deploying EMAS around the lengthened runway. Although EMAS Scenario 3 would displace only 22 homes, while EMAS Scenario 2 would displace 49, see FEIS at 3-50, the similarities between the two alternatives, in both advantages and disadvantages, preclude us from concluding that the FAA arbitrarily reviewed the latter alternative but not the former in order to reach a predetermined result. To the contrary, the agency complied with NEPA’s procedural requirement that it “briefly discuss the reasons” for eliminating EMAS Scenario 3, 40 C.F.R. § 1502.14, and it reasonably exercised its discretion to carry forward one, but not two, “EMAS Scenario” alternatives for further detailed analysis. See Friends of Ompompanoosuc v. Fed. Energy Regulatory Comm’n, 968 F.2d 1549, 1558 (2d Cir.1992) (“It is well-settled that under NEPA the range of alternatives that must be discussed is a matter within an agency’s discretion.” (citing Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. at 551-52, 98 S.Ct. 1197)). Finally, we reject petitioners’ contention that the FAA arbitrarily limited the geographic scope of its alternatives analysis to Bay County. Petitioners did not identify alternative sites outside Bay County in their comments on the agency’s draft EIS. Moreover, the FAA did in fact consider an alternative occupying part of Gulf County, but reasonably concluded that it was located too far from the “primary market base” to constitute a reasonable option. FEIS at 3-29 to -30. b. FEIS Indirect and Cumulative Impacts Analysis In determining the scope of an EIS, the agency “shall consider ... 3 types of impacts”: direct, indirect, and cumulative. 40 C.F.R. § 1508.25(c). Petitioners contend that the FAA failed to consider the indirect and cumulative impacts of the proposed West Bay airport. Specifically, petitioners argue that the FAA failed to consider (1) the impacts of two major highway construction projects that would provide new routes to the proposed West Bay Site and (2) the environmental impact of three million square feet of commercial and residential development that would be induced by the new airport. Petitioners further allege that the agency arbitrarily limited the geographic scope of its cumulative impacts analysis to Bay County. We reject these contentions as without merit. (1) Related Highway Construction An existing road, County Road 388, traverses Bay County from east to west, passing near the proposed West Bay Site. In its ROD, the FAA forecast a “marginal traffic increase” on existing roads near the proposed site, but did not find any adverse effects attributable to new highway construction. Indeed, the FAA did not identify new highway construction at all except for “turn lanes at CR 388 and the new airport access roadway.” ROD at 61; see also FEIS at 5-209 to -210 (listing “reasonably foreseeable major transportation projects in Bay County”). The FAA’s modest forecast was soon proved wrong. On March 15, 2007, about six months after the FAA issued its decision, the Northwest Florida Transportation Corridor Authority (“NWFTCA”) issued its recommended “corridor master plan,” Fla. Stat. § 343.82(3)(a), which the NWFTCA formally adopted on April 5, 2007. The plan describes two new four-lane, limited-access highways, known as the “Freeport-West Bay Connector” and the “West Bay Bypass,” respectively, that would provide direct transportation to the proposed airport. See NWFTCA, Master Plan 2007 at 10 (Mar.2007), http://www.nwftca.com/ html/mp_phase2/NFTCA-Master-Plan2007.pdf; NWFTCA, Master Plan Project Priorities (2007), http://nwftca.com/html/ home/NFTCA_Prioritization.pdf. Petitioners contend that the FAA should have foreseen these developments and accounted for them in the September 15, 2006 ROD because the NWFTCA discussed the West Bay Bypass and the Free-port-West Bay Connector at its board meeting six months earlier, on March 16, 2006. See Pet’rs’ Br. at 44 & n. 19. The board meeting minutes identified “[mjajor projects,” including a “new connector from the Gulf Coast Parkway at U.S. 231 extending to the new airport and on into Walton County.” NWFTCA Meeting Minutes ¶ 5(A) (Mar. 16, 2006), available at www.nwftca.com (follow “Board Meetings” hyperlink). Although the speaker referenced a freeway proposal different from the one about which petitioners now complain, the minutes nevertheless suggest that the NWFTCA intended to account for the new airport in its freeway development plans. The minutes do not indicate, however, that any representatives of the FAA were present at the meeting, nor do they indicate any communication with the FAA. In short, the record does not reflect that the FAA had actual notice of the March 16, 2006 freeway proposal. To the extent the NWFTCA made its proceedings public, the agency might be deemed to have had constructive notice of state highway projects related to the proposed airport. As the Sponsor argues, however, petitioners had the same access to such public information but did not present their concerns about the effects of new highway construction to the FAA during the public comment period, which lasted from May 12, 2006 to July 5, 2006. See Intervener’s Br. at 51. The absence of comments from petitioners regarding the indirect and cumulative impacts of the West Bay Bypass and the Freeporh-West Bay Connector, together with the absence of evidence indicating that the agency was actually aware of the highway projects, preclude us from concluding that the FAA’s failure to include the impacts of projected highway projects in its ROD was arbitrary or capricious. While an “agency bears the primary responsibility to ensure that it complies with NEPA,” Department of Transp. v. Pub. Citizen, 541 U.S. 752, 765, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004), “[pjersons challenging an agency’s compliance with NEPA must ‘structure their participation so that it ... alerts the agency to the [parties’] position and contentions,’ in order to allow the agency to give the issue meaningful consideration,” id. at 764, 124 S.Ct. 2204 (quoting Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. at 553, 98 S.Ct. 1197 (alterations in Department of Transportation v. Public Citizen)). For the same reasons, we also reject petitioners’ contention that the new highways should have been considered as “[c]onnected actions.” 40 C.F.R. § 1508.25(a)(1). (2) Induced Growth Petitioners argue that the FAA erred in failing to consider the environmental impacts of induced growth, thereby precluding a true comparison of alternatives and exhibiting bias in favor of the West Bay Site. In fact, the agency did consider the effects of induced growth as part of its analysis of cumulative impacts. See ROD at 62 (“The effects of induced development are included in the summaries of cumulative impacts.... ”). It found that, within the designated 4,000-acre West Bay Site, “all 1,936.4 acres of wetlands could be impacted based on the proposed ultimate build-out scenario.” ROD at 63; see also FEIS at 5-211. Within the West Bay Sector Plan area, the FAA forecast that approximately 18 percent of the wetlands — about 5,118 acres — could be affected by regional development, while 14,-431 acres would remain protected within a conservation area. See ROD at 63; FEIS at 5-211 to -212. Based on these disclosures, we are not persuaded by petitioners’ argument that the agency’s decision to group induced impacts together with cumulative impacts hindered comparison between the Existing Site alternatives and the West Bay Site. Even if the FEIS could have been improved by analyzing induced impacts separately from cumulative impacts, see Letter from Heinz J. Muller, EPA, to Virginia Lane, FAA, at 8 (June 29, 2006) (commenting to that effect), NEPA does not require separate analyses. NEPA requires only that the different types of impacts be considered, which the FAA did. Petitioners further allege that the agency improperly omitted from its analysis the cumulative impact of the proposed airport on surrounding Walton, Washington, Jackson, Calhoun, and Gulf counties. We disagree. The FAA developed “cumulative impact study areas” based on a consideration of drainage basins, the Sector Plan boundaries, census boundaries, noise contours, drive time contours, and consultation with other agencies. See FEIS at 5-198 to -200. This explanation is sufficient for us to conclude that its delineation of the cumulative impact study areas was not arbitrary or capricious. Petitioners’ argument that the FEIS narrowly focused its analysis on wetlands and failed to consider effects on West Bay is also without merit. The agency did in fact identify the potential impacts of developing the new airport on West Bay waters, noting that stormwater runoff may “result in short and long-term surface water quality impacts.” FEIS at 5-108. Although, as other agencies have pointed out, the FAA might have improved its FEIS by including a “complete watershed ‘build-out’ analysis ... for the West Bay alternatives,” Letter from Gail A. Carmody, Dep’t of the Interior, Fish & Wildlife Serv., to Virginia Lane, FAA, at 3 (Jan. 27, 2005), its discussion of runoff impacts on the West Bay watershed is not so lacking in detail that it fails to comply with NEPA’s procedural requirements. See 40 C.F.R. § 1508.25(c); see also Custer County Action Ass’n v. Garvey, 256 F.3d 1024, 1038 (10th Cir.2001) (observing that NEPA “requires agencies preparing environmental impact statements to consider and respond to the comments of other agencies, not to agree with them”); Citizens Against Burlington, Inc. v. Busey, 938 F.2d at 201 (“[T]he FAA, not the EPA, bore the ultimate statutory responsibility for actually preparing the environmental impact statement, and under the rule of reason, a lead agency does not have to follow the EPA’s comments slavishly — it just has to take them seriously.”). c. Mitigation Disclosures An EIS must include a discussion of the “[mjeans to mitigate adverse environmental impacts.” 40 C.F.R. § 1502.16(h). Petitioners argue that the agency miseharacterized the Sponsor’s mitigation plans as bestowing environmental benefits on Bay County, when the planned mitigation would only compensate for the extensive damage the project would cause. They contend that the agency failed to acknowledge scientific evidence that mitigation proposals, such as those put forth by the Sponsor, frequently fail. To the extent that petitioners seek to engage us in a battle of experts regarding the likelihood of success of the Sponsor’s mitigation program, we decline to entertain their arguments, for our role is not to resolve scientific disputes. See Environmental Def. v. U.S. EPA, 369 F.3d 193, 204 (2d Cir.2004); Stewart Park & Reserve Coal., Inc. v. Slater, 352 F.3d at 557-58. Rather, we examine whether the EIS adequately discussed mitigation efforts as required by NEPA. See 40 C.F.R. §§ 1502.14(f), 1502.16(h); see also Robertson v. Methow Valley Citizens Council, 490 U.S. at 352,109 S.Ct. 1835 (noting that NEPA requires only “that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated”). Because the FEIS here at issue includes a thorough discussion of mitigation measures, see, e.g., FEIS app. R, we conclude that it complies with NEPA. d. Sv/pplemental EIS Eleven days after the FAA issued its ROD, ornithologists from Auburn University announced that they had detected ivory-billed woodpeckers in the wetlands of the Choctawatchee River approximately 20 miles northwest of the proposed West Bay Site. On October 19, 2006, petitioners asked the FAA to reinitiate formal consultation with the United States Fish and Wildlife Service (“USFWS”), the government’s expert agency with respect to endangered species, and to prepare a supplemental EIS to consider the effect of the proposed airport development project on the woodpecker. The FAA consequently conducted a “Biological Assessment” pursuant to 16 U.S.C. § 1536(c)(1). On March 2, 2007, the FAA transmitted its Biological Assessment to the USFWS and asked that agency to concur in its conclusion that building the West Bay airport “may affect but [would] not likely [] adversely affect the [ivory-billed woodpecker] if its existence is subsequently confirmed by USFWS.” Letter from Jacqueline M. Sweatfi-Essick, FAA, to Gail Carmody, USFWS, at 2 (Mar. 2, 2007). On May 8, 2007, the USFWS concurred. Shortly thereafter, on May 10, 2007, the FAA formally notified petitioners that it would not prepare a supplemental EIS. The FAA explained that it had shared its Biological Assessment with the USFWS and that both agencies agreed that no further study was needed under the Endangered Species Act or NEPA. Petitioners allege that the FAA’s decision not to prepare a supplemental EIS failed to comply with NEPA. NEPA’s implementing regulations provide that agencies “[s]hall prepare supplements to either draft or final environmental impact statements if ... [t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1). In determining whether to prepare a supplemental EIS, the agency has an obligation to take a “hard look” at the new circumstances and information. See Marsh v. Or. Natural Res. Council, 490 U.S. at 373-74, 109 S.Ct. 1851. We review the agency’s decision not to prepare a supplemental EIS in two parts, asking (1) whether the agency took the “hard look” that the new circumstances required and, if so, (2) whether the agency’s decision, based on what it learned, was arbitrary or capricious. See Village of Grand View v. Skinner, 947 F.2d 651, 657 (2d Cir.1991). The record demonstrates that the FAA took a hard look at the new information relating to the ivory-billed woodpecker and that its findings were neither arbitrary nor capricious. Having ascertained the potential habitat types for the ivory-billed woodpecker, the FAA examined field and aerial surveys of the 4,000-acre West Bay Site and 75,000-acre West Bay Sector Plan for evidence of such habitats. It found small areas that would serve as potential habitat, but no areas sufficiently large to support the woodpecker within the surveyed region. See FAA, Biological Assessment for the Ivory Billed Woodpecker at 11 (Mar. 2007). The agency further concluded, based on its review of the scientific literature, that overhead flight noise was unlikely to have an adverse effect on the ivory-billed woodpecker. See id. at 11-13 & nn. 4-10 (citing studies). Petitioners fault the Biological Assessment as arbitrarily circumscribed in scope because the FAA did not consider the effects of secondary development in areas outside the West Bay Sector Plan. The Sector Plan, however, is itself the product of a “state/loeal planning process for potential future development in the region.” Id. at 9. Thus, it already takes into account many of the secondary effects about which petitioners express concern. To the extent that new roads and dwellings may adversely affect the woodpecker in areas beyond the West Bay Sector Plan, such construction may itself become the object of an appropriate study under the Endangered Species Act, NEPA, or other relevant law. At this time, however, we cannot conclude that the FAA’s forecast for future construction prompted by the development of a new airport at the West Bay Site was arbitrary or capricious. See Citizens for Balanced Env’t & Transp., Inc. v. Volpe, 650 F.2d 455, 462 (2d Cir.1981) (rejecting challenge to agency’s forecast where “it [was] evident that [the agency] gave careful consideration to the problem toward which the data was directed”). Having concluded that the FAA complied with NEPA’s procedural requirements, we turn to the question of whether the agency’s challenged decision complies with the AAIA. D. The Airport and Airway Improvement Act Challenge Under the AAIA, the Secretary of Transportation may approve an application for an airport development project that is found to have a significant adverse effect on natural resources, including fish and wildlife, natural, scenic, and recreation assets, water and air quality, or another factor affecting the environment, only after finding that no possible and prudent alternative to the project exists and that every reasonable step has been taken to minimize the adverse effect. 49 U.S.C. § 47106(c)(1)(B) (emphasis added). In this case, the FAA found that building an airport at the West Bay Site “would have significant adverse impacts in the categories of water quality, biotic communities, endangered and threatened species, wetlands, floodplains, and construction impacts.” ROD at 68. Nevertheless, because it determined that “none of the build alternatives can be deemed clearly environmentally superior” and “because only the West Bay Site 8,400 foot Alternative meets both the FAA’s and the Airport Sponsor’s purposes and needs, the FAA [found] that no possible and prudent alternative exists to the Proposed Project.” ROD at 68-69. Petitioners submit that the FAA’s finding that there is no prudent alternative is arbitrary and capricious because the FAA improperly (1) considered social impacts in reaching its conclusion that no alternative was environmentally superior to the West Bay Site and (2) deferred to the Sponsor’s preference for an 8,400-foot runway. In short, petitioners object to the FAA’s consideration of non-environmental factors in its analysis of alternatives. Thus, at issue is the scope of the term “prudent” in § 47106(c)(1)(B). 1. Defining “Prudent” for Purposes of Assessing Alternatives a. FAA Orders Define “Prudent” to Support Consideration of Both Environmental and Norir-Environmental Factors The AAIA does not define the phrase “prudent alternative,” see 49 U.S.C. § 47102 (definitions), nor has the FAA promulgated regulations interpreting it. In 1980, however, the agency issued Order 5050.4, which served as an instructional manual to guide FAA officials and included a definition of “prudent alternative” as used in § 47106(c)(1)(B). See FAA Order 5050.4, Airport Environmental Handbook, 45 Fed.Reg. 56624 (Aug. 25, 1980) (“Order 5050.4”). The interpretive order explained that a “prudent” alternative reflects “sound judgment” and that an alternative “may not be prudent ... because of safety, policy, environmental, social, or economic consequences.” Id. at 56652. This definition remained unchanged when the FAA issued Order 5050.4A in 1985 to amend the Airport Environmental Handbook. See FAA Order 5050.4A, Airport Environmental Handbook ¶ 83(b) (Oct. 8,1985) (“Order 5050.4A”). Subsequently, the agency “substantially update[d] and revise[d] ... and cancelled] Order 5050.4A” by implementing Order 5050.4B, which became effective on April 28, 2006. FAA Order 5050.4B, National Environmental Policy Act (NEPA) Implementing Instructions for Airport Projects at Cover Memorandum (2006), http://www. faa.gov/airports_airtraffic/ airports/resources/publications/orders/environmentaL5050_4 (“Order 5050.4B”). This order describes a “prudent” alternative as one reflecting “rationale ] judgment” and lists the following factors to aid FAA officials “to decide if an alternative is prudent:” 1. Does it meet the project’s purpose and need? 2. Does it cause extraordinary safety or operational problems? 3. Are there unique problems or truly unusual factors present with the alternative? 4. Does it cause unacceptable and severe adverse social, economic, or other environmental impacts? 5. Does it cause extraordinary community disruption? 6. Does it cause added construction, maintenance, or operational costs of an extraordinary magnitude? or 7. Does it result in an accumulation of factors that collectively, rather than individually, have adverse impacts that present unique problems or reach extraordinary magnitudes? Id. ¶ 1007.e(5)(a). All iterations of Order 5050.4 thus interpret the term “prudent” to permit consideration of non-environmental factors when assessing alternatives. We proceed to consider what, if any, deference is owed these interpretive orders. b. The FAA’s Orders Defining “Prudent” to Include Non-Environmental Factors Merit Skidmore Deference The FAA’s orders, as agency manuals without the force of law, are not afforded deference under Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Nevertheless, we conclude that the definition of “prudent” found in these orders is entitled to deference pursuant to Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). See Friends of Richards-Gebaur Airport v. FAA, 251 F.3d at 1186 (according Order 5050.4A Skidmore deference); see also Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000); Boykin v. KeyCorp, 521 F.3d 202, 208 (2d Cir.2008). Under Skidmore, the weight courts accord an agency interpretation depends on “the thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” 323 U.S. at 140, 65 S.Ct. 161. Our analysis of the Skidmore factors in this case leads us to conclude that the FAA’s interpretation of the phrase “prudent alternative” has a great deal of persuasive weight. As already noted, the statute does not define the term “prudent,” nor does it limit the factors that the agency may consider in assessing whether an alternative is imprudent. The absence of statutory guidance provides the FAA, which is charged with the statute’s administration, with flexibility to implement a broad interpretation of the term. See Estate of Landers v. Leavitt, 545 F.3d 98, 105 (2d Cir.2008) (under Skidmore, “we construe the statute in the first instance,” and where the text does not resolve the issue, we give “effect to [the agency’s] nonlegislative interpretation to the extent we find it persuasive”). Moreover, the agency’s interpretation is longstanding. See id. at 107; see also North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 522 n. 12, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982) (“In construing a statute, this Court normally accords great deference to the interpretation, particularly when it is longstanding, of the agency charged with the statute’s administration.”). The FAA first defined “prudent” in 1980, modifying that definition only once, in 2006. See Order 5050.4B Cover Memorandum (observing that Order 5050.4A has served FAA “well for over 20 years”). Throughout, the agency has provided for a number of non-environmental factors to be considered in determining whether an alternative is prudent. Finally, the agency’s definition is “the product of an interpretation that is relatively formal within the universe of informal interpretations.” Estate of Landers v. Leavitt, 545 F.3d at 110. Specifically, the FAA’s interpretation of “prudent” for purposes of considering alternatives is set forth in a manual rather than, for example, a nonprecedential letter ruling. Moreover, the interpretation is generally applicable and not an ad hoc position. See Chauffeur’s Training Sch., Inc. v. Spellings, 478 F.3d 117, 129 (2d Cir.2007) (observing that agency interpretation is entitled to greater Skidmore deference when “the interpretation in question is not merely ad hoc but ... is applicable to all cases”). These circumstances all support Skidmore deference. 2. Petitioners’ Argument that the FAA’s Interpretation Is Contrary to Law Is Without Merit On appeal, petitioners do not dispute that the FAA’s interpretative orders define “prudent” to include non-environmental factors. Indeed, their opening brief makes no reference to these orders, and it is only in their reply brief that petitioners acknowledge the orders, which they note were “brought to our attention by Intervenor’s brief.” Pet’rs’ Reply Br. at 8. In so doing, they assert that the orders support their contention that only the FAA’s purpose and need, not those of the Sponsor, are relevant to assessing prudent alternatives. We address that argument infra in Part II.D.3.b of this opinion. We first address petitioners’ arguments that the agency’s definition of the term “prudent” is not a valid interpretation of the AAIA and contravenes the Supreme Court’s holding in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). a. The AAIA Does Not Preclude Consideration of Non-Environmental Factors in Assessing Prudent Alternatives Petitioners argue that the “AAIA’s unambiguous terms and structure both demonstrate that when analyzing section 47106(c)(1)(B) the Secretary is to consider effects to the natural rather than the social environment.” Pet’rs’ Br. at 30. We disagree. Petitioners’ argument conflates two separate inquiries mandated by § 47106(c)(1)(B): first, whether the proposed project would “have a significant adverse effect on natural resources,” 49 U.S.C. § 47106(c)(1)(B); and second, where the answer is yes, whether a “possible and prudent alternative to the project exists,” id. It is the first inquiry that must focus exclusively on natural resources. Here, the FAA found that the proposed construction of a new airport at the West Bay Site would have a significant adverse effect on such resources. ROD at 68. Having made that determination, the FAA was required to conduct a second inquiry: whether a possible and prudent alternative to the proposed project exists. As discussed above, the statutory text does not direct the agency to consider effects only on natural resources in conducting this inquiry. Thus, we identify no textual obstacle to according Skidmore deference to the broader definition of “prudent” reflected in FAA Orders 5050.4A and 5050.4B. b. The Agency’s Definition of “Prudent” to Include Non-Environmental Factors Is Not Precluded by the Supreme Court’s Decision in Over-ton Park Petitioners argue that Congress intended the word “prudent” in § 47106(c)(1)(B) to be construed in light of the Supreme Court’s decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136, which interpreted that term as used in the Department of Transportation Act (“DOT Act”) and the Federal-Aid Highway Act. Those provisions are similar to § 47106(c)(1)(B), providing that the Secretary of Transportation shall not approve any program or project that requires the use of any public parkland unless there is no “feasible and prudent alternative.” 23 U.S.C. § 138(a)(1); 49 U.S.C. § 303(c)(1) (“prudent and feasible alternative”); see also 401 U.S. at 411, 91 S.Ct. 814. In Overton Park, the Supreme Court held that an alternative was prudent “unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes.” 401 U.S. at 413, 91 S.Ct. 814. We conclude that Overton Park’s interpretation of “prudent” as used in the DOT Act and the Federal-Aid Highway Act does not constrain the FAA in its analysis of prudent alternatives under the AAIA. The DOT Act and the Federal-Aid Highway Act restrict the use of specifically designated areas: publicly owned land of a public park, recreation area, wildlife refuge, or land of an historic site. See 49 U.S.C. § 303(c); 23 U.S.C. § 138(a). Precisely because parkland is publicly owned, “there will always be a smaller outlay required from the public purse when parkland is used [for a highway] since the public already owns the land and there will be no need to pay for right-of-way.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 412, 91 S.Ct. 814 (footnote omitted). Moreover, “since people do not live or work in parks, if a highway is built on parkland no one will have to leave his home or give up his business,” Id. In sum, in most cases of highway construction, considerations of non-environmental factors such as “cost, directness of route, and community disruption will indicate that parkland should be used for highway construction whenever possible.” Id. at 411-12, 91 S.Ct. 814. Thus, the Supreme Court concluded that if the DOT Act and the Federal-Aid Highway Act were “to have any meaning,” the costs or community disruption to a non-parkland alternative must reach “extraordinary magnitudes.” Id. at 413, 91 S.Ct. 814. The AAIA does not implicate the same considerations identified in Overton Park. Section 47106(c)(1)(B) restricts the use of any land with natural resources, whether publicly or privately owned. See Citizens Against Burlington, Inc. v. Busey, 938 F.2d at 205 (noting distinction). Thus, it is not always the case, as it was in Overton Park, that the proposed project would pose less cost or community disruption than any alternatives such that, when taking into account all the various factors, the proposed project will always be a more attractive option than the alternatives. Moreover, § 47106(c)(1)(B) deals with restrictions on airport development projects, while the statutes that were at issue in Overton Park dealt with restrictions on highway projects. The factors involved in locating an appropriate site for an airport are many and complex. As evidenced in this case, significant safety considerations are at issue in the construction or expansion of an airport. Notably, runways must be designed and built according to certain specifications to avoid injury to persons or property “in the event an aircraft undershoots, overshoots, or deviates from a taxiway or runway.” 65 Fed.Reg. 38,636, 38,-649. It can be difficult to find a large enough plot of land that is also in close proximity to urban centers that the airport would service. Because of the different considerations involved in airport projects, we decline to conclude that Overton Park precludes the FAA’s adoption of a broader definition of “prudent” for purposes of the AAIA. We proceed to consider whether the FAA’s decision to approve the Sponsor’s application was arbitrary or capricious using the agency’s definition in its interpretive orders. 3. The FAA’s Finding as to the Lack of Prudent Alternatives Was Not Arbitrary and Capricious The FAA concluded that there was no prudent alternative to the proposed project at the West Bay Site because “none of the build alternatives can be deemed clearly environmentally superior” and “because only the West Bay Site 8,400 foot Alternative meets both the FAA’s and the Airport Sponsor’s purposes and needs.” ROD at 68-69. Petitioners challenge both findings as arbitrary and capricious. We address each objection in turn. a. The FAA Did Not Act Arbitrarily or Capriciously in Considering Social Impacts as Well as Impacts to Natural Resources in Assessing Prudent Alternatives Petitioners submit that the FAA erred in concluding that there were no “environmentally superior” alternatives to the Sponsor’s proposal because that determination improperly equated social impacts with impacts to natural resources. ROD at 68. They contend that, as between the Existing Site alternatives and the Sponsor’s West Bay Site, the former “would cause far less harm to natural resources.” Pet’rs’ Br. at 28. Even granting petitioners’ argument that it may have been inaccurate for the FAA to label “impacts to people and human communities” as “environmental,” ROD at 35, that flaw does not render the FAA’s ultimate approval decision arbitrary or capricious. For reasons already discussed, the agency was permitted to consider social impacts in assessing whether alternatives were prudent. See supra at 566. Furthermore, neither § 47106(c)(1)(B) nor the agency’s interpretive orders require the FAA to identify an option as prudent because it has the lesser adverse effect on natural resources when, as in this case, it has a significant adverse effect on human communities. The interpretive orders contemplate that the prudence of an alternative will be assessed by reference to a variety of factors. See Order 5050.4A (“The environmental documentation must show that no feasible and prudent alternative exists when all factors ... are considered.” (emphasis added)); Order 5050.4B (instructing agency officials to consider whether “an accumulation of factors that collectively, rather than individually, have adverse impacts that present unique problems or reach extraordinary magnitudes”). In any event, the agency’s decision to approve the Sponsor’s application ultimately did not rest on the social or environmental impacts posed by construction of a new airport at the West Bay Site. The agency determined, well within reason, that the “dissimilar nature of the impacts associated with the Existing Site and the West Bay Site prevents a meaningful direct comparison of the impacts of the alternatives”; thus, it found that the distinct disadvantages posed by both locations were in equipoise. ROD at 35 (observing that “[a]t the Existing Site, the primary considerations relate to impacts to people and human communities,” including displacement of certain persons from their homes, “whereas considerations at the West Bay Site relate primarily to natural communities and values”); see also id. Tables 4 & 5 (providing side-by-side comparison of the alternatives’ social and environmental impacts). That conclusion prompted the FAA to look at the purposes and needs of the proposed project and to conclude that, of all the possibilities under consideration, “only the West Bay Site 8,400 foot Alternative meets both the FAA’s and the Airport Sponsor’s purposes and needs.” ROD at 68-69. b. The FAA Did Not Act Arbitrarily or Capriciously in Evaluating the Project’s Purpose and Need In light of the adverse impacts to natural resources posed by the West Bay Site and the adverse s'ocial impacts posed by the Existing Site alternatives, the FAA decided to accord “weight to the ability of the West Bay Site alternatives to provide future flexibility for expansion, current and future land use compatibility, decreased complexity in the airspace environment, and satisfaction of the Airport Sponsor’s goals and objectives.” ROD at 35. Petitioners assert that the FAA’s “deference to the Sponsor’s preferences violates the AAIA” and cannot be used to rule out alternatives. Pet’rs’ Br. at 33, 35. The argument is unconvincing. Although Order 5050.4A does not specifically list “purpose and need” as a factor in the analysis of prudent alternatives — as Order 5050.4B clearly does — it does instruct the FAA to consider the “policy” consequences of a proposal. In the AAIA, Congress declared that it is the policy of the United States that airport development projects be carried out “to foster competition.” 49 U.S.C. § 47101(d). Consistent with this national policy, the FAA appropriately considered the Sponsor’s goal, specifically, that in undertaking construction necessary to comply with FAA. Runway Safety Area standards, the Sponsor would create an airport that could also attract new air carrier service domestically and internationally. To achieve its objective, the Sponsor identified a need for an 8,400-foot runway to accommodate wide-body aircraft capable of nonstop, international travel. See ROD at 18. The FAA did not act arbitrarily or capriciously in considering this objective in identifying prudent alternatives because it was consistent with the federal purpose of fostering competition. This is not "to suggest that a Sponsor’s objectives can, by themselves, necessarily render other alternatives imprudent. In determining the existence of prudent alternatives, a reviewing agency should appropriately “exercise a degree of skepticism in dealing with self-serving statements from a prime beneficiary” of a proposed project. Simmons v. U.S. Army Corps of Eng’rs, 120 F.3d 664, 669 (7th Cir.1997) (internal quotation marks omitted). But skepticism does not automatically render private objectives irrelevant. The AAIA entrusts the agency with the responsibility for assessing prudence by deciding for itself the appropriate weight to accord myriad relevant factors. We identify no abdication of that duty in this case. Indeed, the detailed ROD indicates that the FAA’s challenged decision was largely informed by the agency’s determination that none of the alternatives to the proposed new airport met its own purposes and needs. In reaching this conclusion, the FAA focused primarily on its own statutory mandate to serve the United States’ policy that airports be designed and built to enhance safety and security, to minimize noise disturbances to surrounding communities, and to maintain the flexibility to accommodate changes in demand and new aircraft types. See 49 U.S.C. § 47101(a). The FAA identified specific needs relevant to these statutory purposes: the need to ensure that the existing Panama City Airport complied with FAA runway safety requirements, the need to avoid airspace conflicts involving the existing airport and the Tyndali Air Force Base, the need to accommodate larger aircraft and greater service demand in the Bay County area, and the need to minimize noise and residential displacement in the event of any airport expansion. See ROD at 17-18. Upon consideration of these needs, the agency determined that, without considerable expansion of its runway safety areas, the existing airport could not comply with FAA requirements, see id. at 37; FEIS 2-7 to -9, thereby seriously undermining the agency’s highest policy priority: public safety, see 49 U.S.C. § 47101(a)(1) (stating that “safe operation of the airport and airway system is the highest aviation priority”). The FAA further found that the Existing Site alternatives failed to meet the FAA’s goal of minimizing airspace conflicts with nearby Tyndali Air Force Base. See ROD at 35. It also found that the Existing Site alternatives would not be able to expand to meet anticipated growth in public demand for air services without exceptional difficulty. See ROD at 34-35. Thus, the FAA concluded that the Existing Site alternatives were not prudent because they were unable to meet both the agency’s purposes and needs and those of the Sponsor. In light of these findings, which are supported by the record, we cannot conclude that the approval of the West Bay Site was arbitrary or capricious. III. Conclusion To summarize, we conclude as follows: 1. The FAA complied with the procedural requirements of NEPA in evaluating the Sponsor’s proposal to build a new airport at the West Bay Site. 2. The FAA’s determination that no prudent alternatives to the proposed West Bay Site existed was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. Accordingly, we reject petitioners’ challenge to the FAA order permitting the Sponsor to engage in the proposed construction. The petition for review of that order is Denied. . “An EMAS is designed to slop an overrunning aircraft by exerting predictable deceleration forces on its landing gear as the EMAS material crushes.” FAA, Engineered Materials Arresting Systems (EMAS) for Aircraft Overruns, Advisory Circular No. 150/5220-22A at 2 (Sept. 30, 2005), available at www. faa.gov (follow "Advisory Circulars” hyperlink). . A "jurisdictional wetland” is a wetland area subject to the jurisdiction of the United States under the Clean Water Act. See Rapanos v. United States, 547 U.S. 715, 763, 765-66, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (Kennedy, J., concurring). The Army Corps of Engineers defines wetlands as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” 33 C.F.R. § 328.3(b). The parties do not dispute the number of acres of jurisdictional wetlands that would be affected by construction of the proposed airport. . The Florida DEP is the agency with primary responsibility for administering the state's water resources. See Fla. Stat. §§ 373.026, 403.061. Among other things, it promulgates the state's water quality standards pursuant to the Clean Water Act. See id. § 403.061(31). . Indirect impacts or effects (the two words, as used in the regulations, are synonymous, see 40 C.F.R. § 1508.8), are those that are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. Id. § 1508.8(b). A cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. Id. § 1508.7. . It is far from certain that the ivory-billed woodpecker is not an extinct species. See, e.g., Laura Farrar, Without Proof, an Ivory-Billed Boom Goes Bust, N.Y. Times, Jan. 23, 2008, at A14. . The parties do not dispute that alternatives to the proposed West Bay Site were "possible.” See FAA Order 5050.4, Airport Environmental Handbook, 45 Fed.Reg. 56,624, 56,652 (Aug. 25, 1980) ("A construction alternative ... may be feasible if, as a matter of sound engineering principles, it can be built.”); FAA Order 5050.4B, National Environmental Policy Act (NEPA) Implementing Instructions for Airport Projects ¶ 1007.-e(4)(a) (2006), http://www.faa.gov/airports_ airtraffíc/airports/resources/publications/ orders/environmentaL5050_4/ ("[An] alternative may be possible if, as a matter of sound engineering principles, it can be built.”). . There is some record ambiguity as to which interpretive order the FAA relied on in issuing its ultimate approval of the Sponsor's construction of a new airport at the West Bay Site. Although Order 5050.4B was in effect by the time the FAA issued its September 2006 ruling, the ROD indicates that the FEIS was informed by Order 5050.4A, which was in effect during most of the time that statement was being prepared. We need not pursue the matter, however, because both orders interpret “prudent” to provide for consideration of non-environmental factors.

United States v. Cundiff

OPINION BOYCE F. MARTIN, JR., Circuit Judge. After eight years of failed negotiations and ignored orders, the United States sued George Rudy Cundiff (who goes by Rudy) and his son, Christopher Seth Cundiff (who goes by Seth), seeking injunctive relief and civil penalties against them for discharging “pollutants” into “waters of the United States” without a permit in violation of the Clean Water Act. 33 U.S.C. § 1362. The district court granted summary judgment for the government, imposed injunctive relief in the form of a restoration plan for the Cundiffs’ wetlands, and imposed a civil penalty of $225,000. All but $25,000 of that penalty was suspended, however, provided that the Cun-diffs implemented the restoration plan. The district court also dismissed the Cun-diffs’ array of statutory, common law, and constitutional counterclaims. While the original appeal in this case was pending, the Supreme Court issued its splintered ruling in Rapanos v. United, States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), which defined the Act’s jurisdiction over “waters of the United States.” In light of Rapanos, we returned the case to the district court to reconsider whether jurisdiction was proper over the Cundiffs’ wetlands. The district court determined that it was because the Cundiffs’ wetlands were in fact waters of the United States, and the Cundiffs appealed. We affirm the district court on all grounds. I. Defendants Rudy and Seth Cundiff own two adjacent tracts of land in Muhlenberg County, Kentucky. Their properties together sit next to Pond and Caney Creeks, which are tributaries of the Green River. The Green River, in turn, flows into the Ohio River. In 1990, Rudy Cundiff bought the southern tract, which contains roughly eighty — five acres of wetlands and an upland area where his house sits. When Rudy bought it, portions of the wetlands contained exceptionally acidic orangish to reddish colored water that had drained out of an abandoned coal mine located on a neighbor’s nearby property. As a result, locals referred to the Cundiffs’ property as a putrid eyesore, and this stagnant, discolored water caused the wetlands to become a festering mosquito haven — though the Cundiffs knew all this when they bought it. Shortly after his purchase, Cundiff began excavating drainage ditches and clearing trees to make the wetlands suitable for farming. In October 1991, federal officials from the Army Corps of Engineers and state officials from the Kentucky Division of Water observed ditches, artificially filled wetlands, and mechanically cleared land on the wetlands. The Corps suspected possible Clean Water Act violations. Rudy had failed to obtain a section 404 permit as required for such dredging and filling activities, and further inspection revealed that Cundiff had excavated ditches in the wetlands and placed dredged material into them as filler (known as “sidecasting”). Consequently, the Corps sent him a cease- and-desist letter “specifically prohibiting any further activity involving the placement of excavated or fill material into these jurisdictional wetlands” without a federal permit. Federal and state officials then began meeting with Cundiff in 1992, though they reached no agreement. Instead, he insisted on converting the wetlands into farmland and continued to drain and clear the property. The Corps referred the matter to the Environmental Protection Agency. Over the next several years, Cundiff continued his draining and ditch digging activities, simply ignoring whatever government directives came his way. In 1997 he planted wheat on the southern tract, and government officials observed downed trees in that area. The EPA issued an Order of Compliance informing him that he had violated the Clean Water Act by depositing fill material into waters of the United States without authorization, and it directed him to “immediately cease participating in or causing any additional discharges” of pollutants. In 1998 Rudy’s son, Seth, purchased a tract of land located north of Rudy’s which contains roughly 103 acres of wetlands. (Seth leases this property back to Rudy for the exact amount of the mortgage payment.) Rudy quickly began excavating and clearing that property as well, activity of which Seth was aware. In October 1998, officials from the EPA informed Rudy Cundiff that he needed a permit for this work too. Rudy — somewhat surprisingly — said that, though he knew he needed a permit, he thought the Corps would never grant him one so he planned on digging his ditches anyway. He eventually completed a two-hundred foot ditch through the wetlands that extended all the way to Caney Creek, and the dredged material was “sidecast” into the wetlands to dry them out to make them arable. In 1999, Kentucky officials told Cundiff that he was destroying wetlands without a permit in violation of state law (he ignored this too), and the EPA issued additional Orders of Compliance to both Rudy and Seth Cundiff requiring them to cease their excavation activities and to restore the unauthorized ditches by refilling them. The Cundiffs responded to these orders as they had to the others. The United States finally sued both Rudy and Seth Cundiff, alleging that they violated Section 301(a) of the Clean Water Act for discharging pollutants into waters of the United States without a permit. 33 U.S.C. § 1311(a). The district court granted the United States’s motion for summary judgment, thus finding the Cun-diffs liable, and, after a bench trial, permanently enjoined them from discharging dredged or fill material or any other pollutants into waters of the United States (which it concluded that the Cundiffs’ wetlands were) and imposed a civil penalty of $225,000 but suspended $200,000 of that pending the Cundiffs’ adequate implementation of the restoration plan. The defendants appealed, and while that appeal was pending, the Supreme Court decided Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), which addressed the scope of the term “waters of the United States” in the Clean Water Act. The parties jointly moved for a limited remand from this Court so the district court could reconsider whether jurisdiction over the wetlands was proper, and this Court remanded the case on that question. The district court concluded that the Cun-diffs’ wetlands were “waters of the United States,” and the Cundiffs now appeal the district court’s: (1) grant of summary judgment in the government’s favor; (2) imposition of a civil penalty and injunctive relief; and (3) the dismissal of their counterclaims. II. We review the district court’s legal conclusions de novo, Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir.2005), and its factual findings for clear error. Id. The imposition of a monetary penalty and injunctive relief is reviewed for abuse of discretion. United States v. Midwest Suspension & Brake, 49 F.3d 1197, 1205 (6th Cir.1995); United States v. Norris, 937 F.2d 286, 288 (6th Cir.1991). We review the dismissal of the Cundiffs’ counterclaims de novo. Blakely v. United States, 276 F.3d 853, 863 (6th Cir.2002). III. Congress enacted the Clean Water Act in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Section 301(a) of the Act prohibits “the discharge of any pollutant by any person” except in compliance with the Act. 33 U.S.C. § 1311(a). “[Discharge of any pollutant” is broadly defined to mean “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A). In turn, “pollutant” is defined to include not only traditional contaminants, but also solids such as “dredged spoil, ... rock, sand [and] cellar dirt.” 33 U.S.C. § 1362(6). The Act defines “navigable waters” to mean “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). The Act also sets up two permit schemes. Section 404(a) authorizes the Secretary of the Army (through the United States Army Corps of Engineers), or a state with an approved program, to issue permits “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a). Section 402 authorizes the Environmental Protection Agency (or a state with an approved program) to issue a National Pollutant Discharge Elimination System (NPDES) permit for the discharge of pollutants other than dredged or fill material. 33 U.S.C. § 1342. The Corps and the EPA share responsibility for implementing and enforcing Section 404. See, e.g„ 33 U.S.C. § 1344(b)-(c). Although at one time the term “navigable waters” included only waters that were navigable in fact, The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999 (1870), “navigable waters” is a defined term in the Act that expressly includes all “waters of the United States.” 33 U.S.C. § 1362(7). The Supreme Court has repeatedly recognized that, with this definition, Congress “evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term.” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). As a result, the Corps and EPA have put out substantively equivalent regulatory definitions of “waters of the United States,” compare 33 C.F.R. § 328.3(a), with 40 C.F.R. § 230.3(s), that define it to encompass not only traditional navigable waters of the kind susceptible to use in interstate commerce, but also tributaries of traditional navigable waters and wetlands adjacent to covered waters. See 33 C.F.R. § 328.3(a)(1), 328(3)(a)(5), 328(a)(7). A. Are the Wetlands “Waters of the United States”? 1. Rapanos Rapanos involved two consolidated cases in which the Act had been applied to actual or proposed discharges of pollutants into wetlands adjacent to nonnavigable tributaries of traditional navigable waters. 547 U.S. at 729-30, 126 S.Ct. 2208. Although there was no single majority opinion, all the Justices agreed that the statutory phrase “waters of the United States” encompasses some waters not navigable in the traditional sense. See id. At 731 (Scalia, J., plurality opinion); id. at 767-68, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment); id. at 793, 126 S.Ct. 2208 (Stevens, J., dissenting). The four-Justice plurality interpreted the Act to cover “relatively permanent, standing, or continuously flowing bodies of water,” 547 U.S. at 739, 126 S.Ct. 2208, that are connected to traditional navigable waters, id. at 742, 126 S.Ct. 2208, as well as wetlands with a continuous surface connection to such water bodies. Id. at 732 n. 5, 126 S.Ct. 2208 (observing that the Act’s reference to “relatively permanent” waters “d[id] not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,” or “seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months”). Justice Kennedy, writing only for himself, interpreted the term to cover wetlands that “possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” Id. at 759, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment) (quoting Solid Waste Agency v. United States Army Corps, of Eng’rs., 531 U.S. 159, 167, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001)). He explained: [Wjetlands possess the requisite nexus, and thus come within the statutory phrase “navigable waters,” if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.” When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.” Id. at 780, 126 S.Ct. 2208. And Justice Kennedy, relying on Riverside Bayview, concluded that the Corps’ assertion of jurisdiction over “wetlands adjacent to navigable-in-fact waters” may be met “by showing adjacency alone.” Id. On the other hand, where the wetlands are adjacent to nonnavigable tributaries, “[ajbsent more specific regulations,” Justice Kennedy would require the government to “establish a significant nexus on a case-by-case basis.” Id. He therefore concurred in the judgment vacating the lower court’s decision and voted to remand the case for more fact-finding on whether the government could prove the existence of a significant nexus between the wetlands and nearby navigable-in-fact waters. The dissenters, with Justice Stevens writing, would have upheld the determination that the wetlands at issue were “waters of the United States” as a reasonable agency interpretation of the Act under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In the dissenters’ view, any “significant nexus” requirement — insofar as the Act contained one — would be “categorically satisfied as to wetlands adjacent to navigable waters or their tributaries.” Rapanos, 547 U.S. at 807-08, 126 S.Ct. 2208. Parsing any one of Rapanos’s lengthy and technical statutory exegeses is taxing, but the real difficulty comes in determining which — if any — of the three main opinions lower courts should look to for guidance. As the Chief Justice observed: “It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis.” Id. at 758, 126 S.Ct. 2208 (Roberts, C.J., concurring) (citing Grutter v. Bollinger, 539 U.S. 306, 325, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), and Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)). The dissent, for its part, offered its view of what lower courts should do: In these cases, however, while both the plurality and Justice Kennedy agree that there must be a remand for further proceedings, their respective opinions define different tests to be applied on remand. Given that all four Justices who have joined this opinion would uphold the Corps’ jurisdiction in both of these cases-and in all other cases in which either the plurality’s or Justice Kennedy’s test is satisfied-on remand each of the judgments should be reinstated if either of those tests is met. Rapanos, 547 U.S. at 810, 126 S.Ct. 2208 (emphasis added). Fortunately, as the following section explains, jurisdiction is proper here under each of the primary Rapanos opinions and therefore we do not have to decide here, once and for all, which test controls in all future cases. 2. Marks-meets-Rapanos In Marks v. United States, the Supreme Court instructed that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” 430 U.S. at 193, 97 S.Ct. 990 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). But all is not always so rosy. The Supreme Court has oft-noted Marks’ limitations, stating that it is “more easily stated than applied to the various opinions supporting the result,” Grutter, 539 U.S. at 325, 123 S.Ct. 2325 (2003), and that “[i]t does not seem useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it,” Nichols v. United States, 511 U.S. 738, 745, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (quotations omitted). In its short life, Rapanos has indeed satisfied any “bafflement” requirement. The first court to decide what opinion was controlling decided to ignore all of them and instead opted for earlier circuit precedent which it felt was clearer and more readily applied. United States v. Chevron Pipe Line Co., 437 F.Supp.2d 605, 613 (N.D.Tex.2006). The Courts of Appeals have not fared much better. The Ninth Circuit has stated that Justice Kennedy’s test applies in most instances, Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 1000 (9th Cir.2007), while the Eleventh Circuit has held that the Act’s coverage may be established only under his test. United States v. Robison, 505 F.3d 1208, 1219-22 (11th Cir.2007). By contrast, the First and the Seventh Circuits, though differing somewhat in their analyses, have followed Justice Stevens’ advice and held that the Act confers jurisdiction whenever either Justice Kennedy’s or the plurality’s test is met. United States v. Johnson, 467 F.3d 56, 60-66 (1st Cir.2006); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir.2006). This is the approach the district court here followed, largely in reliance on the First Circuit’s thoughtful reasoning. Taken literally, Marks instructs lower courts to choose the “narrowest” concurring opinion and to ignore dissents. Marks, 430 U.S. at 193, 97 S.Ct. 990. But what does “narrowest” mean? Marks considered an earlier Supreme Court obscenity decision, A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), where the Court split on whether a particular work was protected by the First Amendment. In Marks, the Court determined that the Memoirs plurality’s standard controlled because, while two Justices would have held that the First Amendment applies equally to all materials — whether obscene, hardcore, or Grated, id. at 433, 86 S.Ct. 975 (Douglas, J., concurring); id. at 421, 86 S.Ct. 975 (Black, J., concurring)— the plurality would have afforded protection only to non-obscene materials, id. at 419-20, 86 S.Ct. 975, and therefore that concurring opinion was doctrinally the “narrowest.” The so-called Marks rule in fact derived from the Court’s earlier opinion in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Gregg had interpreted Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), in which a majority found that Georgia’s death penalty scheme was unconstitutional. Two Justices believed that the death penalty was per se unconstitutional, while three others merely stated that it was unconstitutional as then administered in Georgia. So the Gregg Court stated that “[sjince five Justices wrote separately in support of the judgments in Furman, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.... ” 428 U.S. at 169 n. 15, 96 S.Ct. 2909. As these cases indicate — and contrary to assertions by the Cundiffs and their ami-ci — Marks does not imply that the “narrowest” Rapanos opinion is whichever one restricts jurisdiction the most. But it also makes little sense for the “narrowest” opinion to be the one that restricts jurisdiction the least, as the government’s ami-ci allege; the ability to glean what substantive value judgments are buried within concurring, plurality, and single-Justice opinions would require something like divination to be performed accurately. Instead, “narrowest” opinion refers to the one which relies on the “least” doctrinally “far-reaching-common ground” among the Justices in the majority: it is the concurring opinion that offers the least change to the law. See Johnson v. Bd. of Regents of the Univ. Of Ga., 263 F.3d 1234, 1247 (11th Cir.2001); Johnson, 467 F.3d at 63. In both Memoirs and Furman the controlling opinion was less doctrinally sweeping. The Memoirs controlling opinion did not agree that obscenity laws per se violated the Constitution, and the Furman controlling opinion did not agree that the death penalty was per se unconstitutional. Yet problems await. For cases like Furman and Memoirs, Marks’ application is straightforward. But when “one opinion supporting the judgment does not fit entirely within a broader circle drawn by the others, Marks is problematic.” King v. Palmer, 950 F.2d 771, 782 (D.C.Cir.1991) (en banc). Specifically, “Marks is workable — one opinion can be meaningfully regarded as ‘narrower’ than another — only when one opinion is a logical subset of other, broader opinions.” Id. at 781. Where no standard put forth in a concurring opinion is a logical subset of another concurring opinion (or opinions) that, together, would equal five votes, Marks breaks down. Enter Rapanos. Although “in most cases in which [Justice Kennedy] concludes that there is no federal authority he will command five votes (himself plus the four Justices in the Rapanos plurality),” in other cases Justice Kennedy “would vote against federal authority only to be outvoted 8-to-l (the four dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection.” Gerke, 464 F.3d at 725. Indeed, there is quite little common ground between Justice Kennedy’s and the plurality’s conceptions of jurisdiction under the Act, and both flatly reject the other’s view. See Rapanos, 547 U.S. at 756, 126 S.Ct. 2208 (Scalia, J., plurality opinion) (“[Justice Kennedy’s] test simply rewrites the statute.”); id. at 778, 126 S.Ct. 2208 (Kennedy, J., concurring) (“[T]he plurality reads nonexistent requirements into the Act.”). Thus, because Rapanos is not easily reconciled with Marks, the question becomes what to do. Fortunately, we need not reconcile Rapanos with Marks. Here, jurisdiction is proper under both Justice Kennedy’s and the plurality’s tests (and thus also the dissent’s). Recently, this Court addressed an analogous situation: Because the Supreme Court divided 4-1-4 in [Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) ], there has been some confusion about whether the plurality or concurring opinion controls. Most circuits have assumed that Justice Kennedy’s concurrence operates as the controlling precedent, though others have raised doubts about whether his concurrence actually represents the narrowest grounds for decision. We do not need to resolve this issue because regardless of the applicable framework Lopez’s statement must be suppressed. United States v. Pacheco-Lopez, 531 F.3d 420, 427 n. 11 (6th Cir.2008) (citations omitted). As the next section demonstrates, jurisdiction is proper here under both Justice Kennedy’s and the plurality’s tests, so we leave ultimate resolution of the Marks-meebs-Rapanos debate to a future case that turns on which test in-fact controls. 3. Jurisdiction is proper under both tests Justice Kennedy’s test. Under this test, the Clean Water Act applies to wetlands that “possess a significant nexus to waters that are or were navigable in fact or that could reasonably be so made.” Rapanos, 547 U.S. at 758, 126 S.Ct. 2208. This nexus exists “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable.” Id. at 755, 126 S.Ct. 2208. By contrast, “[w]hen ... wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory terms ‘navigable waters.’ ” Id. This standard must be met on a case-by-case basis. Id. The district court found that the Cundiffs’ wetlands have a significant nexus with the navigable-in-fact Green River, via Pond and Caney Creeks, which are tributaries of that river. The court credited the government’s expert who testified that the wetlands perform significant ecological functions in relation to the- Green River and the two creeks, including: temporary and long-term water storage, filtering of the acid runoff and sediment from the nearby mine, and providing an important habitat for plants and wildlife. And the court found that the Cundiffs’ alterations — unauthorized ditch digging, the mechanical clearing of land, and the dredging of material and using it as filler — have undermined the wetlands’ ability to store water which, in turn, has affected the frequency and extent of flooding, and increased the flood peaks in the Green River. Thus, it has “impacted] navigation, crop production in bottomlands, downstream bank erosion, and sedimentation.” United States v. Cundiff, 480 F.Supp.2d 940, 945 (W.D.Ky.2007) (quoting Report of Dr. Lyndon C. Lee, J.A. 172). The district court further credited another government expert’s testimony who stated that Rudy Cundiffs ditch digging had created channels so that the acid mine runoff would largely bypass his wetlands and instead flow more directly into Pond and Caney Creek and thus the Green River. It found that these channels cause “direct and significant impacts to navigation (via sediment accumulation in the Green River) and to aquatic food webs ... that are not adapted to thrive in acid waters and/or sediment-choked environments.” Cundijf, 480 F.Supp.2d at 944 (quoting Lee Report). The record supports this conclusion and the district court found that the government’s witnesses were credible, and so we cannot say that its conclusion was clearly erroneous. The Cundiffs do not really dispute these findings. Instead, they assert that a “significant nexus” may only be proved by “laboratory analysis” of soil samples, water samples, or through other tests. Though no doubt a district court could find such evidence persuasive, the Cundiffs point to nothing — no expert opinion, no research report or article, and nothing in any of the various Rapanos opinions — to indicate that this is the sole method by which a significant nexus may be proved such that the district court’s finding was inherently improper. So the district court properly concluded that the government passed Justice Kennedy’s test. The Plurality’s test. Under this standard, the government must make two showings to establish jurisdiction: “First, that the adjacent channel contains a ‘wate[r] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Rapanos, 547 U.S. at 742, 126 S.Ct. 2208. The first question is whether the adjacent property contains a “water of the United States.” The district court held that jurisdiction was proper under the plurality’s standard because the South Channel (located on the northern tract of the wetlands), and Pond and Caney Creeks were all “relatively permanent bodies of water connected to a traditional interstate navigable water, the Green River.” Cundiff, 480 F.Supp.2d at 945. Regarding the South Channel, the district court found that the water flows through the channel into Pond Creek for all but a few weeks a year, the two creeks are open waterbodies with significant flowing water, and that both flow into the Green River. (Pond Creek itself is navigable in part.) So the first prong of the plurality’s test is met. The second question is whether the wetlands possess a “continuous surface connection” with the Green River and its tributaries. The Cundiffs argue that, because the wetlands are at a different elevation level than the two creeks and it is not readily apparent that water perpetually flows between them, there is no continuous surface connection. The district court, observing that Riverside Bayview stated that it is often ambiguous where the transition between water and dry land exactly exists, 474 U.S. at 132, 135 n. 9, disagreed and held that a continuous surface connection existed. Specifically, the Court observed that the inquiry was whether it was ambiguous where land stopped and water began, because otherwise the plurality’s recognition of these gradual transitions would be “completely evisceratfed].” Cundiff, 480 F.Supp.2d at 947. We agree; the Cundiffs’ argument proves too much. Although the term “continuous surface connection” clearly requires surface flow, it does not mean that only perpetually flowing creeks satisfy the plurality’s test. Indeed, the Rapanos plurality, in tipping its hat to Riverside Bay-view, fashioned its test to determine when wetlands were “waters of the United States,” and therefore implicitly recognized that wetlands are neither navigable-in-fact nor even literally bodies of water. Instead, wetlands are merely “inundated or saturated” soil that can “support ... under normal circumstances ... a prevalence of vegetation typically adapted for life in saturated soil conditions.” 33 C.F.R. § 328.3(b). In other words, the plurality’s test requires a topical flow of water between a navigable-in-fact waterway or its tributary with a wetland, and that connection requires some kind of dampness such that polluting a wetland would have a proportionate effect on the traditional waterway. If the Cundiffs’ restrictive version of the plurality’s test was accurate, then the plurality could have saved itself time and effort by saying that wetlands could never be “waters of the United States” and overruled Riverside Bayview’s holding to the contrary. It did not do that; instead, the plurality went through a lengthy analysis and therefore the standard is broader than the Cundiffs assert. Further undermining their argument is the fact that the district court took note of the South Channel, which provides a largely uninterrupted permanent surface water flow between the wetlands and traditional waterways. The district court also found that the existence of additional (and substantial) surface connections between the wetlands and permanent water bodies “during storm events, bank full periods, and/or ordinary high flows” provides additional evidence of a continuous surface connection. Cundiff, 480 F.Supp.2d at 947. Finally, Cundiff personally went a long way towards creating a continuous surface connection when he dug or excavated ditches to enhance the acid mine drainage into the creeks and away from his wetlands; in determining whether the Act confers jurisdiction, it does not make a difference whether the channel by which water flows from a wetland to a navigable-in-fact waterway or its tributary was man-made or formed naturally. Thus, we affirm the district court’s determination that the Act confers jurisdiction over the Cun-diffs’ wetlands because both tests are met. B. Summary Judgment Was Proper To establish liability under the Act, the government must prove that (1) a person (2) discharged a pollutant (3) from a point source (4) into waters of the United States (5) without a permit. 33 U.S.C. §§ 1311(a), 1362(6), 1362(7), 1344(a), 1362(12). The Cundiffs do not contend that they are not persons (1), nor do they contend that no point source was involved (3), and we have already determined that the wetlands here are waters of the United States (4). The Cundiffs contend that they have not discharged any pollutants (2) and, while they concede that they did not have a permit from the Corps, they assert that their activities fell into one of the relevant exemptions (though not the “recapture” provision) and thus were not required to have one (5). 1. Discharge of a pollutant The Clean Water Act defines the “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A). “Pollutant” includes not only traditional contaminants like “radioactive” or “chemical waste,” but also basic solids like “dredged spoil, ... rock, sand [and] cellar dirt.” 33 U.S.C. § 1362(6). Latching onto “addition,” the Cundiffs argue that the regulation defining a pollutant to include “sidecasting” goes beyond the authority the Act grants. In other words, they argue that it is unreasonable for the agency to interpret “discharge of a pollutant” to cover situations not involving the introduction of foreign material into the area. Sidecasting involves the addition of dredged or excavated dirt from a removal site (here, the ditches the Cundiffs dug), to some disposal site (here, the Cundiffs’ own wetlands). Sidecasting’s purpose is to fill wetlands to dry them out. Although it is plausible to read “addition” as covering only completely foreign materials, that reading is foreclosed because “pollutant” is defined in the Act to specifically include “dredged spoil” — the Cundiffs would read that term out of the Act. Further, the Act is not concerned with mere “material,” but instead with the addition of “pollutants”— material can be benign in one spot and seriously disruptive to the surrounding ecological system in another. As the Fourth Circuit has stated, once you have dug up something, it becomes “dredged spoil,” a statutory pollutant and a type of material that up until then was not present [in the wetlands]. It is of no consequence that what is now dredged spoil was previously present on the same property in [a] less threatening form.... What is important is that once a material was excavated from the wetland, its redeposit in the same wetland added a pollutant where none had been before. United States v. Deaton (“Deaton I”), 209 F.3d 331, 335 (4th Cir.2000); see also Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 920-21 (5th Cir.1983). And even if the statute was ambiguous on whether the prohibition on the “addition” of pollutants included sidecasting, it is nevertheless a reasonable agency interpretation and must be accorded deference. Chevron, 467 U.S. at 843, 104 S.Ct. 2778. The Cundiffs’ other argument is that, if the regulations are nevertheless valid, then their dredging, filling, and mechanized landclearing activities nevertheless fall into the exception to the “discharge of dredged material” for “de min-imis, incidental soil movement occurring during normal dredging operations.” 51 Fed.Reg. 41,206, 41,232 (Nov. 13, 1986), codified at 33 C.F.R. § 323.2(d) (1990). Although this' argument was probably waived, see Thurman v. Yellow Freight Sys., 97 F.3d 833, 835 (6th Cir.1996), the assertion that the Cundiffs merely left some fallback incidental to ditch digging cannot be credited: they actively filled the wetlands with dredged spoil and covered roughly 5.3 acres of wetlands next to about 11,900 feet of ditches. This goes far beyond being “de minimis.” Thus, they discharged a pollutant under the Act. 2. Permit requirement Although the Cundiffs do not dispute that they did not have a valid section 404 permit when digging ditches and clearing their wetlands, they nevertheless argue that their activities fell into one of the statutory exemptions, though not into the “recapture provision.” See 33 U.S.C. § 1344(f)(l)-(2). Specifically, the Cundiffs argue that their activities fall into either the farming exception, § 1344(f)(1)(A), or the drainage ditch maintenance exception, § 1344(f)(1)(C). “The defendants bear the burden of establishing both that they qualify for one of the exemptions of § 1344(f)(1) and that their actions are not recaptured by § 1344(f)(2).” Greenfield Mills, Inc. v. Macklin, 361 F.3d 934, 955 (7th Cir.2004). The farming exception exempts from the permit requirement the “discharge of dredged or fill material” from “normal farming, silviculture, and ranching activities.” § 1344(f)(1)(A). As the statute and regulations both require, the disputed activities “must be part of an established (i.e., on-going) farming, silviculture, or ranching operation” and they cease to be “established when the area on which it was conducted has been converted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume operations.” 33 C.F.R. § 323.4(a)(1)(h). The Cundiffs’ wetlands fail both requirements: before the Cun-diffs took over and began their landclear-ing activities, the land had not been used as a farm for many decades prior and no one disputes that no farming could take place on the wetlands without significant changes — the entire point of Rudy Cun-diffs activities was to significantly alter the wetlands to make them arable. Of course, such activities are not universally impermissible, but they do require a permit. Thus the farmland exception does not apply. Nor does the drainage ditch maintenance exception apply. Section 1344(f)(2)(C) exempts the discharge of dredged or fill material “for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches.” Note the difference in language between the two clauses: while the exemption applies to the maintenance or construction of farm or stock ponds or irrigation ditches, it only applies to the maintenance of drainage ditches and not their construction. The regulations make this explicit. 33 C.F.R. § 323.4(a)(3) (observing exemption for “the maintenance (but not construction) of drainage ditches”). The district court found that the Cundiffs’ activities were not limited to merely maintaining existing and functioning ditches, but instead involved both digging brand new ones and excavating ditches that had no function or ability to function as drainage ditches, and neither can be considered mere “maintenance.” Even if the Cundiffs’ activities fell within either the farming or drainage ditch maintenance exemptions, they would still have been required to get a permit under the “recapture provision,” 33 U.S.C. § 1344(f)(2), which states that a permit is still required whenever a dredging activity has “as its purpose bringing an area of the navigable waters into a use to which it was not previously subject,” and the “flow or circulation of navigable waters may be impaired or the reach of such waters reduced.” Id. To fall within this provision, both elements must be met. See Macklin, 361 F.3d at 949. Here, Rudy Cundiff freely admitted that he excavated the ditches to convert the wetlands into being suitable for crop production, and the method by which he attempted to do SO' — drying the wetlands out to transform them into farmland — obviously would, if successful, “impair[ ]” the “flow or circulation of navigable waters” or “reduce” their reach. 33 U.S.C. § 1344(f)(2). So, even if the Cun-diffs’ activities fell into one of the exemptions above, they still would have been required to have obtained a permit under the recapture provision. And because the government has thus satisfied its prima facie case against the Cundiffs by proving all five required elements, the district court properly granted summary judgment on their liability. C. The District Court Did Not Abuse Its Discretion in Imposing Remedies Remediation orders are reviewed for abuse of discretion. See United States v. Norris, 937 F.2d 286, 288 (6th Cir.1991). Courts have considered three factors when evaluating remediation or restoration proposals: (1) whether the proposal would confer maximum environmental benefits, (2) whether it is achievable as a practical matter, and (3) whether it bears an equitable relationship to the degree and kind of wrong to be remedied. United States v. Deaton (“Deaton II”), 332 F.3d 698, 714 (4th Cir.2003) (citing cases). Here, the district court analyzed each factor based on the evidence in rejecting the Cundiffs’ proposals and accepting the government’s proposed restoration plan. The government’s plan consists primarily of filling in the ditches on the northern tract, cutting branches in the ditches on the southern tract to restore the wetlands, planting trees on the southern tract to replace the ones the Cundiffs removed, restoring previous plant and animal life, and placing riprap (loose rocks assembled as a foundation) where the northern tract’s ditches enter Caney Creek to prevent erosion. The Cundiffs’ challenge to the district court’s judgment is largely a quarrel with the court’s factual findings, which were not clearly erroneous, though they also argue that the government’s plan will not allow them to see sufficient future profits. The Cundiffs also claim that what they were already doing would have led to the restoration of the wetlands. Taking this latter contention first, the district court flatly rejected it, finding instead that the government’s plan would “confer maximum environmental benefits.” And while the amount of money that the Cundiffs might receive in the future is generally included as a factor in equity, the court also found that the Cundiffs’ violations were “intentional, flagrant, egregious, and openly defiant, so as to militate against any equitable considerations.” J.A. 51-52. Thus, in light of these findings and the Clean Water Act’s goal of “restoring and maintaing the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), the district court did not abuse its discretion in entering the remediation order. IV. The Cundiffs’ counterclaims are rather nebulous, but they roughly fall into three categories: (A) Constitutional takings-based counterclaims alleging that the government’s actions constituted an uncompensated taking without due process; (B) duty-based counterclaims alleging that the federal government owed them a mandatory duty to mitigate damage to their property caused by the acid water runoff from the nearby abandoned mine; and (C) tort-based counterclaims alleging liability for the government’s failure to fix the acid mine runoff or for the government’s conduct in enforcing the Act. Each fails as a matter of law. A. Takings Counterclaims The Cundiffs claim that the governments’ actions — either because of the remediation plan or because of the mine’s drainage onto the Cundiffs’ property — constituted an uncompensated taking without due process under the Fifth Amendment. The merits of this argument are specious, but this claim has a bigger problem: The Tucker Act gives the Court of Federal Claims exclusive subject matter jurisdiction over takings claims seeking more than $10,000. 28 U.S.C. § 1491. Although the Cundiffs are not clear about how much they exactly seek, they seek more than $10,000,000 altogether. And the Cundiffs never specifically refuted that this jurisdictional threshold applies, and thus their takings counterclaims were properly dismissed. B. Mandatory Duty Counterclaims The Cundiffs assert that the federal government owed them a mandatory duty to prevent or remediate runoff from the mine from seeping onto their property under the Surface Mining Control and Reclamation Act (“SMCRA”). See 30 U.S.C. § 1270. Although the SMCRA grants a private right of action against the government for the failure to perform mandatory duties, id. at § 1270(a)(2); see also 5 U.S.C. § 702 (providing judicial review to persons who have suffered a legal wrong because of an agency action under the APA), it only authorizes abandoned mine reclamation activities on properties adversely affected by abandoned mines and “for which there is no continuing reclamation responsibility under State or other federal laws.” Id. at § 1234. It furthermore envisions that—while paid for by fees collected from current mine operators—the mine reclamation projects will be undertaken by state governments. See id. at § 1201(f). When a state submits a mine reclamation program consistent with the SMCRA, that state is given the “exclusive responsibility and authority” to implement it. Id. at § 1235(d). Kentucky has an approved reclamation program, so the responsibility and authority over remediating pollutants that drain out of abandoned coal mines like the one near the Cundiffs’ property does not lie with the federal government. Thus, the Cundiffs’ mandatory duty counterclaims were properly dismissed. C. Tort Counterclaims The Federal Tort Claims Act confers jurisdiction on federal courts to hear cases only “under circumstances where the United States, if a private person, would be held liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The Tort Claims Act thus neither creates causes of action against the United States nor provides a means of enforcing federal statutory duties. Rather, it “constitutes consent to suit and is fundamentally limited to cases in which a private individual [would be liable] under like circumstances.” Myers v. United States, 17 F.3d 890, 894 (6th Cir.1994). To succeed, the Cundiffs must therefore show that they have pleaded facts by which a private individual would be liable under Kentucky law. They have not. The gravamen of the Cundiffs’ argument is that the abandoned coal mine seeps acid water onto their property so the United States should be liable. But, as observed above, the United States has never owned nor operated that mine, and there is no cognizable legal theory in Kentucky by which someone could be sued for failing to stop fluid from draining out of some third-party’s abandoned coal mine. Insofar as the Cundiffs assert that though a private individual would not be hable yet nevertheless the federal government should be, the response is two-fold. First, Kentucky has never recognized such a lawsuit, and, second, there cannot be a universal common-law duty on the federal government to clean up anything and everything that adversely affects someone’s property, even when caused by third-parties. Although the Cundiffs cite a plethora of cases where liability attached, see, e.g., City of Ashland v. Smith, 340 S.W.2d 208 (Ky.1960); Louisville & Nashville R.R. v. Bush, 336 S.W.2d 578 (Ky.1960), Cissell v. Grimes, 383 S.W.2d 128 (Ky.1964), in each the liable party either owned the source of the problem or affirmatively created it. Neither is the case here. Thus, the district properly dismissed the tort counterclaims. y. We AFFIRM the district court’s grant of summary judgment to the government and assignment of penalties to the Cun-diffs, along with the district court’s dismissal of the Cundiffs’ counterclaims against the government. . Singer-songwriter John Prine has colorfully recounted Muhlenberg County's sordid ecological history: And daddy won't you take me back to Muh-lenberg County / Down by the Green River where Paradise lay / Well, I'm sorry my son, but you're too late in asking / Mister Peabody’s coal train has hauled it away.... / Then the coal company came with the world’s largest shovel / And they tortured the timber and stripped all the land / Well, they dug for their coal ‘til the land was forsaken / Then they wrote it all down as the progress of man.... John Prine, Paradise, on John Prine (Atlantic Records 1971). . The Pacific Legal Foundation argues that the plurality's test is a logical subset of Justice Kennedy’s test. Amicus Br. at 8. But this is unpersuasive. Not only is there a theoretical possibility that the tests do not align, Johnson, 467 F.3d at 64, the Eleventh Circuit may have addressed such a case. Robison, 505 F.3d at 1223 ("This case arguably is one in which Justice Scalia's test may actually be more likely to result in CWA jurisdiction than Justice Kennedy’s test.”). . The Supreme Court recently denied certiora-ri in two cases presenting this question. United States v. Robison, 521 F.3d 1319 (11th Cir.2008), cert. denied sub nom. as United States v. McWane, - U.S. -, 129 S.Ct. 627, 172 L.Ed.2d 609 (2008); United States v. Lucas, 516 F.3d 316 (5th Cir.2008), cert. denied, - U.S. -, 129 S.Ct. 116, 172 L.Ed.2d 36 (2008). . For instance, if one dropped a poison into the Cundiffs’ wetlands, the record indicates that it would find its way to the two creeks and the Green River, therefore indicating a significant chemical, physical, or biological connection between the wetlands and the nearby navigable-in-fact waters. . Moreover, the Cundiffs' view that any interruption in flow means that jurisdiction under the plurality’s test is improper would improperly exclude seasonal rivers and other such water bodies whose surface connection was not perpetual. At oral argument, the Cun-diffs' counsel conceded that seasonal rivers and like water bodies would be covered by the plurality's test. See Rapanos, 547 U.S. at 732 n. 5, 126 S.Ct. 2208 (Scalia, J., plurality opinion) (observing that the Act’s reference to "relatively permanent” waters "d[id] not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,” or “seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months”) (emphasis in original). . Because the Cundiffs failed to properly raise or develop their Commerce Clause challenge to jurisdiction under the Act — and such a challenge would be rather tenuous anyway, see, e.g., Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005); United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1326-27 (6th Cir.1974); United States v. Gerke Excavating, Inc., 412 F.3d 804 (7th Cir. 2005)-this argument is waived. . The Cundiffs also assert that Seth Cundiff should have been dismissed from the lawsuit because, while he unquestionably owned part of the wetlands, he had leased them back to his father, Rudy Cundiff, and only Rudy engaged in any of the disputed activities. This argument fails, however, because even though he leased his tract, Seth Cundiff both owned it and had knowledge of Rudy Cundiffs activities. So the district court did not abuse its discretion in denying the motion to dismiss Seth Cundiff from the lawsuit. . Although not cited by either party, it is arguable that National Wildlife Federation v. Consumers Power Co., 862 F.2d 580, 584 (6th Cir.1988), would in some ways support the Cundiffs’ assertion that sidecasting is beyond the agency’s authority. In that case this Court upheld an agency determination by the EPA that the discharge of pollutants from one body of water to a contiguous one was not an "addition” because it did not add a foreign pollutant. But Consumers Power is distinguishable because it was about agency deference to the EPA's interpretation of "addition,” Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 271 F.3d 481, 489-94 (2d Cir.2001) (distinguishing Consumers Power) — indeed, the Consumers Power Court referred to the definition it was upholding as "circular.” Moreover, Consumers Power was about normal dam operations that resulted in changes to water quality, while this case concerns a defendant who took proactive steps to purposefully alter and fill his wetlands. . The current form of the regulations exclude "incidental fallback," 33 C.F.R. § 323.2(d)(3)(iii), and activities that do not have more than a "de minimis (i.e. inconsequential) effect on the area.” Id. at § 323.2(d)(6). The Cundiffs’ activities were neither “incidental” nor "inconsequential.” . It is unlikely that a takings claim would succeed: the damage the Cundiffs complain of results from the acid mine drainage from the nearby abandoned mine, which is owned by some third party and has never been owned or operated by the federal government.

Northern California River Watch v. City of Healdsburg

ORDER The opinion filed August 10, 2006, slip op. 9299, and appearing at 457 F.3d 1023 (9th Cir.2006) is withdrawn, and a new opinion will be filed in its stead. The Petitions for Rehearing and Rehearing En Banc are otherwise DENIED, no further petitions for rehearing will be accepted. OPINION SCHROEDER, Chief Judge: Defendant/Appellant City of Healdsburg (“Healdsburg”) appeals the district court’s judgment in favor of Plaintiff/ Appellee Northern California River Watch (“River Watch”), an environmental group, in this litigation under the Clean Water Act (“CWA”). Plaintiff alleges that Healds-burg, without first obtaining a National Pollutant Discharge Elimination System (“NPDES”) permit, violated the CWA by discharging sewage from its waste treatment plant into waters covered by the Act. Healdsburg discharged the sewage into a body of water known as “Basalt Pond,” a rock quarry pit that had filled with water from the surrounding aquifer, located next to the Russian River. The issue is whether Basalt Pond is subject to the CWA because the Pond, containing wetlands, borders additional wetlands that are adjacent to a navigable river of the United States. The district court held that discharges into the Pond are discharges into the Russian River, a navigable water of the United States protected by the CWA. The court followed the United States Supreme Court decision in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). The Supreme Court, however, has now narrowed the scope of that decision. See Rapanos v. United States, — U.S. -, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). In a 4-4-1 decision, the controlling opinion is that of Justice Kennedy who said that to qualify as a regulable water under the CWA the body of water itself need not be continuously flowing, but that there must be a “significant nexus” to a waterway that is in fact navigable. In light of Rapanos, we conclude that Basalt Pond possesses such a “significant nexus” to waters that are navigable in fact, not only because the Pond waters seep into the navigable Russian River, but also because they significantly affect the physical, biological, and chemical integrity of the River. We affirm the district court’s holding that Basalt Pond is subject to the CWA. We also affirm the district court’s ruling that neither the waste treatment system nor the excavation operation exceptions in the Act apply to Healdsburg’s discharges. BACKGROUND The Clean Water Act of 1972 provides the foundation for this case. See 33 U.S.C. § 1251. The primary objective of the CWA is to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To effectuate this objective, one of the CWA’s principal sections strictly prohibits discharges of pollutants into the “navigable, waters of the United States” without an NPDES permit from the Environmental Protection Agency (“EPA”). 33 U.S.C. § 1311(a). The CWA defines the term “navigable waters” to mean “waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). Basalt Pond was created in approximately 1967 when the Basalt Rock Company began excavating gravel and sand from land near the Russian River. After the top soil was ripped away, large machines tore out rock and sand. The result was a pit. The pit filled with water up to the line of the water table of the surrounding aquifer. Today, Basalt Pond, measuring one half mile in length and a quarter mile in breadth, contains 58 acres of surface water. The Pond lies along the west side of the Russian River, separated from the River by wetlands and a levee. It is undisputed that the Russian River is a navigable water of the United States. Its headwaters originate in Mendocino County, California. Its main course runs about 110 miles, flowing into the Pacific Ocean west of Santa Rosa. The horizontal distance between the edge of the River and the edge of the Pond varies between 50 and several hundred feet, depending on the exact location and the height of the river water. Usually, there is no surface connection, because the levee blocks it and prevents the Pond from being inundated by high river waters in the rainy season. In 1971, Healdsburg built a secondary waste-treatment plant on a 35-acre site located on the north side of Basalt Pond about 800 feet from and west of the Russian River. Prior to 1978, Healdsburg discharged the plant’s wastewater into another water-filled pit located to the north. In 1978, Healdsburg began discharging into Basalt Pond. Although Healdsburg did not obtain an NPDES permit, it received a state water emission permit as well as permission from Syar Industries, Inc., the current owner and manager of land and operations at Basalt Pond. The wastewater was discharged into Basalt Pond from the plant at about 420 to 455 million gallons per year between 1998 and 2000. The volume of the Pond itself is somewhat larger — 450 to 740 million gallons. The annual outflow from the sewage plant, therefore, is sufficient to fill the entire Pond every one to two years. Basalt Pond would, of course, soon overflow in these circumstances were it not for the fact that the Pond drains into the surrounding aquifer. Pond water in the aquifer finds its way to the River over a period of a few months and seeps into the River along as much as 2200 feet of its banks. The district court made specific findings as to the impact of the wastewater ultimately draining into the Russian River. First, the district court noted that not all the sewage in the wastewater reached the River. The wastewater is partially cleansed as it passes through the bottom and sides of the Basalt Pond. Healdsburg refers to this process as “polishing” or “percolation.” The wetlands around Basalt Pond also help cleanse the outflow by passing the effluent through the wetlands sediment. The filtration is effective in reducing biochemical oxygen demand and removing some pollutants, but the filtration is not perfect. The district court found that the concentrations of chloride in the. groundwater between the Pond and the Russian River are substantially higher than in the surrounding area. Chloride, which already exists in the Pond due to naturally occurring salts, reaches the River in higher concentrations as a direct result of Healds-burg’s discharge of sewage into the Pond. Mr. John Lambie, a water expert for Healdsburg, testified at trial that the average concentration of chloride appearing upstream in the River is only 5.9 parts per million. In contrast, the average concentration of chloride seeping from Basalt Pond into the River is 36 parts per million. At a monitoring well between the Pond and the River, the underground concentration is diluted to some 30 parts per million. Ultimately, a chloride concentration of 18 parts per million appears on the west side of the River. The district court thus found that chloride from the Pond over time makes its way to the River in higher concentrations than naturally occurring in the River. This finding was further supported by Dr. Larry Russell, one of River Watch’s trial experts. Plaintiffs filed this suit on December 4, 2001, alleging that Healdsburg is violating the CWA by discharging wastewater into Basalt Pond. After a four day trial, the district court made findings of fact to support its holding that Healdsburg discharged sewage into a protected water of the United States in violation of the CWA. The court’s holding was premised on the legal conclusion that Basalt Pond is a “water of the United States” within the meaning of the CWA. See 2004 WL 201502 (N.D.Cal.). This appeal followed. DISCUSSION A. Wetlands Constituting Waters of the United States Congress passed the Clean Water Act in 1972. The Act’s stated objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” § 33 U.S.C. § 1251(a). To that end, the statute, among other things, prohibits “the discharge of any pollutant by any person” except as provided in the Act. § 1311(a). After the CWA was passed, an issue arose concerning the extent to which wetlands adjacent to navigable waters constitute “waters of the United States.” In 1978, the Army Corps of Engineers (“ACOE”) issued regulations defining “waters of the United States” to include “adjacent wetlands.” 33 C.F.R. § 328.3(a)(7). The regulations specifically provide that “[t]he term ‘waters of the United States’ means,” among other things, “[w]etlands adjacent to waters.” Id. The regulations further specify that “[wjetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands.’ ” 33 C.F.R. § 328.3(c). The Supreme Court has since confirmed that regulable waters of the United States include tributaries of traditionally navigable waters and wetlands adjacent to navigable waters and their tributaries. Riverside Bayview Homes, 474 U.S. 121, 106 S.Ct. 455 33 C.F.R. 328.3(a)(1),(4),(7). The only question reserved in Riverside Bay-view Homes was the issue of CWA jurisdiction over truly isolated waters. See Rapanos, 126 S.Ct. at 2255 n. 3. Thus, the first issue before us is whether Basalt Pond and the wetlands in it are isolated waters, or whether they constitute covered wetlands within the meaning of the regulations and within the scope of Riverside Bayview Homes and Rapanos. The applicable regulations define wetlands as “those areas that are inundated or saturated, by surface or groundwater.” See 33 C.F.R. § 328.3(b). The record here reflects that the Russian River and surrounding area, including the Pond itself, rest on top of a vast gravel bed extending as much as sixty feet into the earth. The gravel bed is a porous medium, saturated with water. Through it flows an equally vast underground aquifer. This aquifer supplies the principal pathway for a continuous passage of water between Basalt Pond and the Russian River. Beneath the surface, water soaks in and out of the Pond via the underground aquifer. This action is continuous, 24 hours a day, seven days a week, 365 days a year. Indeed, the parties have stipulated that the Pond and the River overlie the same un-eonfined aquifer and that the land separating the two is saturated below the water table. The Basalt Pond and its surrounding area are therefore regulable under the Clean Water Act, because they qualify as wetlands under the regulatory definition. The district court explicitly found that the Pond is not only surrounded by extensive wetlands, which connect to the Russian River, but also that the Pond’s shoreline has receded so substantially that much of the area that was originally Basalt Pond has turned into wetland. This ease is thus different than our recent decision in San Francisco Baykeeper v. Cargill Salt Div., 481 F.3d 700 (9th Cir.2007), because here, the Pond is not isolated; it contains and is surrounded by wetlands, rendering it re-gulable under the CWA. The remaining question is whether, under Rápanos and its antecedents, Basalt Pond is a “water of the United States” because it is sufficiently adjacent to the navigable Russian River to confer jurisdiction or alternatively because it has a substantial nexus to the River. The Supreme Court has not yet agreed upon a satisfactory explanation of when wetlands are sufficiently adjacent to navigable waters to confer CWA jurisdiction. The leading case addressing the issue is Riverside Bayview Homes, 474 U.S. 121, 106 S.Ct. 455, which was decided in 1985. The Supreme Court there upheld CWA jurisdiction over wetlands that directly abutted a navigable creek. The Court held that “the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.” Id. at 134, 106 S.Ct. 455. In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (SWANCC), the Supreme Court again interpreted the CWA term “navigable waters” and held that isolated ponds and mudflats, unconnected to other waters covered by the Act, were not “waters of the United States, because they were either not sufficiently adjacent to navigable waterways or did not have a substantial nexus to such waters.” The case involved ponds that had been formed as a result of an abandoned sand and gravel pit mining operation, but were not “adjacent wetlands.” The ACOE regulations defined the ponds nevertheless to be “waters of the United States,” id. at 163, 121 S.Ct. 675 (quoting 33 C.F.R. § 328.3(a)(3) (1999)), because they were “used as habitat by other migratory birds which cross state lines,” id. at 164, 121 S.Ct. 675 (quoting 51 Fed. Reg. 41,206, 41,217 (Nov. 13, 1986)). Under this “Migratory Bird Rule,” ponds that are isolated from navigable waters may constitute “waters of the United States” if they are used as habitat by migratory birds. The Supreme Court rejected that theory and held that the CWA does not protect isolated ponds without a significant nexus to navigable water. The Court explained that, “[i]t was the significant nexus between wetlands and ‘navigable waters’ that informed our reading of the [Act] in Riverside Bayview Homes.” Id. at 167, 121 S.Ct. 675. The Supreme Court in SWANCC, therefore, invalidated the Migratory Bird Rule but did not purport to reconsider its prior holding regarding adjacent wetlands in Riverside Bayview Homes. In Baccarat Fremont Developers, LLC v. U.S. Army Corps of Engineers, 425 F.3d 1150 (9th Cir.2005), we expressly recognized that SWANCC invalidated the ACOE’s Migratory Bird Rule, but did not overrule Riverside Bayview Homes. Our conclusion in Baccarat is consistent with other circuits that have also held that SWANCC did not overrule Riverside Bayview Homes. See United States v. Hubenka, 438 F.3d 1026 (10th Cir.2006); United States v. Johnson, 437 F.3d 157 (1st Cir.2006). In the last term the Supreme Court also discussed the intersection between Riverside Bayview Homes and SWANCC. Rapanos, — U.S. -, 126 S.Ct. 2208, 165 L.Ed.2d 159. The Rapanos decision involved two consolidated cases, United States v. Rapanos, 376 F.3d 629 (6th Cir.2004) (Rapanos I), and Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir.2004). The first consolidated case, Rapanos I, involved three land parcels near Midland, Michigan. The first parcel, known as the Salzburg site, consisted of roughly 230 acres. The Salzburg site included 28 acres of wetlands. The district court found, on the basis of expert testimony, that water from the site spilled into the Hoppler Drain, which carried water into the Hop-pler Creek and ultimately into the Kawk-awlin River, which is navigable. The second parcel, known as the Hines Road site, consisted of 275 acres, which included 64 acres of wetlands. These wetlands had a surface-water connection to the Rose Drain, which carried water into the Titta-bawassee River, a navigable waterway. The final parcel, called the Pine River site, consisted of some 200 acres. This site included 49 acres of wetlands, and a surface water connection linked the wetlands to the nearby Pine River, which flowed into Lake Huron. The wetlands at issue in all three parcels were neither directly adjacent to nor entirely isolated from a navigable water of the United States. The United States brought an action against the Rapanos petitioners for civil violations of the CWA. Specifically, the government claimed that petitioners discharged fill into protected wetlands, failed to respond to requests for information, and ignored administrative compliance orders. After a 13-day bench trial, the district court made factual findings upholding the Corps’ jurisdiction over wetlands on the three parcels. On the merits the court ruled in the government’s favor, finding that violations occurred at all three sites. The United States Court of Appeals for the Sixth Circuit affirmed, 376 F.3d 629 (2004). The other consolidated case, Cara-bell, similarly involved discharges into wetlands that connected through a series of waterways to a navigable water of the United States, and the Sixth Circuit similarly held that the wetlands were covered by the Act. 391 F.3d 704 (6th Cir.2004). In Rapanos, a 4-4-1 plurality opinion, the Supreme Court addressed how the term “navigable waters” should be construed under the Act. The plurality, written by Justice Scalia for four Justices, would have reversed on the grounds that only those wetlands with a continuous surface connection to bodies that are “waters of the United States” are protected under the CWA. Justice Stevens, writing the dissent for four Justices, would have affirmed on the grounds that even wetlands not directly adjacent to navigable waters, but adjacent to tributaries of navigable waters, are protected under the CWA. Justice Stevens also argued that Riverside Bayview Homes is still the controlling precedent and does not require a “significant nexus” test. Justice Kennedy, constituting the fifth vote for reversal, concurred only in the judgment. His concurrence is the narrowest ground to which a majority of the Justices would assent if forced to choose in almost all cases. See United States v. Gerke, 464 F.3d 723, 724 (7th Cir.2006); see also Rapanos, 126 S.Ct. at 2265 n. 13 (J. Stevens dissenting). Thus, as the Seventh Circuit extensively explained in Gerke, 464 F.3d at 724, Justice Kennedy’s concurrence provides the controlling rule of law for our case. See also Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). Justice Kennedy said that when wetlands are isolated, or adjacent only to a non-navigable tributary of a navigable waterway, those wetlands are regulable under the CWA only if there is a significant nexus between the wetlands at issue and the navigable waterway. Rapanos, 126 S.Ct. at 2248. He explained that a significant nexus exists “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’ ” Rapanos, 126 S.Ct. at 2248. “When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.’ ” Id. In addressing whether a hydrological connection satisfies the “significant nexus” test, Justice Kennedy explained that a “mere hydrologic connection should not suffice in all cases; the connection may be too insubstantial for the hydrologic linkage to establish the required nexus with navigable waters as traditionally understood.” Id. at 2251. Rather, the “required nexus must be assessed in terms of the statute’s goals and purposes,” which are to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Id. at 2248 (internal quotations and citations omitted). Justice Kennedy thus established a substantial nexus test for the applicability of the Act, concluding that “absent a significant nexus, jurisdiction under the Act is lacking.” Id. at 2241. But, at the same time, Justice Kennedy also reaffirmed the holding of Riverside Bayview Homes that wetlands adjacent to navigable waterways are covered by the Act, saying that by virtue of the “reasonable inference of ecologic interconnnection,” assertion of jurisdiction “is sustainable under the Act by showing adjacency alone.” Id. at 2248. This indicates that a significant nexus may be inferred when wetlands are adjacent to navigable waters. In this case, we have both. The Pond is part of a larger wetland that is “adjacent” to the River within the meaning of Riverside Bayview Homes. There is also a “substantial nexus” present under the analysis of Justice Kennedy in Rapa-nos. The water from the Pond seeps into the river through both the surface wetlands and the underground aquifer. The district court’s findings of fact regarding this hydrological connection support the conclusion that Basalt Pond has a significant effect on “the chemical, physical, and biological integrity” of the Russian River. There is accordingly a substantial nexus between the Basalt Pond and covered waters sufficient to confer jurisdiction under the Act pursuant to Justice Kennedy’s substantial nexus test. See id. at 2241. With respect to the physical effect on the River, there is an actual surface connection between Basalt Pond and the Russian River when the River overflows the levee and the two bodies of water commingle. There is also an underground hydraulic connection between the two bodies, so a change in the water level in one immediately affects the water level in the other. Basalt Pond drains into the aquifer and at least 26 percent of the Pond’s volume annually reaches the River itself. Thus, there are several hydrological connections between Basalt Pond’s wetlands and the Russian River that affect the physical integrity of the River. In addition to these physical connections between Basalt Pond and the Russian River, the district court found that there is also a significant ecological connection. The Pond and its wetlands support substantial bird, mammal and fish populations, all as an integral part of and indistinguishable from the rest of the Russian River ecosystem. Many of the bird populations at the Pond are familiar along the River, including cormorants, great egrets, mallards, sparrows, and fish-eaters. Fish indigenous to the River also live in the Pond due to the recurring breaches of the levee. As the district court observed, these facts make Basalt Pond indistinguishable from any of the natural wetlands alongside the Russian River that have extensive biological effects on the River itself. The district court also found that Basalt Pond significantly affects the chemical integrity of the Russian River by increasing its chloride levels. The chloride from Basalt Pond reaches the River in higher concentrations as a direct result of Healds-burg’s discharge of sewage into the pond. Mr. John Lambie testified at trial that the average concentration of chloride appearing upstream in the river is only 5.9 parts per million. In contrast, the average concentration of chloride seeping from Basalt Pond into the River is 36 parts per million, and the chloride concentration on the west side of the River adjacent to the Pond is 18 parts per million. In sum, the district court made substantial findings of fact to support the conclusion that Basalt Pond has a significant nexus to the Russian River. The Pond’s effects on the Russian River are not speculative or insubstantial. Rather, the Pond significantly affects the physical, biological and chemical integrity of the Russian River, and ultimately warrants protection as a “navigable water” under the CWA. Appellant’s discharge of wastewater into Basalt Pond without a permit, therefore, violates the CWA unless it falls within one of the Act’s exceptions. B. Waste Treatment System Exception Appellant claims that even if Basalt Pond constitutes a water of the United States it is exempt from protection under the CWA’s waste treatment system exception. The CWA excludes “waste treatment systems” from “waters of the United States.” The CWA regulations specifically provide that: Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this' definition) are not waters of the United States. 33 C.F.R. § 328.3(a)(8). Claims of exemption, from the jurisdiction or permitting requirements, of the CWA’s broad pollution prevention mandate must be narrowly construed to achieve the purposes of the CWA. See United States v. Akers, 785 F.2d 814, 819 (9th Cir.1986). Furthermore, appellant has the burden to prove that this exception applies to its discharge of wastewater into Basalt Pond. See United States v. First City National Bank, 386 U.S. 361, 366, 87 S.Ct. 1088, 18 L.Ed.2d 151 (1967); Sierra Club v. Union Oil Company of California, 813 F.2d 1480, 1484 (9th Cir.1987) (vacated on other grounds by Union Oil Co. of California v. Sierra Club, 485 U.S. 931, 108 S.Ct. 1102, 99 L.Ed.2d 264 (1988)). The waste treatment system exemption was intended to exempt either water systems that do not discharge into waters of the United States or waters that are incorporated in an NPDES permit as part of a treatment system. See 44 Fed. Reg. 32858 (June 1, 1979); In the Matter of: Borden, Inc./Colonial Sugars, 1984 1 E.A.D. 895 (E.P.A.1984). In other words, a permit is not required to discharge pollutants into a self-contained body of water that has no connection to a water of the United States, or into a body of water that is connected to a water of the United States, but that is part of an approved treatment system. The exception was meant to avoid requiring dischargers to meet effluent discharge standards for discharges into their own closed system treatment ponds. See 45 Fed.Reg. 48620-21 (July 21, 1980) (emphasis added). Regulations under the CWA, however, still extend to discharges from treatment ponds. Id. (emphasis added). Basalt Pond may be part of a waste treatment system, but it does not fall under the exemption because it is neither a self-contained pond nor is it incorporated in an NPDES permit as part of a treatment system. For these reasons, we hold that Basalt Pond is not a waste treatment system exempt from coverage under the Act. C. The Excavation Operation Exception Healdsburg also argues that Basalt Pond is exempt from protection under the CWA because it is the site of an ongoing excavation operation. In its preamble to the revisions to its CWA regulation, the ACOE stated: For clarification it should be noted that we generally do not consider the following waters to be “Waters of the United States.... ” (e) Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States (see 33 C.F.R § 328.3(a)). 51 Fed.Reg. 41206, 41217 (1986) (emphasis added). Appellant argues that Basalt Pond is used as part of an active gravel excavation operation and is, therefore, exempt from NPDES regulation. The district court correctly found that there is no merit to this claim. The district court found that although Syar operates reclamation activities at Basalt Pond, those activities do not constitute an ongoing excavation operation as defined by the ACOE’s exemption. The Basalt Rock Company, Syar’s predecessor, ceased its excavation of rock or sand from Basalt Pond in 1984. Syar, through its reclamation activities, has never extracted rock or sand from the pond. Rather, Syar has pumped a slurry of sand and sediment into Basalt Pond. These findings support the conclusion that all excavation operations at Basalt Pond have been abandoned. Syar does continue to use Basalt Pond as a discharge location for its surface mining operations at other locations, but this does not constitute ongoing excavation operations. The excavation operation exemption applies only to ponds undergoing actual extraction. Basalt Pond is merely tangential to Syar’s excavation of other lands. Our holding in Leslie Salt Co. v. United States, clarifies that the ACOE extraction operations exemption does not apply to a body of water which might be part of general commercial activity. 896 F.2d 354, 359 (9th Cir.1990). Rather, the exemption applies only to bodies of water that are currently and directly under active excavation. Id.; see also Golden Gate Audubon Soc., Inc. v. U.S. Army Corps of Engineers (Audubon II), 796 F.Supp. 1306, 1315 (N.D.Cal.1992). The district court correctly held that the excavation operations exception does not apply in this case. CONCLUSION The Basalt Pond is part of a larger wetland adjacent to the Russian River. It also has a significant nexus to the Russian River, a navigable water of the United States. Healdsburg, by discharging wastewater into the Pond without an NPDES permit, therefore, violated the CWA. The decision of the district court is AFFIRMED.

United States v. Johnson

LIPEZ, Circuit Judge. Following the panel’s decision in this case, see United States v. Johnson, 437 F.3d 157 (1st Cir.2006), appellants moved for rehearing en banc, noting the Supreme Court’s grant of certiorari in United States v. Rapanos, 376 F.3d 629 (6th Cir.2004). We held their petition in abeyance pending a decision in that case. Following the decision in Rapanos v. United States, 547 U.S. -, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), appellants supplemented their previous petition. They request that we grant rehearing en banc to resolve the conflict between the panel decision and Rapanos, or, alternately, that we vacate the decision with prejudice on the ground that the evidence in the record supports a judgment in their favor. The government filed a response requesting that we vacate our previous decision and remand to the district court. After careful consideration, we vacate and remand for further proceedings consistent with Rapanos, as described below. I. The Panel Decision This case began when the United States filed a civil action alleging that defendants (now appellants), a group of cranberry farmers in Carver, Massachusetts, had discharged pollutants into federally-regulated waters without a permit in violation of § 301 and § 502 of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1311, 1362. In response, appellants contended that the United States lacked jurisdiction over the three properties in question: (1) the Cross Street site; (2) the Fosdick Street site; and (3) the Forest/Fuller Street site (collectively, the “target sites”). In separate rulings on liability and remedy, the district court granted summary judgment in favor of the government. The district court denied appellants’ motion for reconsideration, stating that “there is a sufficient basis for the United States to exercise jurisdiction because the undisputed evidence shows that the three wetlands are hydrologically connected to the navigable Weweantic River by nonnavigable tributaries.” In an appeal to this court, appellants challenged the district court’s judgment that the jurisdiction of the CWA extends to the target sites. First, they asserted that their property is not covered by the Environmental Protection Agency (“EPA”) regulation promulgated to carry out the CWA. In the alternative, appellants argued that, if their property is covered by the regulation, either the regulation exceeds the authority granted by the CWA, or the CWA exceeds Congress’s authority under the Commerce Clause. We affirmed the trial court’s judgment in a divided decision, with two members of the panel concurring in the judgment for different reasons, and one member dissenting. One member of the majority concluded that the hydrological connection between the target sites and the Weweantic River establishes a “significant nexus” between the sites and the river, sufficient to establish jurisdiction under the CWA without creating constitutional issues under the Commerce Clause. For two of the target sites, in the view of this judge, the hydrological connection depended on diffusion of water through wetlands. See 437 F.3d at 162. The other member of the majority read the record differently to conclude that the hydrological connection was a system of tributaries, some of which happened to flow through wetlands or other bogs. See id. at 182. The concurring panelist thus concluded that it was unnecessary to decide whether the diffusion of water through wetlands was a sufficient hydrological connection to support a “significant nexus.” Id. The dissent concluded that the United States “may not constitutionally regulate wetlands that are neither themselves navigable nor truly adjacent to navigable waters.” Id. at 187 (internal quotations and citation omitted). Moreover, even if the EPA’s assertion of jurisdiction was constitutional, the dissent would have held that the government’s attempt to assert jurisdiction over appellants’ wetlands is inconsistent with its own regulations because the system of tributaries linking the target sites to the Weweantic includes other wetlands. Because the regulations explicitly exclude wetlands adjacent to waters that are themselves wetlands, the dissent argued that the government lacked jurisdiction under its own regulations. Id. at 187. II. Response to the Panel Decision As noted, appellants filed a petition for rehearing en banc pursuant to Rule 35 of the Federal Rules of Appellate Procedure, arguing that the case should be reheard following the Supreme Court’s then-pending decision in Rapanos. We ordered appellants’ petition held in abeyance pending the Supreme Court’s decision in Rapanos. We further stated that appellants could file a supplemental petition for rehearing en banc within fourteen days after the decision in Rapanos was issued, and the government could then respond. III. Rapanos v. United States The decision in Rapanos v. United States, 547 U.S. -, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), resolved two consolidated cases from the Sixth Circuit. In one case, the United States brought an enforcement action alleging that property owners and their affiliated businesses deposited fill materials into wetlands without a permit, in violation of the CWA. Id. at 2219. In the other, property owners were denied a permit to deposit fill material in a wetland approximately one mile from a lake and, after exhausting their administrative appeals, they filed suit. Id. In both cases, the district court found that there was federal regulatory jurisdiction over the sites in question, and the Sixth Circuit affirmed. The Supreme Court then consolidated the cases and granted certiorari to decide whether these wetlands constitute “waters of the United States” under the CWA, and, if so, whether the CWA is constitutional. See id at 2220. The Court issued a split decision construing the phrase “waters of the United States” as used in the CWA. The plurality concluded that the phrase “waters of the United States” includes only “relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] ... oceans, rivers, [and] lakes.’ ” Id. at 2225. Thus, for purposes of determining federal regulatory jurisdiction, “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.” Id. at 2226 (emphasis in original). The plurality vacated the decision of the Sixth Circuit in both cases and, noting “the paucity of the record,” remanded for further proceedings. Id. at 2235. Justice Kennedy concurred in the judgment, but rejected the plurality’s rationale. Instead, he concluded that jurisdiction extends to wetlands that “possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” Id. at 2236. Justice Kennedy further found that wetlands “possess the requisite nexus” if “either alone or in combination with similarly situated lands in the region, [they] significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’ ” Id. at 2248. Where the wetlands in question are “adjacent to navigable-in-fact waters, [the government] may rely on adjacency to establish its jurisdiction.” Id. at 2249. Where the wetlands are adjacent to nonnavigable tributaries, “[a]bsent more specific regulations ... [the government] must establish a significant nexus on a case-by-case basis.” Id. at 2249. Justice Stevens authored a dissent joined by three other Justices. In the view of the dissenters, to the extent that the CWA includes a “significant nexus” requirement, this requirement “is categorically satisfied as to wetlands adjacent to navigable waters or their tributaries.” Id. at 2263-64. The dissent concluded by noting specifically that “all four Justices who have joined this opinion would uphold the Corps’ jurisdiction ... in all other cases in which either the plurality’s or Justice Kennedy’s test is satisfied.... ” Id. at 2265. IV. Subsequent Motions Following the Supreme Court’s decision in Rapanos, appellants filed a supplemental petition for rehearing en banc challenging the view in one of the panel opinions that a hydrological connection constitutes a jurisdictionally sufficient “significant nexus.” Appellants contend that rehearing is necessary to resolve the tension between the panel opinion and Rapanos. They argue that under either the plurality opinion or Justice Kennedy’s concurrence, a hydrological connection is insufficient to establish jurisdiction, although they also argue strenuously that the plurality’s test alone should apply. Alternatively, appellants contend that the evidence in the record is sufficient to support a finding in their favor under the standards in Rapa-nos, and urge that we vacate the decision and direct the district court to enter judgment for them. The United States opposes the petition for en banc review and urges us instead to vacate the panel’s decision and remand the case to the district court. The government argues that additional factfinding is necessary before the legal principles articulated in Rapanos can be applied in this case. Moreover, the government asserts that on remand it should be allowed to establish CWA jurisdiction under either the Rapa-nos plurality’s test or Justice Kennedy’s test. V. Remand to the District Court We agree with the government that remand to the district court for application of the Rapanos standards is appropriate. The parties presented their cases in the district court without any awareness of the standards that now apply. They should now have an opportunity to develop their positions in the district court with an awareness of these standards. However, the question of what legal standard to apply is one of some complexity, and other courts have taken varying approaches to the issue. We conclude that the United States may assert jurisdiction over the target sites if it meets either Justice Kennedy’s legal standard or that of the plurality. We explain our reasoning. A. Other Courts’ Application of Rapanos In the months since Rapanos, four courts have applied its legal standards— two district courts and two courts of appeals. 1. Decisions of District Courts In United States v. Evans, 2006 WL 2221629 (M.D.Fla. Aug.2, 2006), the Middle District of Florida adopted Justice Stevens’s suggestion to apply either the plurality’s or Justice Kennedy’s standard. That court cited the Supreme Court’s decision in Marks v. United States for the proposition that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Evans at *19 (citing Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)). The court noted that “ ‘narrowest grounds’ is understood as the ‘less far-reaching’ common ground,” Evans at *19 (citing Johnson v. Bd. of Regents of the Univ. of Ga., 263 F.3d 1234, 1247 (11th Cir.2001)), but found that because the plurality and Justice Kennedy articulated different standards for application on remand it was unclear which would control. Hence, the court adopted Justice Stevens’s approach. Evans at *19. The Northern District of Texas used a sharply contrasting approach in United States v. Chevron Pipe Line Co., 437 F.Supp.2d 605 (N.D.Tex.2006), determining that because of the lack of a clear legal standard in Rapanos, it would instead rely on precedent within its own circuit. The court noted that “the Supreme Court failed to reach a consensus of a majority as to the jurisdictional boundary of the CWA.” It added that Justice Kennedy “advanced an ambiguous test — whether a ‘significant nexus’ exists to waters that are/ were/might be navigable. This test leaves no guidance on how to implement its vague, subjective centerpiece. That is, exactly what is ‘significant’ and how is a ‘nexus’ determined?” Id. at 613 (internal citation omitted). The court then concluded: Because Justice Kennedy failed to elaborate on the ‘significant nexus’ required, this Court will look to the prior reasoning in this circuit. The Fifth Circuit, as discussed above, has interpreted ‘the waters of the United States’ narrowly under the OPA. Without any clear direction on determining a significant nexus, this Court will do exactly as Chief Justice Roberts declared — ‘feel [its] way on a case-by-case basis.’ Id. The court did not discuss Justice Stevens’s instruction. 2. Decisions of Courts of Appeals The Ninth Circuit, the first circuit court to apply Rapanos, concluded without analysis that Justice Kennedy’s concurrence provides the controlling test. No. Cal. River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir.2006). The court stated: Justice Kennedy, constituting the fifth vote for reversal, concurred only in the judgment and, therefore, provides the controlling rule of law. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (explaining that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”). Id. at 1029. Without further discussion, the Ninth Circuit applied Justice Kennedy’s test. The court did not acknowledge Justice Stevens’s instruction. Most recently, in United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir.2006), the Seventh Circuit also found that Justice Kennedy’s test is controlling without discussing Justice Stevens’s instruction. The court paraphrases Marks v. United States: When a majority of the Supreme Court agrees only on the outcome of a case and not on the ground for that outcome, lower-court judges are to follow the narrowest ground to which a majority of the Justices would have assented if forced to choose. In Rapanos, that is Justice Kennedy’s ground. Id. at 724 (citing Marks, 430 U.S. at 193, 97 S.Ct. 990). Curiously, without explanation, the court equates the “narrowest opinion” with the one least restrictive of federal authority to regulate. It states: The plurality Justices thought that Justice Kennedy’s ground for reversing was narrower than their own, because they concluded their extensive and in places harsh criticism of the concurrence by saying that ‘Justice Kennedy tips a wink at the agency [i.e., the Corps of Engineers], inviting it to try its same expansive reading again.’ [Justice Kennedy’s] test is narrower (so far as reining in federal authority is concerned) than the plurality’s in most cases, though not in all because Justice Kennedy also said that ‘by saying the Act covers wetlands (however remote) possessing a surface-water connection with a continuously flowing stream (however small), the plurality’s reading would permit applications of the statute as far from traditional federal authority as are the waters it deems beyond the statute’s reach.’ Id. at 724, 725 (quoting Rapanos, 126 S.Ct. at 2234 n. 15 & 2246) (emphasis added). Gerke concludes by acknowledging the following anomaly: If Justice Kennedy finds federal jurisdiction over a particular site using the “significant nexus” test the four dissenters would also find jurisdiction. However, if Justice Kennedy does not find federal jurisdiction, there could be instances where both the plurality and the dissent disagree with his conclusion. Id. at 724-25. In other words, there could be a case in which Justice Kennedy would vote against federal authority only to be outvoted 8-to-l (the four dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection. The plurality’s insistence that the issue of federal authority be governed by strict rules will on occasion align the Justices in the plurality with the Rapa-nos dissenters when the balancing approach of Justice Kennedy favors the landowner. Id. However, Gerke writes off this “rare case,” concluding that “as a practical matter the Kennedy concurrence is the least common denominator.” Id. B. Interpretation of Marks The Marks directive that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds,” Marks, 430 U.S. at 193, 97 S.Ct. 990 (internal citation omitted), has proven troublesome in application for the Supreme Court itself and for the lower courts. Therefore, the genesis of that directive and its application require scrutiny. In Marks, the defendant raised a Due Process challenge to his obscenity conviction on the grounds that he had been punished retroactively under a definition of obscenity laid out in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), when he had actually engaged in the punished conduct prior to the Miller decision. The “narrowest grounds” approach emerged when the Court examined Miller’s predecessor, Memoirs v. Attorney General of the Commonwealth of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), to determine whether the law had provided fair warning at the time of the defendant’s conduct. Marks, 430 U.S. at 193-94, 97 S.Ct. 990. In Memoirs, a majority of the Supreme Court found that a lower court erred in finding a book obscene and thus unprotected by the First Amendment. However, three Justices felt that materials would not be protected by the First Amendment if they were deemed obscene, Memoirs, 383 U.S. at 418, 86 S.Ct. 975 (Brennan, J.), while two other Justices insisted that the First Amendment provides an absolute shield against government action aimed at suppressing obscenity. Id. at 421, 86 S.Ct. 975 (Black, J., concurring); id. at 426, 86 S.Ct. 975 (Douglas, J., concurring). Marks concluded that the opinion excluding obscene materials from First Amendment protection was the “narrowest grounds” for the judgment in Memoirs. Relatedly, the “narrowest grounds” language of Marks is itself a quotation from a previous Supreme Court case, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Gregg discusses Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which examined the constitutionality of the death penalty as imposed under a Georgia statute. In Furman, five Justices agreed that the death penalty was unconstitutional as imposed in the case. However, two of these Justices believed that capital punishment was unconstitutional per se, while the other three Justices felt that the death penalty was unconstitutional under the conditions present in the cases before the court but did not necessarily agree that capital punishment was per se unconstitutional. Gregg concluded: “Since five Justices wrote separately in support of the judgments in Furman, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.... ” 428 U.S. at 169 n. 15, 96 S.Ct. 2909. In sum, the cases on which Marks directly relies both involve situations in which the “narrowest ground” was also the ground least restrictive of federal jurisdiction, as the Seventh Circuit indicated in Gerke. However, this coincidence does not necessarily mean that the Supreme Court in Marks equated the “narrowest grounds” of decision in a case with fragmented decisions to the grounds least restrictive of the assertion of federal authority. Such an equation leaves unanswered the question of how one would determine which opinion is controlling in a case where the government is not a party. Moreover, given the underlying constitutional question presented by Rapanos, it seems just as plausible to conclude that the narrowest ground of decision in Rapanos is the ground most restrictive of government authority (the position of the plurality), because that ground avoids the constitutional issue of how far Congress can go in asserting jurisdiction under the Commerce Clause. See Rapanos, 126 S.Ct. at 2224 (plurality opinion). The appellants argue for that result here. As an alternative to the Seventh Circuit’s reading of Marks, one might sensibly conclude, as one court has, that the “narrowest grounds” are simply understood as the “less far-reaching-common ground.” Johnson v. Bd. of Regents of the Univ. of Ga., 263 F.3d 1234, 1247 (11th Cir.2001); see also Mark Alan Thurmon, Note, When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions, 42 Duke L.J. 419, 420-21 (1992) (quoting Linda Novak, Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Colum. L.Rev. 756, 763 (1980)) (“One way to determine the ‘narrowest grounds’ is to look for the opinion ‘most clearly tailored to the specific fact situation before the Court and thus applicable to the fewest cases, in contrast to an opinion that takes a more absolutist position or suggests more general rules.’ ”). This reading is also consistent with Memoirs and Furman: in both cases, the opinion deemed “narrowest” was the one more closely tailored to the specific situation the Court confronted. Even if we take this more sensible approach to Marks, however, the case still poses problems in the situation before us. As the D.C. Circuit held in an en banc opinion, “Marks is workable — one opinion can be meaningfully regarded as ‘narrower’ than another — only when one opinion is a logical subset of other, broader opinions.” King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991) (en banc). In other words, the “narrowest grounds” approach makes the most sense when two opinions reach the same result in a given case, but one opinion reaches that result for less sweeping reasons than the other. When applied to future cases, the less sweeping opinion would require the same outcome in a subset of the cases that the more sweeping opinion would. For example, in Furman, the Justices who concluded that capital punishment was per se unconstitutional would always strike down future death penalty sentences, but the Justices who found only that the death penalty was unconstitutional as administered in Fur-man would only strike down capital sentences in a subset of future capital cases. Similarly, in Memoirs, the absolutist view of the First Amendment held by two Justices would always require a ruling in favor of protecting speech, but the view of three other Justices that only non-obscene speech is protected would extend First Amendment protection only to a subset of such cases. Thus, the less sweeping opinion in each case represents the “narrowest grounds” for the decision. This understanding of “narrowest grounds” as used in Marks does not translate easily to the present situation. The cases in which Justice Kennedy would limit federal jurisdiction are not a subset of the cases in which the plurality would limit jurisdiction. As Gerke points out, in cases where there is a small surface water connection to a stream or brook, the plurality’s jurisdictional test would be satisfied, but Justice Kennedy’s balancing of interests might militate against finding a significant nexus. In such a case, if Justice Kennedy’s test is the single controlling test (as advocated by the Seventh and Ninth Circuits), there would be a bizarre outcome — the court would find no federal jurisdiction even though eight Justices (the four members of the plurality and the four dissenters) would all agree that federal authority should extend to such a situation. This possibility demonstrates the shortcomings of the Marks formulation in applying Rapanos. C. The Rapanos Dissent’s Approach Justice Stevens foresaw the possibility that the plurality might find jurisdiction in some cases where Justice Kennedy does not. His instruction to find jurisdiction where either test is satisfied provides a simple and pragmatic way to assess what grounds would command a majority of the Court. Justice Stevens observes: I assume that Justice Kennedy’s approach will be controlling in most cases because it treats more of the Nation’s waters as within the Corps’ jurisdiction, but in the unlikely event that the plurality’s test is met but Justice Kennedy’s is not, courts should also uphold the Corps’ jurisdiction. In sum, in these and future cases the United States may elect to prove jurisdiction under either test. Rapanos, 126 S.Ct at 2265 n. 14. Following Justice Stevens’s instruction ensures that lower courts will find jurisdiction in all cases where a majority of the Court would support such a finding. If Justice Kennedy’s test is satisfied, then at least Justice Kennedy plus the four dissenters would support jurisdiction. If the plurality’s test is satisfied, then at least the four plurality members plus the four dissenters would support jurisdiction. Other circuits have previously taken this common sense approach to fragmented opinions. See, e.g., Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1182 (2d Cir.1992) (“In essence, what we must do is find common ground shared by five or more justices.”); United States v. Williams, 435 F.3d 1148, 1157 (9th Cir.2006) (“We need not find a legal opinion which a majority joined, but merely a legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree.” (internal quotation marks and citations omitted)). We note that one circuit court has previously reached a conclusion at odds with the position Justice Stevens now advocates. In King v. Palmer, the D.C. Circuit stated that “we do not think we are free to combine a dissent with a concurrence to form a Marks majority.” 950 F.2d at 783. King discussed Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (Delaware Valley II), in which the Supreme Court considered the availability and amount of contingency fees under federal fee-shifting statutes. In Delaware Valley II, the Court ultimately issued a plurality opinion signed by four Justices, a dissent signed by four Justices, and a concurrence by Justice O’Connor. The D.C. Circuit refused to examine the points of commonality among Justice O’Connor’s opinion and that of the dissent, relying mainly on a literal reading of Marks’s language that the holding is the position of the Justices “who concurred in the judgments on the narrowest grounds,” Marks, 430 U.S. at 193, 97 S.Ct. 990 (emphasis added), as well as the fact that the Supreme Court had not explicitly applied Marks to situations where concurring and dissenting votes would be combined. King, 950 F.2d at 783. However, the situation in King is different from the case before us. In Delaware Valley II, Justice O’Connor and the dissenting Justices simply took different approaches to the question of how to calculate a contingency enhancement, with the result that it is not immediately obvious how them views could be combined to form a five-Justice majority. In Rapanos, Justice Stevens states that whenever either the plurality or Justice Kennedy would find jurisdiction, the Rapanos dissenters would agree. Moreover, the Third Circuit took a position opposite to that of the D.C. Circuit in interpreting Delaware Valley II, holding that “[bjecause the four dissenters would allow contingency multipliers in all cases in which Justice O’Connor would allow them, her position commands a majority of the court.” Student Pub. Interest Research Group of N.J., Inc. v. AT & T Bell Labs., 842 F.2d 1436, 1451 (3d. Cir.1988). Therefore, we do not share the reservations of the D.C. Circuit about combining a dissent with a concurrence to find the ground of decision embraced by a majority of the Justices. Moreover, Justice Stevens’s instruction seems particularly sound given that the Supreme Court itself has moved away from the Marks formula. In Nichols v. United States, the court observed that “[t]his test is more easily stated than applied,” adding, “[w]e think it not useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it.” 511 U.S. 738, 745-46, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994); see also Grutter v. Bollinger, 539 U.S. 306, 325, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (quoting Nichols for the same proposition). Since Marks, several members of the Court have indicated that whenever a decision is fragmented such that no single opinion has the support of five Justices, lower courts should examine the plurality, concurring and dissenting opinions to extract the principles that a majority has embraced. See Waters v. Churchill, 511 U.S. 661, 685, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (Souter, J., concurring) (analyzing the points of agreement between plurality, concurring, and dissenting opinions to identify the test that lower courts should apply); League of United Latin Am. Citizens v. Perry, — U.S. —, 126 S.Ct. 2594, 2607, 165 L.Ed.2d 609 (2006) (Kennedy, J.) (analyzing Vieth v. Jubelirer, 541 U.S. 267, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) to find that agreement among one concurring and four dissenting Justices establishes majority support for a legal proposition); Alexander v. Sandoval, 532 U.S. 275, 281-82, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (Scalia, J.) (noting the agreement of five Justices who joined plurality and various dissenting opinions). Thus, it is not surprising that Justice Stevens in his Rapanos dissent explicitly directs courts to examine the views of dissenting Justices to determine which propositions have the support of a majority. This approval is consistent with the direction that the Court as a whole has taken since Marks. Moreover, the fact that Justice Stevens does not even refer to Marks indicates that he found its framework inapplicable to the interpretation by the lower courts of the divergent tests laid out by the opinions in Rapanos. VI. Conclusion The foregoing considerations lead us to conclude that the district court should do exactly as Justice Stevens has suggested. The federal government can establish jurisdiction over the target sites if it can meet either the plurality’s or Justice Kennedy’s standard as laid out in Rapanos. In light of these standards, the district court may conduct additional factfinding if it deems it necessary to address the jurisdictional question. The district court may also address any other issues it deems necessary in deciding that jurisdictional issue. As discussed previously, the two members of the majority each had different interpretations of the record. We urge the parties and the district court to provide a clear factual record in the context of applying the new standards. Accordingly, we vacate our decision in United States v. Johnson, 437 F.3d 157 (1st Cir.2006), and remand for further proceedings. Each party is to bear its own costs. So ordered. . The regulation states that "waters of the United States" include "[w]etlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(l)-(6) of this section." 40 C.F.R. § 230.3(s)(7).

United States v. Johnson

TORRUELLA, Circuit Judge (Concurring in part, Dissenting in part). I join the majority in remanding the case to the district court so that the new legal standards developed in Rapanos v. United, States, 547 U.S. -, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), can be applied on the first instance by that court after the parties have had an opportunity to expand the record to the extent necessary given the new standards. The opportunity to expand the record is important to both the government and the Johnsons. New evidence is as likely to militate against federal regulatory jurisdiction over the Johnsons’ property as it is to demonstrate it. I depart from the majority in interpreting what standards Rapanos has established. The plurality’s “hydrological connection” test provides the proper constitutional limit on federal regulation under the Clean Water Act. Although the majority has provided an able analysis of a thorny issue, I cannot concur that Justice Kennedy’s seemingly opaque “significant nexus” test is a constitutional measure of federal regulatory jurisdiction. Extending regulatory jurisdiction to wetlands that “possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made ...” id. at 2236, leaves the door open to continued federal overreach. The plurality’s restriction of federal jurisdiction to “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the [Clean Water] Act ...” id. at 2226 (emphasis in original), strikes a constitutional balance between federal and state regulatory interests, and our nation’s interest in clean water and the individual land owner’s right to manage their property in accordance with their dreams and aspirations, whether economic or otherwise.

Rapanos v. United States

Justice Scalia announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Thomas, and Justice Alito join. In April 1989, petitioner John A. Rapanos backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away. 339 F. 3d 447, 449 (CA6 2003) (Rapanos I). Regulators had informed Mr. Rapanos that his saturated fields were “waters of the United States,” 33 U. S. C. § 1362(7), that could not be filled without a permit. Twelve years of criminal and civil litigation ensued. The burden of federal regulation on those who would deposit fill material in locations denominated “waters of the United States” is not trivial. In deciding whether to grant or deny a permit, the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot, relying on such factors as “economics,” “aesthetics,” “recreation,” and “in general, the needs and welfare of the people,” 33 CFR § 320.4(a) (2004). The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915 — not counting costs of mitigation or design changes. Sunding & Zilberman, The Economies of Environmental Regulation by Licensing: An Assessment of Recent Changes to the Wetland Permitting Process, 42 Natural Resources J. 59, 74-76 (2002). “[0]ver $1.7 billion is spent each year by the private and public sectors obtaining wetlands permits.” Id., at 81. These costs cannot be avoided, because the Clean Water Act “impose[s] criminal liability,” as well as steep civil fines, “on a broad range of ordinary industrial and commercial activities.” Hanousek v. United States, 528 U. S. 1102, 1103 (2000) (THOMAS, J., dissenting from denial of certiorari). In this litigation, for example, for backfilling his own wet fields, Mr. Rapanos faced 63 months in prison and hundreds of thousands of dollars in criminal and civil fines. See United States v. Rapanos, 235 F. 3d 256, 260 (CA6 2000). The enforcement proceedings against Mr. Rápanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act — without any change in the governing statute — during the past five Presidential administrations. In the last three decades, the Corps and the Environmental Protection Agency (EPA) have interpreted their jurisdiction over “the waters of the United States” to cover 270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States. And that was just the beginning. The Corps has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit — whether man-made or natural, broad or narrow, permanent or ephemeral — through which rainwater or drainage may occasionally or intermittently flow. On this view, the federally regulated “waters of the United States” include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years. Because they include the land containing storm sewers and desert washes, the statutory “waters of the United States” engulf entire cities and immense arid wastelands. In fact, the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. Any plot of land containing such a channel may potentially be regulated as a “water of the United States.” I Congress passed the Clean Water Act (CWA or Act) in 1972. The Act’s stated objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 86 Stat. 816, 33 U. S. C. § 1251(a). The Act also states that “[i]t is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter.” § 1251(b). One of the statute’s principal provisions is 33 U. S. C. § 1311(a), which provides that “the discharge of any pollutant by any person shall be unlawful.” “The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source,” § 1362(12), and “pollutant” is defined broadly to include not only traditional contaminants but also solids such as “dredged spoil,... rock, sand, [and] cellar dirt,” § 1362(6). And, most relevant here, the CWA defines “navigable waters” as “the waters of the United States, including the territorial seas.” § 1362(7). The Act also provides certain exceptions to its prohibition of “the discharge of any pollutant by any person.” § 1311(a). Section 1342(a) authorizes the Administrator of the EPA to “issue a permit for the discharge of any pollutant, . . . notwithstanding section 1311(a) of this title.” Section 1344 authorizes the Secretary of the Army, acting through the Corps, to “issue permits ... for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” § 1344(a), (d). It is the discharge of “dredged or fill material” — which, unlike traditional water pollutants, are solids that do not readily wash downstream — that we consider today. For a century prior to the CWA, we had interpreted the phrase “navigable waters of the United States” in the Act’s predecessor statutes to refer to interstate waters that are “navigable in fact” or readily susceptible of being rendered so. The Daniel Ball, 10 Wall. 557, 563 (1871); see also United States v. Appalachian Elec. Power Co., 311 U. S. 377, 406 (1940). After passage of the CWA, the Corps initially adopted this traditional judicial definition for the Act’s term “navigable waters.” See 39 Fed. Reg. 12119, codified at 33 CFR § 209.120(d)(1) (1974); see also Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 168 (2001) (SWANCC). After a District Court enjoined these regulations as too narrow, Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (DC 1975), the Corps adopted a far broader definition. See 40 Fed. Reg. 31324-31325 (1975); 42 Fed. Reg. 37144 (1977). The Corps’ new regulations deliberately sought to extend the definition of “the waters of the United States” to the outer limits of Congress’s commerce power. See id., at 37144, n. 2. The Corps’ current regulations interpret “the waters of the United States” to include, in addition to traditional interstate navigable waters, 33 CFR § 328.3(a)(1) (2004), “[a]ll interstate waters including interstate wetlands,” § 328.3(a)(2); “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce,” § 328.3(a)(3); “[tributaries of [such] waters,” § 328.3(a)(5); and “[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands),” § 328.3(a)(7). The regulation defines “adjacent” wetlands as those “bordering, contiguous [to], or neighboring” waters of the United States. § 328.3(c). It specifically provides that “[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are 'adjacent wetlands.’” Ibid. We first addressed the proper interpretation of 33 U. S. C. §1362(7)’s phrase “the waters of the United States” in United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985). That case concerned a wetland that “was adjacent to a body of navigable water,” because “the area characterized by saturated soil conditions and wetland vegetation extended beyond the boundary of respondent’s property to ... a navigable waterway.” Id., at 131; see also 33 CFR § 328.3(b). Noting that “the transition from water to solid ground is not necessarily or even typically an abrupt one,” and that “the Corps must necessarily choose some point at which water ends and land begins,” 474 U. S., at 132, we upheld the Corps’ interpretation of “the waters of the United States” to include wetlands that “actually abut[ted] on” traditional navigable waters. Id., at 135. Following our decision in Riverside Bayview, the Corps adopted increasingly broad interpretations of its own regulations under the Act. For example, in 1986, to “clarify” the reach of its jurisdiction, the Corps announced the so-called “Migratory Bird Rule,” which purported to extend its jurisdiction to any intrastate waters “[wjhich are or would be used as habitat” by migratory birds. 51 Fed. Reg. 41217; see also SWANCC, supra, at 163-164. In addition, the Corps interpreted its own regulations to include “ephemeral streams” and “drainage ditches” as “tributaries” that are part of the “waters of the United States,” see 33 CFR § 328.3(a)(5), provided that they have a perceptible “ordinary high water mark” as defined in § 328.3(e). 65 Fed. Reg. 12823 (2000). This interpretation extended “the waters of the United States” to virtually any land feature over which rainwater or drainage passes and leaves a visible mark— even if only “the presence of litter and debris.” 33 CFR § 328.3(e). See also U. S. General Accounting Office, Report to the Chairman, Subcommittee on Energy Policy, Natural Resources and Regulating Affairs, Committee on Government Reform, House of Representatives, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction, GAO-04-297, pp. 20-22 (Feb. 2004) (hereinafter GAO Report), http:// www.gao.gov/new.items/d04297.pdf (all Internet materials as visited June 9, 2006, and available in Clerk of Court’s case file). Prior to our decision in SWANCC, lower courts upheld the application of this expansive definition of “tributaries” to such entities as storm sewers that contained flow to covered waters during heavy rainfall, United States v. Eidson, 108 F. 3d 1336, 1340-1342 (CA11 1997), and dry arroyos connected to remote waters through the flow of groundwater over “centuries,” Quivira Mining Co. v. EPA, 765 F. 2d 126, 129 (CA10 1985). In SWANCC, we considered the application of the Corps’ “Migratory Bird Rule” to “an abandoned sand and gravel pit in northern Illinois.” 531 U. S., at 162. Observing that “[i]t was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview,” id., at 167 (emphasis added), we held that Riverside Bayview did not establish “that the jurisdiction of the Corps extends to ponds that are not adjacent to open water,” 531 U. S., at 168 (emphasis deleted). On the contrary, we held that “nonnavigable, isolated, intrastate waters,” id., at 171 — which, unlike the wetlands at issue in Riverside Bayview, did not “actually abu[t] on a navigable waterway,” 531 U. S., at 167 — were not included as “waters of the United States.” Following our decision in SWANCC, the Corps did not significantly revise its theory of federal jurisdiction under § 1344(a). The Corps provided notice of a proposed rule-making in light of SWANCC, 68 Fed. Reg. 1991 (2003), but ultimately did not amend its published regulations. Because SWANCC did not directly address tributaries, the Corps notified its field staff that they “should continue to assert jurisdiction over traditional navigable waters . . . and, generally speaking, their tributary systems (and adjacent wetlands).” 68 Fed. Reg. 1998. In addition, because SWANCC did not overrule Riverside Bayview, the Corps continues to assert jurisdiction over waters “ ‘neighboring’ ” traditional navigable waters and their tributaries. 68 Fed. Reg. 1997 (quoting 33 CFR § 328.3(c) (2002)). Even after SWANCC, the lower courts have continued to uphold the Corps’ sweeping assertions of jurisdiction over ephemeral channels and drains as “tributaries.” For example, courts have held that jurisdictional “tributaries” include the “intermittent flow of surface water through approximately 2.4 miles of natural streams and manmade ditches (paralleling and crossing under 1-64),” Treacy v. Newdunn Assoc., 344 F. 3d 407, 410 (CA4 2003); a “roadside ditch” whose water took “a winding, thirty-two-mile path to the Chesapeake Bay,” United States v. Deaton, 332 F. 3d 698, 702 (CA4 2003); irrigation ditches and drains that intermittently connect to covered waters, Community Assn. for Restoration of Environment v. Henry Bosma Dairy, 305 F. 3d 943, 954-955 (CA9 2002); Headwaters, Inc. v. Talent Irrigation Dist., 243 F. 3d 526, 534 (CA9 2001); and (most implausibly of all) the “washes and arroyos” of an “arid development site,” located in the middle of the desert, through which “water courses . . . during periods of heavy rain,” Save Our Sonoran, Inc. v. Flowers, 408 F. 3d 1113, 1118 (CA9 2005). These judicial constructions of “tributaries” are not outliers. Rather, they reflect the breadth of the Corps’ determinations in the field. The Corps’ enforcement practices vary somewhat from district to district because “the definitions used to make jurisdictional determinations” are deliberately left “vague.” GAO Report 26; see also id., at 22. But district offices of the Corps have treated, as “waters of the United States,” such typically dry land features as “arroyos, coulees, and washes,” as well as other “channels that might have little water flow in a given year.” Id., at 20-21. They have also applied that definition to such man-made, intermittently flowing features as “drain tiles, storm drains systems, and culverts.” Id., at 24 (footnote omitted). In addition to “tributaries,” the Corps and the lower courts have also continued to define “adjacent” wetlands broadly after SWANCC. For example, some of the Corps’ district offices have concluded, that wetlands are “adjacent” to covered waters if they are hydrologically connected “through directional sheet flow during storm events,” GAO Report 18, or if they lie within the “100-year floodplain” of a body of water — that is, they are connected to the navigable water by flooding, on average, once every 100 years, id., at 17, and n. 16. Others have concluded that presence within 200 feet of a tributary automatically renders a wetland “adjacent” and jurisdictional. Id., at 19. And the Corps has successfully defended such theories of “adjacency” in the courts, even after SWANCC’s excision of “isolated” waters and wetlands from the Act’s coverage. One court has held since SWANCC that wetlands separated from flood control channels by 70-foot-wide berms, atop which ran maintenance roads, had a “significant nexus” to covered waters because, inter alia, they lay “within the 100 year floodplain of tidal waters.” Baccarat Fremont Developers, LLC v. Army Corps of Engineers, 425 F. 3d 1150, 1152, 1157 (CA9 2005). In one of the cases before us today, the Sixth Circuit held, in agreement with “[t]he majority of courts,” that “while a hydrological connection between the non-navigable and navigable waters is required, there is no ‘direct abutment’ requirement” under SWANCC for “‘adjacency.’” 376 F. 3d 629, 639 (2004) (Rapanos II). And even the most insubstantial hydrologic connection may be held to constitute a “significant nexus.” One court distinguished SWANCC on the ground that “a molecule of water residing in one of these pits or ponds [in SWANCC] could not mix with molecules from other bodies of water” — whereas, in the case before it, “water molecules currently present in the wetlands will inevitably flow towards and mix with water from connecting bodies,” and “[a] drop of rainwater landing in the Site is certain to intermingle with water from the [nearby river].” United States v. Rueth Development Co., 189 F. Supp. 2d 874, 877-878 (ND Ind. 2002). II In these consolidated cases, we consider whether four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters, constitute “waters of the United States” within the meaning of the Act. Petitioners in No. 04-1034, the Rápanos and their affiliated businesses, deposited fill material without a permit into wetlands on three sites near Midland, Michigan: the “Salzburg site,” the “Hines Road site,” and the “Pine River site.” The wetlands at the Salzburg site are connected to a man-made drain, which drains into Hoppler Creek, which flows into the Kawkawlin River, which empties into Saginaw Bay and Lake Huron. See Brief for United States in No. 04-1034, p. 11; 339 F. 3d, at 449. The wetlands at the Hines Road site are connected to something called the “Rose Drain,” which has a surface connection to the Tittabawassee River. App. to Pet. for Cert, in No. 04-1034, pp. A23, B20. And the wetlands at the Pine River site have a surface connection to the Pine River, which flows into Lake Huron. Id., at A23-A24, B26. It is not clear whether the connections between these wetlands and the nearby drains and ditches are continuous or intermittent, or whether the nearby drains and ditches contain continuous or merely occasional flows of water. The United States brought civil enforcement proceedings against the Rapanos petitioners. The District Court found that the three described wetlands were “within federal jurisdiction” because they were “ 'adjacent to other waters of the United States,’ ” and held petitioners liable for violations of the CWA at those sites. Id., at B32-B35. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed, holding that there was federal jurisdiction over the wetlands at all three sites because “there were hydrological connections between all three sites and corresponding adjacent tributaries of navigable waters.” 376 F. 3d, at 643. Petitioners in No. 04-1384, the Carabells, were denied a permit to deposit fill material in a wetland located on a triangular parcel of land about one mile from Lake St. Clair. A man-made drainage ditch runs along one side of the wetland, separated from it by a 4-foot-wide man-made berm. The berm is largely or entirely impermeable to water and blocks drainage from the wetland, though it may permit occasional overflow to the ditch. The ditch empties into another ditch or a drain, which connects to Auvase Creek, which empties into Lake St. Clair. See App. to Pet. for Cert, in No. 04-1384, pp. 2a-3a. After exhausting administrative appeals, the Carabell petitioners filed suit in the District Court, challenging the exercise of federal regulatory jurisdiction over their site. The District Court ruled that there was federal jurisdiction because the wetland “is adjacent to neighboring tributaries of navigable waters and has a significant nexus to ‘waters of the United States.’” Id., at 49a. Again the Sixth Circuit affirmed, holding that the Carabell wetland was “adjacent” to navigable waters. 391 F. 3d 704, 708 (2004) (Carabell). We granted certiorari and consolidated the cases, 546 U. S. 932 (2005), to decide whether these wetlands constitute “waters of the United States” under the Act, and if so, whether the Act is constitutional. Ill The Rapanos petitioners contend that the terms “navigable waters” and “waters of the United States” in the Act must be limited to the traditional definition of The Daniel Ball, which required that the “waters” be navigable in fact, or susceptible of being rendered so. See 10 Wall, at 563. But this definition cannot be applied wholesale to the CWA. The Act uses the phrase “navigable waters” as a defined term, and the definition is simply “the waters of the United States.” 33 U. S. C. § 1362(7). Moreover, the Act provides, in certain circumstances, for the substitution of state for federal jurisdiction over “navigable waters ... other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce ... including wetlands adjacent thereto.” § 1344(g)(1) (emphasis added). This provision shows that the Act’s term “navigable waters” includes something more than traditional navigable waters. We have twice stated that the meaning of “navigable waters” in the Act is broader than the traditional understanding of that term, SWANCC, 531 U. S., at 167; Riverside Bayview, 474 U. S., at 133. We have also emphasized, however, that the qualifier “navigable” is not devoid of significance, SWANCC, supra, at 172. We need not decide the precise extent to which the qualifiers “navigable” and “of the United States” restrict the coverage of the Act. Whatever the scope of these qualifiers, the CWA authorizes federal jurisdiction only over “waters.” 33 U. S. C. § 1362(7). The only natural definition of the term “waters,” our prior and subsequent judicial constructions of it, clear evidence from other provisions of the statute, and this Court’s canons of construction all confirm that “the waters of the United States” in § 1362(7) cannot bear the expansive meaning that the Corps would give it. The Corps’ expansive approach might be arguable if the CWA defined “navigable waters” as “water of ±he United States.” But “the waters of the United States” is something else. The use of the definite article (“the”) and the plural number (“waters”) shows plainly that § 1362(7) does not refer to water in general. In this form, “the waters” refers more narrowly to water “[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes,” or “the flowing or moving masses, as of waves or floods, making up such streams or bodies.” Webster’s New International Dictionary 2882 (2d ed. 1954) (hereinafter Webster’s Second). On this definition, “the waters of the United States” include only relatively permanent, standing or flowing bodies of water. The definition refers to water as found in “streams,” “oceans,” “rivers,” “lakes,” and “bodies” of water “forming geographical features.” Ibid. All of these terms connote continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows. Even the least substantial of the definition’s terms, namely, “streams,” connotes a continuous flow of water in a permanent channel— especially when used in company with other terms such as “rivers,” “lakes,” and “oceans.” None of these terms encompasses transitory puddles or ephemeral flows of water. The restriction of “the waters of the United States” to exclude channels containing merely intermittent or ephemeral flow also accords with the commonsense understanding of the term. In applying the definition to “ephemeral streams,” “wet meadows,” storm sewers and culverts, “directional sheet flow during storm events,” drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term “waters of the United States” beyond parody. The plain language of the statute simply does not authorize this “Land Is Waters” approach to federal jurisdiction. In addition, the Act’s use of the traditional phrase “navigable waters” (the defined term) further confirms that it confers jurisdiction only over relatively permanent bodies of water. The Act adopted that traditional term from its predecessor statutes. See SWANCC, 531 U. S., at 180 (Stevens, J., dissenting). On the traditional understanding, “navigable waters” included only discrete bodies of water. For example, in The Daniel Ball, we used the terms “waters” and “rivers” interchangeably. 10 Wall., at 563. And in Appalachian Electric, we consistently referred to the “navigable waters” as “waterways.” 311 U. S., at 407-409. Plainly, because such “waters” had to be navigable in fact or susceptible of being rendered so, the term did not include ephemeral flows. As we noted in SWANCC, the traditional term “navigable waters” — even though defined as “the waters of the United States” — carries some of its original substance: “[I]t is one thing to give a word limited effect and quite another to give it no effect whatever.” 531 U. S., at 172. That limited effect includes, at bare minimum, the ordinary presence of water. Our subsequent interpretation of the phrase “the waters of the United States” in the CWA likewise confirms this limitation of its scope. In Riverside Bayview, we stated that the phrase in the Act referred primarily to “rivers, streams, and other hydrographic features more conventionally identifiable as ‘waters’” than the wetlands adjacent to such features. 474 U. S., at 131 (emphasis added). We thus echoed the dictionary definition of “waters” as referring to “streams and bodies forming geographical features such as oceans, rivers, [and] lakes.” Webster’s Second 2882 (emphasis added). Though we upheld in that case the inclusion of wetlands abutting such a “hydrographic featur[e]” — principally due to the difficulty of drawing any clear boundary between the two, see 474 U. S., at 132; Part IV, infra — nowhere did we suggest that “the waters of the United States” should be expanded to include, in their own right, entities other than “hydrographic features more conventionally identifiable as ‘waters,’” id., at 131. Likewise, in both Riverside Bayview and SWANCC, we repeatedly described the “navigable waters” covered by the Act as “open water” and “open waters.” See Riverside Bayview, supra, at 132, and n. 8, 134; SWANCC, supra, at 167, 172. Under no rational interpretation are typically dry channels described as “open waters.” Most significant of all, the CWA itself categorizes the channels and conduits that typicálly carry intermittent flows of water separately from “navigable waters,” by including them in the definition of “ ‘point source.’ ” The Act defines “ ‘point source’” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U. S. C. § 1362(14). It also defines “ ‘discharge of a pollutant’ ” as “any addition of any pollutant to navigable waters from any point source.” §1362(12)(A) (emphasis added). The definitions thus conceive of “point sources” and “navigable waters” as separate and distinct categories. The definition of “discharge” would make little sense if the two categories were significantly overlapping. The separate classification of “ditch[es], channels], and conduit[s]” — which are terms ordinarily used to describe the watercourses through which intermittent waters typically flow — shows that these are, by and large, not “waters of the United States.” Moreover, only the foregoing definition of “waters” is consistent with the CWA’s stated “policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution, [and] to plan the development and use (including restoration, preservation, and enhancement) of land and water resources . . . § 1251(b). This statement of policy was included in the Act as enacted in 1972, see 86 Stat. 816, prior to the addition of the optional state administration program in the 1977 amendments, see 91 Stat. 1601. Thus the policy plainly referred to something beyond the subsequently added state administration program of 33 U. S. C. § 1344(g)-(Z). But the expansive theory advanced by the Corps, rather than “preserving] the primary rights and responsibilities of the States,” would have brought virtually all “plan[ning of] the development and use ... of land and water resources” by the States under federal control. It is therefore an unlikely reading of the phrase “the waters of the United States.” Even if the phrase “the waters of the United States” were ambiguous as applied to intermittent flows, our own canons of construction would establish that the Corps’ interpretation of the statute is impermissible. As we noted in SWANCC, the Government’s expansive interpretation would “result in a significant impingement of the States’ traditional and primary power over land and water use.” 531 U. S., at 174. Regulation of land use, as through the issuance of the development permits sought by petitioners in both of these cases, is a quintessential state and local power. See FERC v. Mississippi, 456 U. S. 742, 767-768, n. 30 (1982); Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 44 (1994). The extensive federal jurisdiction urged by the Government would authorize the Corps to function as a de facto regulator of immense stretches of intrastate land — an authority the agency has shown its willingness to exercise with the scope of discretion that would befit a local zoning board. See 33 CFR § 320.4(a)(1) (2004). We ordinarily expect a “clear and manifest” statement from Congress to authorize an unprecedented intrusion into traditional state authority. See BFP v. Resolution Trust Corporation, 511 U. S. 531, 544 (1994). The phrase “the waters of the United States” hardly qualifies. Likewise, just as we noted in SWANCC, the Corps’ interpretation stretches the outer limits of Congress’s commerce power and raises difficult questions about the ultimate scope of that power. See 531 U. S., at 173. (In developing the current regulations, the Corps consciously sought to extend its authority to the farthest reaches of the commerce power. See 42 Fed. Reg. 37127 (1977).) Even if the term “the waters of the United States” were ambiguous as applied to channels that sometimes host ephemeral flows of water (which it is not), we would expect a clearer statement from Congress to authorize an agency theory of jurisdiction that presses the envelope of constitutional validity. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). In sum, on its only plausible interpretation, the phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams[,] . . . oceans, rivers, [and] lakes.” See Webster’s Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps’ expansive interpretation of the “the waters of the United States” is thus not “based on a permissible construction of the statute.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). IV In Carabell, the Sixth Circuit held that the nearby ditch constituted a “tributary” and thus a “water of the United States” under 33 CFR § 328.3(a)(5). See 391 F. 3d, at 708-709. Likewise in Rapanos II, the Sixth Circuit held that the nearby ditches were “tributaries” under § 328.3(a)(5). 376 F. 3d, at 643. But Rapanos II also stated that, even if the ditches were not “waters of the United States,” the wetlands were “adjacent” to remote traditional navigable waters in virtue of the wetlands’ “hydrological connection” to them. See id., at 639-640. This statement reflects the practice of the Corps’ district offices, which may “assert jurisdiction over a wetland without regulating the ditch connecting it to a water of the United States.” GAO Report 23. We therefore address in this Part whether a wetland may be considered “adjacent to” remote “waters of the United States,” because of a mere hydrologic connection to them. In Riverside Bayview, we noted the textual difficulty in including “wetlands” as a subset of “waters”: “On a purely linguistic level, it may appear unreasonable to classify ‘lands,’ wet or otherwise, as ‘waters.’ ” 474 U. S., at 132. We acknowledged, however, that there was an inherent ambiguity in drawing the boundaries of any “waters”: “[T]he Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs — in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of ‘waters’ is far from obvious.” Ibid. Because of this inherent ambiguity, we deferred to the agency’s inclusion of wetlands “actually abut[ting]” traditional navigable waters: “Faced with such a problem of defining the bounds of its regulatory authority,” we held, the agency could reasonably conclude that a wetland that “adjoin[ed]” waters of the United States is itself a part of those waters. Id., at 132, 135, and n. 9. The difficulty of delineating the boundary between water and land was central to our reasoning in the case: “In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps’ ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.” Id., at 134 (emphasis added). When we characterized the holding of Riverside Bayview in SWANCC, we referred to the close connection between waters and the wetlands that they gradually blend into: “It was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview Homes.” 531 U. S., at 167 (emphasis added). In particular, SWANCC rejected the notion that the ecological considerations upon which the Corps relied in Riverside. Bayview — and upon which the dissent repeatedly relies today, see post, at 796, 797-798, 798-799, 800, 803, 806, 807, 809-810 — provided an independent basis for including entities like “wetlands” (or “ephemeral streams”) within the phrase “the waters of the United States.” SWANCC found such ecological considerations irrelevant to the question whether physically isolated waters come within the Corps’ jurisdiction. It thus confirmed that Riverside Bayview rested upon the inherent ambiguity in defining where water ends and abutting (“adjacent”) wetlands begin, permitting the Corps’ reliance on ecological considerations only to resolve that ambiguity in favor of treating all abutting wetlands as waters. Isolated ponds were not “waters of the United States” in their own right, see 531 U. S., at 167, 171, and presented no boundary-drawing problem that would have justified the invocation of ecological factors to treat them as such. Therefore, only those wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right, so that there is no clear demarcation between “waters” and wetlands, are “adjacent to” such waters and covered by the Act. Wetlands with only an intermittent, physically remote hydrologic connection to “waters of the United States” do not implicate the boundary-drawing problem of Riverside Bayview, and thus lack the necessary connection to covered waters that we described as a “significant nexus” in SWANCC. 531 U. S., at 167. Thus, establishing that wetlands such as those at the Rápanos and Carabell sites are covered by the Act requires two findings: first, that the adjacent channel contains a “wate[r] of the United States,” (i. e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the “water” ends and the “wetland” begins. V Respondents and their amici urge that such restrictions on the scope of “navigable waters” will frustrate enforcement against traditional water polluters under 33 U. S. C. §§ 1311 and 1342. Because the same definition of “navigable waters” applies to the entire statute, respondents contend that water polluters will be able to evade the permitting requirement of § 1342(a) simply by discharging their pollutants into noncovered intermittent watercourses that lie upstream of covered waters. See Tr. of Oral Arg. 74-75. That is not so. Though we do not decide this issue, there is no reason to suppose that our construction today significantly affects the enforcement of § 1342, inasmuch as lower courts applying §1342 have not characterized intermittent channels as “waters of the United States.” The Act does not forbid the “addition of any pollutant directly to navigable waters from any point source,” but rather the “addition of any pollutant to navigable waters.” § 1362(12)(A) (emphasis added); § 1311(a). Thus, from the time of the CWA’s enactment, lower courts have held that the discharge into intermittent channels of any pollutant that naturally washes downstream likely violates § 1311(a), even if the pollutants discharged from a point source do not emit “directly into” covered waters, but pass “through conveyances” in between. United States v. Velsicol Chemical Corp., 438 F. Supp. 945, 946-947 (WD Tenn. 1976) (a municipal sewer system separated the “point source” and covered navigable waters). See also Sierra Club v. El Paso Gold Mines, Inc., 421 F. 3d 1133, 1137, 1141 (CA10 2005) (2.5 miles of tunnel separated the “point source” and “navigable waters”). In fact, many courts have held that such upstream, intermittently flowing channels themselves constitute “point sources” under the Act. The definition of “point source” includes “any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U. S. C. § 1362(14). We have held that the Act “makes plain that a point source need not be the original source of the pollutant; it need only convey the pollutant to ‘navigable waters.’” South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, 105 (2004). Cases holding the intervening channel to be a point source include United States v. Ortiz, 427 F. 3d 1278, 1281 (CA10 2005) (a storm drain that carried flushed chemicals from a toilet to the Colorado River was a “point source”), and Dague v. Burlington, 935 F. 2d 1343, 1354-1355 (CA2 1991) (a culvert connecting two bodies of navigable water was a “point source”), rev’d on other grounds, 505 U. S. 557 (1992). Some courts have even adopted both the “indirect discharge” rationale and the “point source” rationale in the alternative, applied to the same facts. See, e. g., Concerned Area Residents for Environment v. Southview Farm, 34 F. 3d 114, 118-119 (CA2 1994). On either view, however, the lower courts have seen no need to classify the intervening conduits as “waters of the United States.” In contrast to the pollutants normally covered by the permitting requirement of § 1342(a), “dredged or fill material,” which is typically deposited for the sole purpose of staying put, does not normally wash downstream, and thus does not normally constitute an “addition ... to navigable waters” when deposited in upstream isolated wetlands. §§ 1344(a), 1362(12). The Act recognizes this distinction by providing a separate permitting program for such discharges in § 1344(a). It does not appear, therefore, that the interpretation we adopt today significantly reduces the scope of § 1342. Respondents also urge that the narrower interpretation of “waters” will impose a more difficult burden of proof in enforcement proceedings under §§ 1311(a) and 1342(a), by requiring the agency to demonstrate the downstream flow of the pollutant along the intermittent channel to traditional “waters.” See Tr. of Oral Arg. 57. But, as noted above, the lower courts do not generally rely on characterization of intervening channels as “waters of the United States” in applying § 1311 to the traditional pollutants subject to § 1342. Moreover, the proof of downstream flow of pollutants required under § 1342 appears substantially similar, if not identical, to the proof of a hydrologic connection that would be required, on the Sixth Circuit’s theory of jurisdiction, to prove that an upstream channel or wetland is a “wate[r] of the United States.” See Rapanos II, 376 F. 3d, at 639. Compare, e. g., App. to Pet. for Cert, in No. 04-1034, at Bll, B20, B26 (testimony of hydrologic connections based on observation of surface water connections), with Southview Farm, supra, at 118-121 (testimony of discharges based on observation of the flow of polluted water). In either case, the agency must prove that the contaminant-laden waters ultimately reach covered waters. Finally, respondents and many amici admonish that narrowing the definition of “the waters of the United States” will hamper federal efforts to preserve the Nation’s wetlands. It is not clear that the state and local conservation efforts that the CWA explicitly calls for, see 33 U. S. C. § 1251(b), are in any way inadequate for the goal of preservation. In any event, a Comprehensive National Wetlands Protection Act is not before us, and the “wis[dom]” of such a statute, post, at 805 (opinion of Stevens, J.), is beyond our ken. What is clear, however, is that Congress did not enact one when it granted the Corps jurisdiction over only “the waters of the United States.” VI In an opinion long on praise of environmental protection and notably short on analysis of the statutory text and structure, the dissent would hold that “the waters of the United States” include any wetlands “adjacent” (no matter how broadly defined) to “tributaries” (again, no matter how broadly defined) of traditional navigable waters. For legal support of its policy-laden conclusion, the dissent relies exclusively on two sources: “[o]ur unanimous opinion in Riverside Bayview,” post, at 792; and “Congress’ deliberate acquiescence in the Corps’ regulations in 1977,” post, at 797. Each of these is demonstrably inadequate to support the apparently limitless scope that the dissent would permit the Corps to give to the Act. A The dissent’s assertion that Riverside Bayview “squarely controls these cases,” post, at 792, is wholly implausible. First, Riverside Bayview could not possibly support the dissent’s acceptance of the Corps’ inclusion of dry beds as “tributaries,” post, at 804, because the definition of tributaries was not at issue in that case. Riverside Bayview addressed only the Act’s inclusion of wetlands abutting navigable-in-fact waters, and said nothing at all about what nonnavigable tributaries the Act might also cover. Riverside Bayview likewise provides no support for the dissent’s complacent acceptance of the Corps’ definition of “adjacent,” which (as noted above) has been extended beyond reason to include, inter alia, the 100-year floodplain of covered waters. See supra, at 728. The dissent notes that Riverside Bayview quoted without comment the Corps’ description of “adjacent” wetlands as those “ ‘that form the border of or are in reasonable proximity to other waters’... of the United States.” Post, at 793 (citing 474 U. S., at 134 (quoting 42 Fed. Reg. 37128)). As we have already discussed, this quotation provides no support for the inclusion of physically unconnected wetlands as covered “waters.” See supra, at 741, n. 10. The dissent relies principally on a footnote in Riverside Bayview recognizing that “ ‘not every adjacent wetland is of great importance to the environment of adjoining bodies of water,’ ” and that all “ ‘adjacent’ ” wetlands are nevertheless covered by the Act, post, at 793 (quoting 474 U. S., at 135, n. 9). Of course, this footnote says nothing to support the dissent’s broad definition of “adjacent” — quite the contrary, the quoted sentence uses “adjacent” and “adjoining” interchangeably, and the footnote qualifies a sentence holding that the wetland was covered “fbjecause” it “actually abutfted] on a navigable waterway.” Id., at 135 (emphasis added). Moreover, that footnote’s assertion that the Act may be interpreted to include even those adjoining wetlands that are “lacking in importance to the aquatic environment,” id., at 135, n. 9, confirms that the scope of ambiguity of “the waters of the United States” is determined by a wetland’s physical connection to covered waters, not its ecological relationship thereto. The dissent reasons (1) that Riverside Bayview held that “the waters of the United States” include “adjacent wetlands,” and (2) we must defer to the Corps’ interpretation of the ambiguous word “adjacent.” Post, at 805-806. But this is mere legerdemain. The phrase “adjacent wetlands” is not part of the statutory definition that the Corps is authorized to interpret, which refers only to “the waters of the United States,” 33 U. S. C. § 1362(7). In expounding the term “adjacent” as used in Riverside Bayview, we are explaining our own prior use of that word to interpret the definitional phrase “the waters of the United States.” However ambiguous the term may be in the abstract, as we have explained earlier, “adjacent” as used in Riverside Bayview is not ambiguous between “physically abutting” and merely “nearby.” See supra, at 740-742. The dissent would distinguish SWANCC on the ground that it “had nothing to say about wetlands,” post, at 794— i. e., it concerned “isolated ponds” rather than isolated wetlands. This is the ultimate distinction without a difference. If isolated “permanent and seasonal ponds of varying size ... and depth,” 531 U. S., at 163 — which, after all, might at least be described as “waters” in their own right — did not constitute “waters of the United States,” a fortiori, isolated swampy lands do not constitute “waters of the United States.” See also 474 U. S., at 132. As the author of today’s dissent has written, “[i]f, as I believe, actually navigable waters lie at the very heart of Congress’ commerce power and 'isolated,’ nonnavigable waters lie closer to . . . the margin, 'isolated wetlands,’ which are themselves only marginally 'waters,’ are the most marginal category of 'waters of the United States’ potentially covered by the statute.” 531 U. S., at 187, n. 13 (Stevens, J., dissenting). The only other ground that the dissent offers to distinguish SWANCC is that, unlike the ponds in SWANCC, the wetlands in these cases are “adjacent to navigable bodies of water and their tributaries” — where “adjacent” may be interpreted who-knows-how broadly. It is not clear why roughly defined physical proximity should make such a difference — without actual abutment, it raises no boundary-drawing ambiguity, and it is undoubtedly a poor proxy for ecological significance. In fact, though the dissent is careful to restrict its discussion to wetlands “adjacent” to tributaries, its reasons for including those wetlands are strictly ecological — such wetlands would be included because they “serve . . . important water quality roles,” post, at 796, and “play important roles in the watershed,” post, at 803. This reasoning would swiftly overwhelm SWANCC altogether; after all, the ponds at issue in SWANCC could, no less than the wetlands in these cases, “offer ‘nesting, spawning, rearing and resting sites for aquatic or land species,’” and “‘serve as valuable storage areas for storm and flood waters,’ ” post, at 796. The dissent’s exclusive focus on ecological factors, combined with its total deference to the Corps’ ecological judgments, would permit the Corps to regulate the entire country as “waters of the United States.” B Absent a plausible ground in our case law for its sweeping position, the dissent relies heavily on “Congress’ deliberate acquiescence in the Corps’ regulations in 1977,” post, at 797 — noting that “[w]e found [this acquiescence] significant in Riverside Bay view,” and even “acknowledged in SWANCC” that we had done so, ibid. SWANCC “acknowledged” that Riverside Bayview had relied on congressional acquiescence only to criticize that reliance. It reasserted in no uncertain terms our oft-expressed skepticism toward reading the tea leaves of congressional inaction: “Although we have recognized congressional acquiescence to administrative interpretations of a statute in some situations, we have done so with extreme care. Failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute. . . . The relationship between the actions and inactions of the 95th Congress and the intent of the 92d Congress in passing [§ 1344(a)] is also considerably attenuated. Because subsequent history is less illuminating than the contemporaneous evidence, respondents face a difficult task in overcoming the plain text and import of [§ 1344(a)].” 531 U. S., at 169-170 (brackets, citations, internal quotation marks, and footnote omitted). Congress takes no governmental áction except by legislation. What the dissent refers to as “Congress’ deliberate acquiescence” should more appropriately be called Congress’s failure to express any opinion. We have no idea whether the Members’ failure to act in 1977 was attributable to their belief that the Corps’ regulations were correct, or rather to their belief that the courts would eliminate any excesses, or indeed simply to their unwillingness to confront the environmental lobby. To be sure, we have sometimes relied on congressional acquiescence when there is evidence that Congress considered and rejected the “precise issue” presented before the Court, Bob Jones Univ. v. United States, 461 U. S. 574, 600 (1983) (emphasis added). However, “[a]bsent such overwhelming evidence of acquiescence, we are loath to replace the plain text and original understanding of a statute with an amended agency interpretation.” SWANCC, supra, at 169-170, n. 5 (emphasis added). The dissent falls far short of producing “overwhelming evidence” that Congress considered and failed to act upon the “precise issue” before the Court today — namely, what constitutes an “adjacent” wetland covered by the Act. Citing Riverside Bayview’s account of the 1977 debates, the dissent claims nothing more than that Congress “conducted extensive debates about the Corps’ regulatory jurisdiction over wetlands [and] rejected efforts to limit that jurisdiction____” Post, at 797. In fact, even that vague description goes too far. As recounted in Riverside Bayview, the 1977 debates concerned a proposal to “limi[t] the Corps’ authority under [§ 1344] to waters navigable in fact and their adjacent wetlands (defined as wetlands periodically inundated by contiguous navigable waters),” 474 U. S., at 136. In rejecting this proposal, Congress merely failed to enact a limitation of “waters” to include only navigable-in-fact waters — an interpretation we affirmatively reject today, see supra, at 731 — and a definition of wetlands based on “periodi[e] inundation]” that appears almost nowhere in the briefs or opinions of these cases. No plausible interpretation of this legislative inaction can construe it as an implied endorsement of every jot and tittle of the Corps’ 1977 regulations. In fact, Riverside Bayview itself relied on this legislative inaction only as “at least some evidence of the reasonableness” of the agency’s inclusion of adjacent wetlands under the Act, 474 U. S., at 137, and for the observation that “even those who would have restricted the reach of the Corps’ jurisdiction” would not have excised adjacent wetlands, ibid. Both of these conclusions are perfectly consistent with our interpretation, and neither illuminates the disputed question of what constitutes an “adjacent” wetland. C In a curious appeal to entrenched executive error, the dissent contends that “the appropriateness of the Corps’ 30-year implementation of the Clean Water Act should be addressed to Congress or the Corps rather than to the Judiciary.” Post, at 799; see also post, at 787-788, 807. Surely this is a novel principle of administrative law — a sort of 30-year adverse possession that insulates disregard of statutory text from judicial review. It deservedly has no precedent in our jurisprudence. We did not invoke such a principle in SWANCC, when we invalidated one aspect of the Corps’ implementation. The dissent contends that “[bjecause there is ambiguity in the phrase ‘waters of the United States’ and because interpreting it broadly to cover such ditches and streams advances the purpose of the Act, the Corps’ approach should command our deference.” Post, at 804. Two defects in a single sentence: “[WJaters of the United States” is in some respects ambiguous. The scope of that ambiguity, however, does not conceivably extend to whether storm drains and dry ditches are “waters,” and hence does not support the Corps’ interpretation. And as for advancing “the purpose of the Act”: We have often criticized that last resort of extravagant interpretation, noting that no law pursues its purpose at all costs, and that the textual limitations upon a law’s scope are no less a part of its “purpose” than its substantive authorizations. See, e. g., Director, Office of Workers’ Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U. S. 122, 135-136 (1995). Finally, we could not agree more with the dissent’s statement, post, at 799, that “[wjhether the benefits of particular conservation measures outweigh their costs is a classic question of public policy that should not be answered by appointed judges.” Neither, however, should it be answered by appointed officers of the Corps of Engineers in contradiction of congressional direction. It is the dissent’s opinion, and not ours, which appeals not to a reasonable interpretation of enacted text, but to the great environmental benefits that a patently unreasonable interpretation can achieve. We have begun our discussion by mentioning, to be sure, the high costs imposed by that interpretation — but they are in no way the basis for our decision, which rests, plainly and simply, upon the limited meaning that can be borne by the phrase “waters of the United States.” VII Justice Kennedy’s opinion concludes that our reading of the Act “is inconsistent with its text, structure, and purpose.” Post, at 776. His own opinion, however, leaves the Act’s “text” and “structure” virtually unaddressed, and rests its case upon an interpretation of the phrase “significant nexus,” ibid., which appears in one of our opinions. To begin with, Justice Kennedy’s reading of “significant nexus” bears no easily recognizable relation to either the case that used it (SWANCC) or to the earlier case that that case purported to be interpreting (Riverside Bayview). . To establish a “significant nexus,” Justice Kennedy would require the Corps to “establish ... on a case-by-case basis” that wetlands adjacent to nonnavigable tributaries “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” Post, at 782, 780. This standard certainly does not come from Riverside Bayview, which explicitly rejected such case-by-case determinations of ecological significance for the jurisdictional question whether a wetland is covered, holding instead that all physically connected wetlands are covered. 474 U. S., at 135, n. 9. It is true enough that one reason for accepting that physical-connection criterion was the likelihood that a physically connected wetland would have an ecological effect upon the adjacent waters. But case-by-case determination of ecological effect was not the test. Likewise, that test cannot be derived from SWANCC’s characterization of Riverside Bayview, which emphasized that the wetlands which possessed a “significant nexus” in that earlier case “actually abutted on a navigable waterway,” 531 U. S., at 167, and which specifically rejected the argument that physically unconnected ponds could be included based on their ecological connection to covered waters. In fact, Justice Kennedy acknowledges that neither Riverside Bayview nor SWANCC required, for wetlands abutting navigable-in-fact waters, the case-by-case ecological determination that he proposes for wetlands that neighbor non-navigable tributaries. See post, at 780. Thus, JUSTICE Kennedy misreads SWANCC’,s “significant nexus” statement as mischaracterizing Riverside Bayview to adopt a case-by-case test of ecological significance; and then transfers that standard to a context that Riverside Bayview expressly declined to address (namely, wetlands nearby non-navigable tributaries); while all the time conceding that this standard does not apply in the context that Riverside Bay-view did address (wetlands abutting navigable waterways). Truly, this is “turtles all the way down.” But misreading our prior decisions is not the principal problem. The principal problem is reading them in utter isolation from the text of the Act. One would think, after reading Justice Kennedy’s exegesis, that, the crucial provision of the text of the CWA was a jurisdictional requirement of “significant nexus” between wetlands and navigable waters. In fact, however, that phrase appears nowhere in the Act, but is taken from SWANCC’s cryptic characterization of the holding of Riverside Bayview. Our interpretation of the phrase is both consistent with those opinions and compatible with what the Act does establish as the jurisdictional criterion: “waters of the United States.” Wetlands are “waters of the United States” if they bear the “significant nexus” of physical connection, which makes them as a practical matter indistinguishable from waters of the United States. What other nexus could conceivably cause them to be “waters of the United States”? Justice Kennedy’s test is that they, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable,’” post, at 780 (emphasis added). But what possible linguistic usage would accept that whatever (alone or in combination) affects waters of the United States is waters of the United States? Only by ignoring the text of the statute and by assuming that the phrase of SWANCC (“significant nexus”) can properly be interpreted in isolation from that text does JUSTICE Kennedy reach the conclusion he has arrived at. Instead of limiting its meaning by reference to the text it was applying, he purports to do so by reference to what he calls the “purpose” of the statute. Its purpose is to clean up the waters of the United States, and therefore anything that might “significantly affect” the purity of those waters bears a “significant nexus” to those waters, and thus (he never says this, but the text of the statute demands that he mean it) is those waters. This is the familiar tactic of substituting the purpose of the statute for its text, freeing the Court to write a different statute that achieves the same purpose. To begin with, as we have discussed earlier, clean water is not the only purpose of the statute. So is the preservation of primary state responsibility for ordinary land-use decisions. 33 U. S. C. § 1251(b). Justice Kennedy’s test takes no account of this purpose. More fundamentally, however, the test simply rewrites the statute, using for that purpose the gimmick of “significant nexus.” It would have been an easy matter for Congress to give the Corps jurisdiction over all wetlands (or, for that matter, all dry lands) that “significantly affect the chemical, physical, and biological integrity of” waters of the United States. It did not do that, but instead explicitly limited jurisdiction to “waters of the United States.” Justice Kennedy’s disposition would disallow some of the Corps’ excesses, and in that respect is a more moderate flouting of statutory command than Justice Stevens’. In another respect, however, it is more extreme. At least Justice Stevens can blame his implausible reading of the statute upon the Corps. His error consists of giving that agency more deference than reason permits. Justice Kennedy, however, has devised his new statute all on his own. It purports to be, not a grudging acceptance of an agency’s close-to-the-edge expansion of its own powers, but rather the most reasonable interpretation of the law. It is far from that, unless whatever affects waters is waters. VIII Because the Sixth Circuit applied the wrong standard to determine if these wetlands are covered “waters of the United States,” and because of the paucity of the record in both of these cases, the lower courts should determine, in the first instance, whether the ditches or drains near each wetland are “waters” in the ordinary sense of containing a relatively permanent flow; and (if they are) whether the wetlands in question are “adjacent” to these “waters” in the sense of possessing a continuous surface connection that creates the boundary-drawing problem we addressed in Riverside Bayview. * * * We vacate the judgments of the Sixth Circuit in both No. 04-1034 and No. 04-1384, and remand both cases for further proceedings. It is so ordered. In issuing permits, the Corps directs that “[a]ll factors which may be relevant to the proposal must be considered including the cumulative effects thereof: among those are conservation, economies, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people.” § 320.4(a). We are indebted to the Sonoran court for a famous exchange, from the movie Casablanca (Warner Bros. 1942), which portrays most vividly the absurdity of finding the desert filled with waters: “ ‘Captain Renault [Claude Rains]: “What in heaven’s name brought you to Casablanca?” “‘Rick [Humphrey Bogart]: “My health. I came to Casablanca for the waters.” “ ‘Captain Renault: “The waters? What waters? We’re in the desert.” “ ‘Rick: “I was misinformed.” ’ ” 408 F. 3d, at 1117. One possibility, which we ultimately find unsatisfactory, is that the “other” waters covered by 33 U. S. C. § 1344(g)(1) are strictly intrastate waters that are traditionally navigable. But it would be unreasonable to interpret “the waters of the United States” to include all and only traditional navigable waters, both interstate and intrastate. This would preserve the traditional import of the qualifier “navigable” in the defined term “navigable waters,” at the cost of depriving the qualifier “of the United States” in the definition of all meaning. As traditionally understood, the latter qualifier excludes intrastate waters, whether navigable or not. See The Daniel Ball, 10 Wall. 557, 563 (1871). In SWANCC, we held that “navigable” retained something of its traditional import. 531 U. S., at 172. A fortiori, the phrase “of the United States” in the definition retains some of its traditional meaning. Justice Kennedy observes, post, at 770 (opinion concurring in judgment), that the dictionary approves an alternative, somewhat poetic usage of “waters” as connoting “[a] flood or inundation; as the waters have fallen. ‘The peril of waters, wind, and rocks.' Shak." Webster’s Second 2882. It seems to us wholly unreasonable to interpret the statute as regulating only “floods” and “inundations” rather than traditional waterways — and strange to suppose that Congress had waxed Shakespearean in the definition section of an otherwise prosaic, indeed downright tedious, statute. The duller and more commonplace meaning is obviously intended. By describing “waters” as “relatively permanent,” we do not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought. We also do not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months — such as the 290-day, continuously flowing stream postulated by Justice Stevens’ dissent (hereinafter the dissent), post, at 800. Common sense and common usage distinguish between a wash and seasonal river. Though scientifically precise distinctions between “perennial” and “intermittent” flows are no doubt available, see, e. g., Dept, of Interior, U. S. Geological Survey, E. Hedman & W. Osterkamp, Streamflow Characteristics Related to Channel Geometry of Streams in Western United States 15 (1982) (Water-Supply Paper 2193), we have no occasion in this litigation to decide exactly when the drying-up of a streambed is continuous and frequent enough to disqualify the channel as a “wate[r] of the United States.” It suffices for present purposes that channels containing permanent flow are plainly within the definition, and that the dissent’s “intermittent” and “ephemeral” streams, post, at 801 — that is, streams whose flow is “[doming and going at intervals ... [b]roken, fitful,” Webster’s Second 1296, or “existing only, or no longer than, a day; diurnal. . . short-lived,” id., at 857 — are not. The principal definition of “stream” likewise includes reference to such permanent, geographically fixed bodies of water: “[a] current or course of water or other fluid, flowing on the earth, as a river, brook, etc.” Id., at 2493 (emphasis added). The other definitions of “stream” repeatedly emphasize the requirement of continuous flow: “[a] steady flow, as of water, air, gas, or the like”; “[a]nything issuing or moving with continued succession of parts”; “[a] continued current or course; current; drift.” Ibid, (emphasis added). The definition of the verb form of “stream” contains a similar emphasis on continuity: “[t]o issue or flow in a stream; to issue freely or move in a continuous flow or course.” Ibid, (emphasis added). On these definitions, therefore, the Corps’ phrases “intermittent streams,” 33 CFR §328.3(a)(3) (2004), and “ephemeral streams,” 65 Fed. Reg. 12823 (2000), are — like Senator Bentsen’s “ ‘flowing gullies,’ ” post, at 801, n. 11 (opinion of Stevens, J.) — useful oxymora. Properly speaking, such' entities constitute extant “streams” only while they are “continuously] ñow[ing]”; and the usually dry channels that contain them are never “streams.” Justice Kennedy apparently concedes that “an intermittent flow can constitute a stream” only “while it is flowing,” post, at 770 (emphasis added) — which would mean that the channel is a “water” covered by the Act only during those times when water flow actually occurs. But no one contends that federal jurisdiction appears and evaporates along with the water in such regularly dry channels. It is of course true, as the dissent and Justice Kennedy both observe, that ditches, channels, conduits and the like “can all hold water permanently as well as intermittently,” post, at 802 (opinion of Stevens, J.); see also post, at 771-772 (opinion of Kennedy, J.). But when they do, we usually refer to them as “rivers,” “creeks,” or “streams.” A permanently flooded ditch around a castle is technically a “ditch,” but (because it is permanently filled with water) we normally describe it as a “moat.” See Webster’s Second 1575. ■ And a permanently flooded man-made ditch used for navigation is normally described, not as a “ditch,” but as a “canal.” See id., at 388. Likewise, an open channel through which water permanently flows is ordinarily described as a “stream,” not as a “channel,” because of the continuous presence of water. This distinction is particularly apt in the context of a statute regulating water quality, rather than (for example) the shape of streambeds. Cf. Jennison v. Kirk, 98 U. S. 453, 454-456 (1879) (referring to man-made channels as “ditches” when the alleged injury arose from physical damage to the banks of the ditch); PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700, 709 (1994) (referring to a water-filled tube as a “tunnel” in order to describe the shape of the conveyance, not the fact that it was water-filled), both cited post, at 802, n. 12 (opinion of Stevens, J.). On its only natural reading, such a statute that treats “waters” separately from “ditch[es], channel[s], tunnel[s], and eonduit[s],” thereby distinguishes between continuously flowing “waters” and channels containing only an occasional or intermittent flow. It is also true that highly artificial, manufactured, enclosed conveyance systems — such as “sewage treatment plants,” post, at 772 (opinion of Kennedy, J.), and the “mains, pipes, hydrants, machinery, buildings, and other appurtenances and incidents” of the city of Knoxville’s “system of waterworks,” Knoxville Water Co. v. Knoxville, 200 U. S. 22, 27 (1906), cited post, at 802, n. 12 (opinion of Stevens, J.) — likely do not qualify as “waters of the United States,” despite the fact that they may contain continuous flows of water. See post, at 772 (opinion of Kennedy, J.); post, at 802, n. 12 (opinion of Stevens, J.). But this does not contradict our interpretation, which asserts that relatively continuous flow is a necessary condition for qualification as a “water,” not an adequate condition. Just as ordinary usage does not treat typically dry beds as “waters,” so also it does not treat such elaborate, man-made, enclosed systems as “waters” on a par with “streams,” “rivers,” and “oceans.” Justice Kennedy contends that the Corps’ preservation of the “responsibilities and rights” of the States is adequately demonstrated by the fact that “33 States plus the District of Columbia have filed an amici brief in this litigation” in favor of the Corps’ interpretation, post, at 777. But it makes no difference to the statute’s stated purpose of preserving States’ “responsibilities and rights,” § 1251(b), that some States wish to unburden themselves of them. Legislative and executive officers of the States may be content to leave “responsibility]” with the Corps because it is attractive to shift to another entity controversial decisions disputed between politically powerful, rival interests. That, however, is not what the statute provides. Justice Kennedy objects that our reliance on these two dear-statement rules is inappropriate because “the plurality’s interpretation does not fit the avoidance concerns that it raises,” post, at 776 — that is, because our resolution both eliminates some jurisdiction that is clearly constitutional and traditionally federal, and retains some that is questionably constitutional and traditionally local. But a elear-statement rule can carry one only so far as the statutory text permits. Our resolution, unlike Justice Kennedy’s, keeps both the overinclusion and the underinelusion to the minimum consistent with the statutory text. Justice Kennedy’s reading — despite disregarding the text — fares no better than ours as a precise “fit” for the “avoidance concerns” that he also acknowledges. He admits, post, at 782, that “the significant-nexus requirement may not align perfectly with the traditional extent of federal authority” over navigable waters — an admission that “tests the limits of understatement,” Gonzales v. Oregon, 546 U. S. 243, 286 (2006) (Scalia, J., dissenting) — and it aligns even worse with the preservation of traditional state land-use regulation. “Since the wetlands at issue in Riverside Bayview actually abutted waters of the United States, the case could not possibly have held that merely “neighboring” wetlands came within the Corps’ jurisdiction. Obiter approval of that proposition might be inferred, however, from the opinion’s quotation without comment of a statement by the Corps describing covered “adjacent” wetlands as those “ ‘that form the border of or are in reasonable proximity to other waters of the United States.’ ” 474 U. S., at 134 (quoting 42 Fed. Reg. 37128 (1977); emphasis added). The opinion immediately reiterated, however, that adjacent wetlands could be regarded as “the waters of the United States” in view of “the inherent difficulties of defining precise bounds to regulable waters,” 474 U. S., at 134 — a rationale that would have no application to physically separated “neighboring” wetlands. Given that the wetlands at issue in Riverside Bayview themselves “actually abut[ted] on a navigable waterway,” id., at 135; given that our opinion recognized that unconnected wetlands could not naturally be characterized as “ ‘waters’ ” at all, id., at 132; and given the repeated reference to the difficulty of determining where waters end and wetlands begin; the most natural reading of the opinion is that a wetlands’ mere “reasonable proximity” to waters of the United States is not enough to confer Corps jurisdiction. In any event, as discussed in our immediately following text, any possible ambiguity has been eliminated by SWANCC, 531 U. S. 159 (2001). The dissent argues that “the very existence of words like ‘alluvium’ and ‘silt’ in our language suggests that at least some [dredged or fill material] makes its way downstream,” post, at 807 (citation omitted). See also post, at 774-775 (opinion of Kennedy, J.). By contrast, amici cite multiple empirical analyses that contradict the dissent’s philological approach to sediment erosion — including one which concludes that “[t]he idea that the discharge of dredged or fill material into isolated waters, ephemeral drains or non-tidal ditches will pollute navigable waters located any appreciable distance from them lacks credibility.” R. Pierce, Technical Principles Related to Establishing the Limits of Jurisdiction for Section 404 of the Clean Water Act 34-40 (Apr. 2003), available at http://www.wetland training.com/tpreljscwa.pdf, cited in Brief for International Council of Shopping Centers et al. as Amici Curiae 26-27; Brief for Pulte Homes, Inc., et al. as Amici Curiae 20-21; Brief for Foundation for Environmental and Economic Progress et al. as Amici Curiae 29, and n. 53 (“Fill material does not migrate”). Such scientific analysis is entirely unnecessary, however, to reach the unremarkable conclusion that the deposit of mobile pollutants into upstream ephemeral channels is naturally described as an “addition ... to navigable waters,” 33 U. S. C. § 1362(12), while the deposit of stationary fill material generally is not. Nor does the passing reference to “wetlands adjacent thereto” in § 1344(g)(1) purport to expand that statutory definition. As the dissent concedes, post, at 805, that reference merely confirms that the statutory definition can be read to include some wetlands — namely, those that directly “abut” covered waters. Riverside Bayview explicitly acknowledged that § 1344(g)(1) “does not conclusively determine the construction to be placed on the use of the term ‘waters’ elsewhere in the Act (particularly in [§1862(7)], which contains the relevant definition of ‘navigable waters’); however, ... it does at least suggest strongly that the term ‘waters’ as used in the Act does not necessarily exclude ‘wetlands.’ ” 474 U. S., at 138, n. 11 (emphasis added). The sole exception is in Justice Kennedy’s opinion, which argues that Riverside Bayview rejected our physical-connection requirement by accepting as a given that any wetland formed by inundation from covered waters (whether or not continuously connected to them) is covered by the Act: “The Court in Riverside Bayview ... did not suggest that a flood-based origin would not support jurisdiction; indeed, it presumed the opposite. See 474 U. S., at 134 (noting that the Corps’ view was valid ‘even for wetlands that are not the result of flooding or permeation’ (emphasis added)).” Post, at 773. Of course Justice Kennedy himself fails to observe this supposed presumption, since his “significant nexus” test makes no exception for wetlands created by inundation. In any event, the language from Riverside Bayview in Justice Kennedy’s parenthetical is wrenched out of context. The sentence which Justice Kennedy quotes in part immediately followed the Court’s conclusion that “adjacent” wetlands are included because of “the inherent difficulties of defining precise bounds to regulable waters,” 474 U. S., at 134. And the full sentence reads as follows: “This holds true even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water,” ibid, (emphasis added). Clearly, the “wetlands” referred to in the sentence are only “adjacent” wetlands — namely, those with the continuous physical connection that the rest of the Riverside Bayview opinion required, see supra, at 740-742. Thus, it is evident that the quoted language was not at all a rejection of the physical-connection requirement, but rather a rejection of the alternative position (which had been adopted by the lower court in that case, see 474 U. S., at 125) that the only covered wetlands are those created by inundation. As long as the wetland is “adjacent” to covered waters, said Riverside Bayview, its creation vel non by inundation is irrelevant. The allusion is to a classic story told in different forms and attributed to various authors. See, e. g., Geertz, Thick Description: Toward an Interpretive Theory of Culture, in The Interpretation of Cultures 28-29 (1973). In our favored version, an Eastern guru affirms that the earth is supported on the back of a tiger. When asked what supports the tiger, he says it stands upon an elephant; and when asked what supports the elephant he says it is a giant turtle. When asked, finally, what supports the giant turtle, he is briefly taken aback, but quickly replies “Ah, after that it is turtles all the way down.” It is unclear how much more moderate the flouting is, since Justice Kennedy’s “significant nexus” standard is perfectly opaque. When, exactly, does a wetland “significantly affect” covered waters, and when are its effects “in contrast . . . speculative or insubstantial”? Post, at 780. Justice Kennedy does not tell us clearly — except to suggest, post, at 782, that “ ‘ “isolated” is generally a matter of degree’ ” (quoting Leibowitz & Nadeau, Isolated Wetlands: State-of-the-Science and Future Directions, 23 Wetlands 663, 669 (2003)). As the dissent hopefully observes, post, at 808, such an unverifiable standard is not likely to constrain an agency whose disregard for the statutory language has been so long manifested. In fact, by stating that “[i]n both the consolidated eases before the Court the record contains evidence suggesting the possible existence of a significant nexus according to the principles outlined above,” post, at 783, Justice Kennedy tips a wink at the agency, inviting it to try its same expansive reading again.

Rapanos v. United States

Chief Justice Roberts, concurring. Five years ago, this Court rejected the position of the Army Corps of Engineers on the scope of its authority to regulate wetlands under the Clean Water Act, 86 Stat. 816, as amended, 33 U. S. C. § 1251 et seq. Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC). The Corps had taken the view that its. authority was essentially limitless; this Court explained that such a boundless view was inconsistent with the limiting terms Congress had used in the Act. Id., at 167-174. In response to the SWANCC decision, the Corps and the Environmental Protection Agency (EPA) initiated a rule-making to consider “issues associated with the scope of waters that are subject to the Clean Water Act (CWA), in light of the U. S. Supreme Court decision in [SWANCC].” 68 Fed. Reg. 1991 (2003). The “goal of the agencies” was “to develop proposed regulations that will further the public interest by clarifying what waters are subject to CWA jurisdiction and affording full protection to these waters through an appropriate focus of Federal and State resources consistent with the CWA.” Ibid. Agencies delegated rulemaking authority under a statute such as the Clean Water Act are afforded generous leeway by the courts in interpreting the statute they are entrusted to administer. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984). Given the broad, somewhat ambiguous, but nonetheless clearly limiting terms Congress employed in the Clean Water Act, the Corps and the EPA would have enjoyed plenty of room to operate in developing some notion of an outer bound to the reach of their authority. The proposed rulemaking went nowhere. Rather than refining its view of its authority in light of our decision in SWANCC, and providing guidance meriting deference under our generous standards, the Corps chose to adhere to its essentially boundless view of the scope of its power. The upshot today is another defeat for the agency. It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis. This situation is certainly not unprecedented. See Grutter v. Bollinger, 539 U. S. 306, 325 (2003) (discussing Marks v. United States, 430 U. S. 188 (1977)). What is unusual in this instance, perhaps, is how readily the situation could have been avoided. The scope of the proposed rulemaking was not as narrow as Justice Stevens suggests, post, at 795-796, n. 4 (dissenting opinion). See 68 Fed. Reg. 1994 (2003) (“Additionally, we invite your views as to whether any other revisions are needed to the existing regulations on which waters are jurisdictional under the CWA”); id., at 1992 (“Today’s [notice of proposed rulemaking] seeks public input on what, if any, revisions in light of SWANCC might be appropriate to the regulations that define ‘waters of the U. S.’, and today’s [notice] thus would be of interest to all entities discharging to, or regulating, such waters” (emphasis added)). The agencies can decide for themselves whether, as the SWANCC dissenter suggests, it was wise for them to take no action in response to SWANCC.

Rapanos v. United States

Justice Kennedy, concurring in the judgment. These consolidated cases require the Court to decide whether the term “navigable waters” in the Clean Water Act extends to wetlands that do not contain and are not adjacent to waters that are navigable in fact. In Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC), the Court held, under the circumstances presented there, that to constitute “ ‘navigable waters’ ” under the Act, a water or wetland must possess a “significant nexus” to waters that are or were navigable in fact or that could reasonably be so made. Id., at 167, 172. In the instant cases neither the plurality opinion nor the dissent by Justice Stevens chooses to apply this test; and though the Court of Appeals recognized the test’s applicability, it did not consider all the factors necessary to determine whether the lands in question had, or did not have, the requisite nexus. In my view the cases ought to be remanded to the Court of Appeals for proper consideration of the nexus requirement. I Although both the plurality opinion and the dissent by Justice Stevens (hereinafter the dissent) discuss the background of these cases in some detail, a further discussion of the relevant statutes, regulations, and facts may clarify the analysis suggested here. A The “objective” of the Clean Water Act (or Act) is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U. S. C. § 1251(a). To that end, the statute, among other things, prohibits “the discharge of any pollutant by any person” except as provided in the Act. § 1311(a). As relevant here, the term “discharge of a pollutant” means “any addition of any pollutant to navigable waters from any point source.” § 1362(12). The term “pollutant” is defined as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” §1362(6). The Secretary of the Army, acting through the Chief of Engineers of the Army Corps of Engineers, may issue permits for “discharge of dredged or fill material into the navigable waters at specified disposal sites.” §§ 1344(a), (c), (d); but see § 1344(f) (categorically exempting certain forms of “discharge of dredged or fill material” from regulation under § 1311(a)). Pursuant to § 1344(g), States with qualifying programs may assume certain aspects of the Corps’ permitting responsibility. Apart from dredged or fill material, pollutant discharges require a permit from the Environmental Protection Agency (EPA), which also oversees the Corps’ (and qualifying States’) permitting decisions. See §§ 1311(a), 1342(a), 1344(c). Discharge of pollutants without an appropriate permit may result in civil or criminal liability. See § 1319. The statutory term to be interpreted and applied in the two instant cases is the term “navigable waters.” The outcome turns on whether that phrase reasonably describes certain Michigan wetlands the Corps seeks to regulate. Under the Act “[t]he term ‘navigable waters’ means the waters of the United States, including the territorial seas.” § 1362(7). In a regulation the Corps has construed the term “waters of the United States” to include not only waters susceptible to use in interstate commerce — the traditional understanding of the term “navigable waters of the United States,” see, e. g., United States v. Appalachian Elec. Power Co., 311 U. S. 377, 406-408 (1940); The Daniel Ball, 10 Wall. 557, 563-564 (1871) — but also tributaries of those waters and, of particular relevance here, wetlands adjacent to those waters or their tributaries. 33 CFR §§ 328.3(a)(1), (5), (7) (2005). The Corps views tributaries as within its jurisdiction if they carry a perceptible “ordinary high water mark.” § 328.4(c); 65 Fed. Reg. 12823 (2000). An ordinary high-water mark is a “line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.” 33 CFR § 328.3(e). Contrary to the plurality’s description, ante, at 722, 734, wetlands are not simply moist patches of earth. They are defined as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.” § 328.3(b). The Corps’ Wetlands Delineation Manual, including over 100 pages of technical guidance for Corps officers, interprets this definition of wetlands to require: (1) prevalence of plant species typically adapted to saturated soil conditions, determined in accordance with the United States Fish and Wildlife Service’s National List of Plant Species that Occur in Wetlands; (2) hydric soil, meaning soil that is saturated, flooded, or ponded for sufficient time during the growing season to become anaerobic, or lacking in oxygen, in the upper part; and (3) wetland hydrology, a term generally requiring continuous inundation or saturation to the surface during at least five percent of the growing season in most years. See Wetlands Research Program Technical Report Y-87-1 (online edition), pp. 12-34 (Jan. 1987), http://www.saj .usace. army.mil/permit/documents/87manual.pdf (all Internet materials as visited June 16, 2006, and available in Clerk of Court’s case file). Under the Corps’ regulations, wetlands are adjacent to tributaries, and thus covered by the Act, even if they are “separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.” § 328.3(c). B The first consolidated case before the Court, Rapanos v. United States, No. 04-1034, relates to a civil enforcement action initiated by the United States in the United States District Court for the Eastern District of Michigan against the owners of three land parcels near Midland, Michigan. The first parcel, known as the Salzburg site, consists of roughly 230 acres. The District Court, applying the Corps’ definition of wetlands, found based on expert testimony that the Salzburg site included 28 acres of wetlands. The District Court further found that “the Salzburg wetlands have a surface water connection to tributaries of the Kawkawlin River which, in turn, flows into the Saginaw River and ultimately into Lake Huron.” App. to Pet. for Cert. Bll. Water from the site evidently spills into the Hoppler Drain, located just north of the property, which carries water into the Hoppler Creek and thence into the Kawkawlin River, which is navigable. A state official testified that he observed carp spawning in a ditch just north of the property, indicating a direct surface-water connection from the ditch to the Saginaw Bay of Lake Huron. The second parcel, known as the Hines Road site, consists of 275 acres, which the District Court found included 64 acres of wetlands. The court found that the wetlands have a surface-water connection to the Rose Drain, which carries water into the Tittabawassee River, a navigable waterway. The final parcel, called the Pine River site, consists of some 200 acres. The District Court found that 49 acres were wetlands and that a surface-water connection linked the wetlands to the nearby Pine River, which flows into Lake Huron. At all relevant times, John Rapanos owned the Salzburg site; a company he controlled owned the Hines Road site; and Rapanos’ wife and a company she controlled (possibly in connection with another entity) owned the Pine River site. All these parties are petitioners here. In December 1988, Mr. Rapanos, hoping to construct a shopping center, asked the Michigan Department of Natural Resources to inspect the Salzburg site. A state official informed Rapanos that while the site likely included regulated wetlands, Rapanos could proceed with the project if the wetlands were delineated (that is, identified and preserved) or if a permit were obtained. Pursuing the delineation option, Rapanos hired a wetlands consultant to survey the property. The results evidently displeased Rapanos: Informed that the site included between 48 and 58 acres of wetlands, Rapanos allegedly threatened to “destroy” the consultant unless he eradicated all traces of his report. Rapanos then ordered $350,000-worth of earthmoving and landclearing work that filled in 22 of the 64 wetlands acres on the Salzburg site. He did so without a permit and despite receiving cease-and-desist orders from state officials and the EPA. At the Hines Road and Pine River sites, construction work — again conducted in violation of state and federal compliance orders— altered an additional 17 and 15 wetlands acres, respectively. The Federal Government brought criminal charges against Rapanos. In the suit at issue here, however, the United States alleged civil violations of the Clean Water Act against all the Rapanos petitioners. Specifically, the Government claimed that petitioners discharged fill into jurisdictional wetlands, failed to respond to requests for information, and ignored administrative compliance orders. See 33 U. S. C. §§ 1311(a), 1318(a), 1319(a). After a 13-day bench trial, the District Court made the findings noted earlier and, on that basis, upheld the Corps’ jurisdiction over wetlands on the three parcels. On the merits the court ruled in the Government’s favor, finding that violations occurred at all three sites. As to two other sites, however, the court rejected the Corps’ claim to jurisdiction, holding that the Government had failed to carry its burden of proving the existence of wetlands under the three-part regulatory definition. (These two parcels are no longer at issue.) The United States Court of Appeals for the Sixth Circuit affirmed. 376 F. 3d 629, 634 (2004). This Court granted certiorari to consider the Corps’ jurisdiction over wetlands on the Salzburg, Hines Road, and Pine River sites. 546 U. S. 932 (2005). The second consolidated case, Carabell, No. 04-1384, involves a parcel shaped like a right triangle and consisting of some 19.6 acres, 15.9 of which are forested wetlands. 257 F. Supp. 2d 917, 923 (ED Mich. 2003). The property is located roughly one mile from Lake St. Clair, a 430-square-mile lake located between Michigan and Canada that is popular for boating and fishing and produces some 48 percent of the sport fish caught in the Great Lakes, see Brief for Ma-comb County, Michigan, as Amicus Curiae 2. The right-angle corner of the property is located to the northwest. The hypotenuse, which runs from northeast to southwest, lies alongside a man-made berm that separates the property from a ditch. At least under current conditions — that is, without the deposit of fill in the wetlands that the landowners propose — the berm ordinarily, if not always, blocks surface-water flow from the wetlands into the ditch. But cf. App. 186a (administrative hearing testimony by consultant for Carabells indicating “you would start seeing some overflow” in a “ten year storm”). Near the northeast corner of the property, the ditch connects with the SutherlandOemig Drain, which carries water continuously throughout the year and empties into Auvase Creek. The creek in turn empties into Lake St. Clair. At its southwest end, the ditch connects to other ditches that empty into the Auvase Creek and thence into Lake St. Clair. In 1993 petitioners Keith and June Carabell sought a permit from the Michigan Department of Environmental Quality (MDEQ), which has assumed permitting functions of the Corps pursuant to § 1344(g). Petitioners hoped to fill in the wetlands and construct 130 condominium units. Although the MDEQ denied the permit, a State Administrative Law Judge directed the agency to approve an alternative plan, proposed by the Carabells, that involved the construction of 112 units. This proposal called for filling in 12.2 acres of the property while creating retention ponds on 3.74 acres. Because the EPA had objected to the permit, jurisdiction over the case transferred to the Corps. See § 1344(j). The Corps’ district office concluded that the Carabells’ property “provides water storage functions that, if destroyed, could result in an increased risk of erosion and degradation of water quality in the Sutherland-Oemig Drain, Auvase Creek, and Lake St. Clair.” Id., at 127a. The district office denied the permit, and the Corps upheld the denial in an administrative appeal. The Carabells, challenging both the Corps’ jurisdiction and the merits of the permit denial, sought judicial review pursuant to the Administrative Procedure Act, 5 U.S.C. §706(2)(A). The United States District Court for the Eastern District of Michigan granted summary judgment to the Corps, 257 F. Supp. 2d 917 (2003), and the United States Court of Appeals for the Sixth Circuit affirmed, 391 F. 3d 704 (2004). This Court granted certiorari to consider the jurisdictional question. 546 U. S. 932 (2005). II Twice before the Court has construed the term “navigable waters” in the Clean Water Act. In United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985), the Court upheld the Corps’ jurisdiction over wetlands adjacent to navigable-in-fact waterways. Id., at 139. The property in Riverside Bayview, like the wetlands in the Carabell case now before the Court, was located roughly one mile from Lake St. Clair, see United States v. Riverside Bayview Homes, Inc., 729 F. 2d 391, 392 (CA6 1984) (decision on review in Riverside Bayview), though in that case, unlike Carabell, the lands at issue formed part of a wetland that directly abutted a navigable-in-fact creek, 474 U. S., at 131. In regulatory provisions that remain in effect, the Corps had concluded that wetlands perform important functions such as filtering and purifying water draining into adjacent water bodies, 33 CFR § 320.4(b)(2)(vii) (1985), slowing the flow of runoff into lakes, rivers, and streams so as to prevent flooding and erosion, §§320.4(b)(2)(iv), (v), and providing critical habitat for aquatic animal species, § 320.4(b)(2)(i). 474 U. S., at 134-135. Recognizing that “[a]n agency’s construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress,” id., at 131 (citing Chemical Mfrs. Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 125 (1985), and Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984)), the Court held that “the Corps’ ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act,” 474 U. S., at 134. The Court reserved, however, the question of the Corps’ authority to regulate wetlands other than those adjacent to open waters. See id., at 131-132, n. 8. In SWANCC, the Court considered the validity of the Corps’ jurisdiction over ponds and mudflats that were isolated in the sense of being unconnected to other waters covered by the Act. 531 U. S., at 171. The property at issue was an abandoned sand and gravel pit mining operation where “remnant excavation trenches” had “evolv[ed] into a scattering of permanent and seasonal ponds.” Id., at 163. Asserting jurisdiction pursuant to a regulation called the “Migratory Bird Rule,” the Corps argued that these isolated ponds were “waters of the United States” (and thus “navigable waters” under the Act) because they were used as habitat by migratory birds. Id., at 164-165. The Court rejected this theory. “It was the significant nexus between wetlands and ‘navigable waters/ ” the Court held, “that informed our reading of the [Act] in Riverside Bayview Homes.” Id., at 167. Because such a nexus was lacking with respect to isolated ponds, the Court held that the plain text of the statute did not permit the Corps’ action. Id., at 172. Riverside Bayview and SWANCC establish the framework for the inquiry in the cases now before the Court: Do the Corps’ regulations, as applied to the wetlands in Carabell and the three wetlands parcels in Rapanos, constitute a reasonable interpretation of “navigable waters” as in Riverside Bayview or an invalid construction as in SWANCC? Taken together these cases establish that in some instances, as exemplified by Riverside Bayview, the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a “navigable water” under the Act. In other instances, as exemplified by SWANCC, there may be little or no connection. Absent a significant nexus, jurisdiction under the Act is lacking. Because neither the plurality nor the dissent addresses the nexus requirement, this separate opinion, in my respectful view, is necessary. A The plurality’s opinion begins from a correct premise. As the plurality points out, and as Riverside Bayview holds, in enacting the Clean Water Act Congress intended to regulate at least some waters that are not navigable in the traditional sense. Ante, at 731; Riverside Bayview, supra, at 133; see also SWANCC, supra, at 167. This conclusion is supported by “the evident breadth of congressional concern for protection of water quality and aquatic ecosystems.” Riverside Bayview, supra, at 133; see also Milwaukee v. Illinois, 451 U. S. 304, 318 (1981) (describing the Act as “an all-encompassing program of water pollution regulation”). It is further compelled by statutory text, for the text is explicit in extending the coverage of the Act to some nonnavigable waters. In a provision allowing States to assume some regulatory functions of the Corps (an option Michigan has exercised), the Act limits States to issuing permits for: “the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to their ordinary high water mark, or mean higher high water mark on the west coast, including wetlands adjacent thereto) within its jurisdiction.” 33 U. S. C. § 1344(g)(1). Were there no Clean Water Act “navigable waters” apart from waters “presently used” or “susceptible to use” in interstate commerce, the “other than” clause, which begins the long parenthetical statement, would overtake the delegation of authority the provision makes at the outset. Congress, it follows, must have intended a broader meaning for navigable waters. The mention of wetlands in the “other than” clause, moreover, makes plain that at least some wetlands fall within the scope of the term “navigable waters.” See Riverside Bayview, supra, at 138-139, and n. 11. From this reasonable beginning the plurality proceeds to impose two limitations on the Act; but these limitations, it is here submitted, are without support in the language and purposes of the Act or in our cases interpreting it. First, because the dictionary defines “waters” to mean “water ‘[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes,’ or ‘the flowing or moving masses, as of waves or floods, making up such streams or bodies/ ” ante, at 732 (quoting Webster’s New International Dictionary 2882 (2d ed. 1954) (hereinafter Webster’s Second)), the plurality would conclude that the phrase “navigable waters” permits Corps and EPA jurisdiction only over “relatively permanent, standing or flowing bodies of water,” ante, at 732 — a category that in the plurality’s view includes “seasonal” rivers, that is, rivers that carry water continuously except during “dry months,” but not intermittent or ephemeral streams, ante, at 732-734, and n. 5. Second, the plurality asserts that wetlands fall within the Act only if they bear “a continuous surface connection to bodies that are 'waters of the United States’ in their own right” — waters, that is, that satisfy the plurality’s requirement of permanent standing water or continuous flow. Ante, at 742. The plurality’s first requirement — permanent standing water or continuous flow, at least for a period of “some months,” ante, at 732-733, and n. 5 — makes little practical sense in a statute concerned with downstream water quality. The merest trickle, if continuous, would count as a “water” subject to federal regulation, while torrents thundering at irregular intervals through otherwise dry channels would not. Though the plurality seems to presume that such irregular flows are too insignificant to be of concern in a statute focused on “waters,” that may not always be true. Areas in the western parts of the Nation provide some examples. The Los Angeles River, for instance, ordinarily, carries only a trickle of water and often looks more like a dry roadway than a river. See, e. g., B. Gumprecht, The Los Angeles River: Its Life, Death, and Possible Rebirth 1-2 (1999); Martinez, City of Angels’ Signature River Tapped for Rebirth, Chicago Tribune, Apr. 10,2005, section 1, p. 8. Yet it periodically releases water volumes so powerful and destructive that it has been encased in concrete and steel over a length of some 50 miles. See Gumprecht, supra, at 227. Though this particular waterway might satisfy the plurality’s test, it is illustrative of what often-dry watercourses can become when rain waters flow. See, e. g., County of Los Angeles Dept, of Public Works, Water Resources Division: 2002-2003 Hydrologic Report, Runoff, Daily Discharge, F377-R BOUQUET CANYON CREEK at Urban-dale Avenue 11107860 Bouquet Creek Near Saugus, CA, http://ladpw.org/wrd/report/0203/runoff/discharge.cfm (indicating creek carried no flow for much of the year but carried 122 cubic feet per second on Feb. 12, 2003). To be sure, Congress could draw a line to exclude irregular waterways, but nothing in the statute suggests it has done so. Quite the opposite, a full reading of the dictionary definition precludes the plurality’s emphasis on permanence: The term “waters” may mean “flood or inundation,” Webster’s Second 2882, events that are impermanent by definition. Thus, although of course the Act’s use of the adjective “navigable” indicates a focus on waterways rather than floods, Congress’ use of “waters” instead of “water,” ante, at 732, does not necessarily carry the connotation of “relatively permanent, standing or flowing bodies of water,” ibid. (And contrary to the plurality’s suggestion, ante, at 732, n. 4, there is no indication in the dictionary that the “ ‘flood or inundation’” definition is limited to poetry.) In any event, even granting the plurality’s preferred definition — that “waters” means “water ‘[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes,’ ” ante, at 732 (quoting Webster’s Second 2882) — the dissent is correct to observe that an intermittent flow can constitute a stream, in the sense of “‘[a] current or course of water or other fluid, flowing on the earth,’ ” ante, at 733, n. 6 (quoting Webster’s Second 2493), while it is flowing. See post, at 801 (also noting Court’s use of the phrase “ ‘intermittent stream’ ” in Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U. S. 334, 335 (1933)). It follows that the Corps can reasonably interpret the Act to cover the paths of such impermanent streams. Apart from the dictionary, the plurality invokes Riverside Bayview to support its interpretation that the term “waters” is so confined, but this reliance is misplaced. To be sure, the Court there compared wetlands to “rivers, streams, and other hydrographic features more conventionally identifiable as ‘waters.’” 474 U. S., at 131. It is quite a stretch to claim, however, that this mention of hydrographic features “echoe[s]” the dictionary’s reference to “ ‘geographical features such as oceans, rivers, [and] lakes.’” Ante, at 735 (quoting Webster’s Second 2882). In fact the Riverside Bayview opinion does not cite the dictionary definition on which the plurality relies, and the phrase “hydrographic features” could just as well refer to intermittent streams carrying substantial flow to navigable waters. See Webster’s Second 1221 (defining “hydrography” as “[t]he description and study of seas, lakes, rivers, and other waters; specifically] . . . [t]he measurement of flow and investigation of the behavior of streams, especially] with reference to the control or utilization of their waters”). Also incorrect is the plurality’s attempt to draw support from the statutory definition of “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U. S. C. § 1362(14). This definition is central to the Act’s regulatory structure, for the term “discharge of a pollutant” is defined in relevant part to mean “any addition of any pollutant to navigable waters from any point source,” § 1362(12). Interpreting the point-source definition, the plurality presumes, first, that the point-source examples describe “watercourses through which intermittent waters typically flow,” and second, that point sources and navigable waters are “separate and distinct categories.” Ante, at 735-736. From this the plurality concludes, by a sort of negative inference, that navigable waters may not be intermittent. The conclusion is unsound. Nothing in the point-source definition requires an intermittent flow. Polluted water could flow night and day from a pipe, channel, or conduit and yet still qualify as a point source; any contrary conclusion would likely exclude, among other things, effluent streams from sewage treatment plants. As a result, even were the statute read to require continuity of flow for navigable waters, certain water bodies could conceivably constitute both a point source and a water. At any rate, as the dissent observes, the fact that point sources may carry continuous flow undermines the plurality’s conclusion that covered “waters” under the Act may not be discontinuous. See post, at 802. The plurality’s second limitation — exclusion of wetlands lacking a continuous surface connection to other jurisdictional waters — is also unpersuasive. To begin with, the plurality is wrong to suggest that wetlands are “indistinguishable” from waters to which they bear a surface connection. Ante, at 755. Even if the precise boundary may be imprecise, a bog or swamp is different from a river. The question is what circumstances permit a bog, swamp, or other nonnavigable wetland to constitute a “navigable water” under the Act — as § 1344(g)(1), if nothing else, indicates is sometimes possible, see supra, at 767-768. Riverside Bayview addressed that question and its answer is inconsistent with the plurality’s theory. There, in upholding the Corps’ authority to regulate “wetlands adjacent to other bodies of water over which the Corps has jurisdiction,” the Court deemed it irrelevant whether “the moisture creating the wetlands ... find[s] its source in the adjacent bodies of water.” 474 U. S., at 135. The Court further observed that adjacency could serve as a valid basis for regulation even as to “wetlands that are not significantly intertwined with the ecosystem of adjacent waterways.” Id., at 135, n. 9. “If it is reasonable,” the Court explained, “for the Corps to conclude that in the majority of cases, adjacent wetlands have significant effects on water quality and the aquatic ecosystem, its definition can stand.” Ibid. The Court in Riverside Bayview did note, it is true, the difficulty of defining where “water ends and land begins,” id., at 132, and the Court cited that problem as one reason for deferring to the Corps’ view that adjacent wetlands could constitute waters. Given, however, the further recognition in Riverside Bayview that an overinclusive definition is permissible even when it reaches wetlands holding moisture disconnected from adjacent water bodies, id., at 135, and n. 9, Riverside Bayview's, observations about the difficulty of defining the water’s edge cannot be taken to establish that when a clear boundary is evident, wetlands beyond the boundary fall outside the Corps’ jurisdiction. For the same reason Riverside Bayview also cannot be read as rejecting only the proposition, accepted by the Court of Appeals in that case, that wetlands covered by the Act must contain moisture originating in neighboring waterways. See id., at 125, 134. Since the Court of Appeals had accepted that theory, the Court naturally addressed it. Yet to view the decision’s reasoning as limited to that issue — an interpretation the plurality urges here, ante, at 751, n. 13— would again overlook the opinion’s broader focus on wetlands’ “significant effects on water quality and the aquatic ecosystem,” 474 U. S., at 135, n. 9. In any event, even were this reading of Riverside Bayview correct, it would offer no support for the plurality’s proposed requirement of a “continuous surface connection,” ante, at 742. The Court in Riverside Bayview rejected the proposition that origination in flooding was necessary for jurisdiction over wetlands. It did not suggest that a flood-based origin would not support jurisdiction; indeed, it presumed the opposite. See 474 U. S., at 134 (noting that the Corps’ view was valid “even for wetlands that are not the result of flooding or permeation” (emphasis added)). Needless to say, a continuous connection is not necessary for moisture in wetlands to result from flooding — the connection might well exist only during floods. SWANCC, likewise, does not support the plurality’s surface-connection requirement. SWANCC’s holding that “nonnavigable, isolated, intrastate waters,” 531 U. S., at 171, are not “navigable waters” is not an explicit or implicit overruling of Riverside Bayview’s approval of adjacency as a factor in determining the Corps’ jurisdiction. In rejecting the Corps’ claimed authority over the isolated ponds in SWANCC, the Court distinguished adjacent nonnavigable waters such as the wetlands addressed in Riverside Bayview. 531 U. S., at 167, 170-171. As Riverside Bayview recognizes, the Corps’ adjacency standard is reasonable in some of its applications. Indeed, the Corps’ view draws support from the structure of the Act, while the plurality’s surface-water-connection requirement does not. As discussed above, the Act’s prohibition on the discharge of pollutants into navigable waters, 33 U. S. C. § 1311(a), covers both the discharge of toxic materials such as sewage, chemical waste, biological material, and radioactive material and the discharge of dredged spoil, rock, sand, cellar dirt, and the like. All these substances are defined as pollutants whose discharge into navigable waters violates the Act. §§ 1311(a), 1362(6), (12). One reason for the parallel treatment may be that the discharge of fill material can impair downstream water quality. The plurality argues otherwise, asserting that dredged or fill material “does not normally wash downstream.” Ante, at 744. As the dissent points out, this proposition seems questionable as an empirical matter. See post, at 806-807. It seems plausible that new or loose fill, not anchored by grass or roots from other vegetation, could travel downstream through waterways adjacent to a wetland; at the least this is a factual possibility that the Corps’ experts can better assess than can the plurality. Silt, whether from natural or human sources, is a major factor in aquatic environments, and it may clog waterways, alter ecosystems, and limit the useful life of dams. See, e. g., Fountain, Unloved, But Not Unbuilt, N. Y. Times, June 5, 2005, section 4, p. 3, col. 1; DePalma, Rebuilding a River Upstate, For the Love of a Tiny Mussel, N. Y. Times, Apr. 26, 2004, section B, p. 1, col. 2; MacDougall, Damage Can Be Irreversible, Los Angeles Times, June 19, 1987, pt. 1, p. 10, col. 4. Even granting, however, the plurality’s assumption that fill material will stay put, Congress’ parallel treatment of fill material and toxic pollution may serve another purpose. As the Court noted in Riverside Bayview, “the Corps has concluded that wetlands may serve to filter and purify water draining into adjacent bodies of water, 33 CFR § 320.4(b)(2)(vii) (1985), and to slow the flow of surface runoff into lakes, rivers, and streams and thus prevent flooding and erosion, see §§ 320.4(b)(2)(iv) and (v).” 474 U. S., at 134. Where wetlands perform these filtering and runoff-control functions, filling them may increase downstream pollution, much as a discharge of toxic pollutants would. Not only will dirty water no longer be stored and filtered but also the act of filling and draining itself may cause the release of nutrients, toxins, and pathogens that were trapped, neutralized, and perhaps amenable to filtering or detoxification in the wetlands. See U. S. Congress, Office of Technology Assessment, Wetlands: Their Use and Regulation, OTA-O-206, pp. 43, 48-52 (Mar. 1984), http://govinfo.library.unt.edu/ota/ OTA_4/DATA/1984/8433.pdf (hereinafter OTA). In many cases, moreover, filling in wetlands separated from another water by a berm can mean that floodwater, impurities, or runoff that would have been stored or contained in the wetlands will instead flow out to major waterways. With these concerns in mind, the Corps’ definition of adjacency is a reasonable one, for it may be the absence of an interchange of waters prior to the dredge and fill activity that makes protection of the wetlands critical to the statutory scheme. In sum the plurality’s opinion is inconsistent with the Act’s text, structure, and purpose. As a fallback the plurality suggests that avoidance canons would compel its reading even if the text were unclear. Ante, at 737-738. In SWANCC, as one reason for rejecting the Corps’ assertion of jurisdiction over the isolated ponds at issue there, the Court observed that this “application of [the Corps’] regulations” would raise significant questions of Commerce Clause authority and encroach on traditional state land-use regulation. 531 U. S., at 174. As SWANCC observed, ibid., and as the plurality points out here, ante, at 737, the Act states that “[i]t is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the development and use ... of land and water resources,” 33 U. S. C. § 1251(b). The Court in SWANCC cited this provision as evidence that a clear statement supporting jurisdiction in applications raising constitutional and federalism difficulties was lacking. 531 U. S., at 174. The concerns addressed in SWANCC do not support the plurality’s interpretation of the Act. In SWANCC, by interpreting the Act to require a significant nexus with navigable waters, the Court avoided applications — those involving waters without a significant nexus — that appeared likely, as a category, to raise constitutional difficulties and federalism concerns. Here, in contrast, the plurality’s interpretation does not fit the avoidance concerns it raises. On the one hand, when a surface-water connection is lacking, the plurality forecloses jurisdiction over wetlands that abut navigable-in-fact waters — even though such navigable waters were traditionally subject to federal authority. On the other hand, by saying the Act covers wetlands (however remote) possessing a surface-water connection with a continuously flowing stream (however small), the plurality’s reading would permit applications of the statute as far from traditional federal authority as are the waters it deems beyond the statute’s reach. Even assuming, then, that federal regulation of remote wetlands and nonnavigable waterways would raise a difficult Comerce Clause issue notwithstanding those waters’ aggregate effects on national water quality, but cf. Wickard v. Filburn, 317 U. S. 111 (1942); see also infra, at 782-783, the plurality’s reading is not responsive to this concern' As for States’ “responsibilities and rights,” § 1251(b), it is noteworthy that 33 States plus the District of Columbia have filed an amici brief in this litigation asserting that the Clean Water Act is important to their own water policies. See Brief for State of New York et al. 1-3. These amici note, among other things, that the Act protects downstream States from out-of-state pollution that they cannot themselves regulate. Ibid. It bears mention also that the plurality’s overall tone and approach — from the characterization of acres of wetlands destruction as “backfilling . . . wet fields,” ante, at 721, to the rejection of Corps authority over “man-made drainage ditches” and “dry arroyos” without regard to how much water they periodically carry, ante, at 734, to the suggestion, seemingly contrary to Congress’ judgment, that discharge of fill material is inconsequential for adjacent waterways, ante, at 744, and n. 11 — seems unduly dismissive of the interests asserted by the United States in these cases. Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular. To give just one example, amici here have noted that nutrient-rich runoff from the Mississippi River has created a hypoxic, or oxygen-depleted, “dead zone” in the Gulf of Mexico that at times approaches the size of Massachusetts and New Jersey. Brief for Association of State Wetland Managers et al. 21-23; Brief for Environmental Law Institute 23. Scientific evidence indicates that wetlands play a critical role in controlling and filtering runoff. See, e. g., OTA 43, 48-52; R. Tiner, In Search of Swampland: A Wetland Sourcebook and Field Guide 93-95 (2d ed. 2005); Whitmire & Hamilton, Rapid Removal of Nitrate and Sulfate in Freshwater Wetland Sediments, 34 J. Env. Quality 2062 (2005). It is true, as the plurality indicates, that environmental concerns provide no reason to disregard limits in the statutory text, ante, at 745-746, but in my view the plurality’s opinion is not a correct reading of the text. The limits the plurality would impose, moreover, give insufficient deference to Congress’ purposes in enacting the Clean Water Act and to the authority of the Executive to implement that statutory mandate. Finally, it should go without saying that because the plurality presents its interpretation of the Act as the only permissible reading of the plain text, ante, at 739, 742, the Corps would lack discretion, under the plurality’s theory, to adopt contrary regulations. The Chief Justice suggests that if the Corps and EPA had issued new regulations after SWANCC they would have “enjoyed plenty of room to operate in developing some notion of an outer bound to the reach of their authority” and thus could have avoided litigation of the issues we address today. Ante, at 758 (concurring opinion). That would not necessarily be true under the opinion The Chief Justice has joined. New rulemaking could have averted the disagreement here only if the Corps had anticipated the unprecedented reading of the Act that the plurality advances. B While the plurality reads nonexistent requirements into the Act, the dissent reads a central requirement out— namely, the requirement that the word “navigable” in “navigable waters” be given some importance. Although the Court has held that the statute’s language invokes Congress’ traditional authority over waters navigable in fact or susceptible of being made so, SWANCC, 531 U. S., at 172 (citing Appalachian Power, 311 U. S., at 407-408), the dissent would permit federal regulation whenever wetlands lie alongside a ditch or drain, however remote and insubstantial, that eventually may flow into traditional navigable waters. The deference owed to the Corps’ interpretation of the statute does not extend so far. Congress’ choice of words creates difficulties, for the Act contemplates regulation of certain “navigable waters” that are not in fact navigable. Supra, at 768. Nevertheless, the word “navigable” in the Act must be given some effect. See SWANCC, supra, at 172. Thus, in SWANCC the Court rejected the Corps’ assertion of jurisdiction over isolated ponds and mudflats bearing no evident connection to navigable-in-fact waters. And in Riverside Bayview, while the Court indicated that “the term ‘navigable’ as used in the Act is of limited import,” 474 U. S., at 133, it relied, in upholding jurisdiction, on the Corps’ judgment that “wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water,” id., at 135. The implication, of course, was that wetlands’ status as “integral parts of the aquatic environment” — that is, their significant nexus with navigable waters — was what established the Corps’ jurisdiction over them as waters of the United States. Consistent with SWANCC and Riverside Bayview and with the need to give the term “navigable” some meaning, the Corps’ jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense. The required nexus must be assessed in terms of the statute’s goals and purposes. Congress enacted the law to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U. S. C. § 1251(a), and it pursued that objective by restricting dumping and filling in “navigable waters,” §§ 1311(a), 1362(12). With respect to wetlands, the rationale for Clean Water Act regulation is, as the Corps has recognized, that wetlands can perform critical functions related to the integrity of other waters — functions such as pollutant trapping, flood control, and runoff storage. 33 CFR § 320.4(b)(2). Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase “navigable waters,” if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.” When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.” Although the dissent acknowledges that wetlands’ ecological functions vis-á-vis other covered waters are the basis for the Corps’ regulation of them, post, at 796, it concludes that the ambiguity in the phrase “navigable waters” allows the Corps to construe the statute as reaching all “non-isolated wetlands,” just as it construed the Act to reach the wetlands adjacent to navigable-in-fact waters in Riverside Bayview, see post, at 796. This, though, seems incorrect. The Corps’ theory of jurisdiction in these consolidated cases — adjacency to tributaries, however remote and insubstantial — raises concerns that go beyond the holding of Riverside Bayview; and so the Corps’ assertion of jurisdiction cannot rest on that case. As applied to wetlands adjacent to navigable-in-fact waters, the Corps’ conclusive standard for jurisdiction rests upon a reasonable inference of ecologie interconnection, and the assertion of jurisdiction for those wetlands is sustainable under the Act by showing adjacency alone. That is the holding of Riverside Bayview. Furthermore, although the Riverside Bayview Court reserved the question of the Corps’ authority over “wetlands that are not adjacent to bodies of open water,” 474 U. S., at 131-132, n. 8, and in any event addressed no factual situation other than wetlands adjacent to navigable-in-fact waters, it may well be the case that Riverside Bayview’s reasoning — supporting jurisdiction without any inquiry beyond adjacency — could apply equally to wetlands adjacent to certain major tributaries. Through regulations or adjudication, the Corps may choose to identify categories of tributaries that, due to their volume of flow (either annually or on average), their proximity to navigable waters, or other relevant considerations, are significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters. The Corps’ existing standard for tributaries, however, provides no such assurance. As noted earlier, the Corps deems a water a tributary if it feeds into a traditional navigable water (or a tributary thereof) and possesses an ordinary high-water mark, defined as a “line on the shore established by the fluctuations of water and indicated by [certain] physical characteristics,” § 328.3(e). See supra, at 761. This standard presumably provides a rough measure of the volume and regularity of flow. Assuming it is subject to reasonably consistent application, but see U. S. General Accounting Office, Report to the Chairman, Subcommittee on Energy Policy, Natural Resources and Regulating Affairs, Committee on Reform, House of Representatives, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction, GAO-04-297, pp. 3-4 (Feb. 2004), http://www.gao.gov/new.items/ d04297.pdf (noting variation in results among Corps district offices), it may well provide a reasonable measure of whether specific minor tributaries bear a sufficient nexus with other regulated waters to constitute “navigable waters” under the Act. Yet the breadth of this standard — which seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-faet water and carrying only minor water volumes toward it — precludes its adoption as the determinative measure of whether adjacent wetlands are likely to play an important role in the integrity of an aquatic system comprising navigable waters as traditionally understood. Indeed, in many cases wetlands adjacent to tributaries covered by this standard might appear little more related to navigable-in-fact waters than were the isolated ponds held to fall beyond the Act’s scope in SWANCC. Cf. Leibowitz & Nadeau, Isolated Wetlands: State-of-the-Science and Future Directions, 23 Wetlands 663, 669 (2003) (noting that “‘isolated’ is generally a matter of degree”). When the Corps seeks to regulate wetlands adjacent to navigable-in-fact waters, it may rely on adjacency to establish its jurisdiction. Absent more specific regulations, however, the Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries. Given the potential overbreadth of the Corps’ regulations, this showing is necessary to avoid unreasonable applications of the statute. Where an adequate nexus is established for a particular wetland, it may be permissible, as a matter of administrative convenience or necessity, to presume covered status for other comparable wetlands in the region. That issue, however, is neither raised by these facts nor addressed by any agency regulation that accommodates the nexus requirement outlined here. This interpretation of the Act does not raise federalism or Commerce Clause concerns sufficient to support a presumption against its adoption. To be sure, the significant-nexus requirement may not align perfectly with the traditional extent of federal authority. Yet in most cases regulation of wetlands that are adjacent to tributaries and possess a significant nexus with navigable waters will raise no serious constitutional or federalism difficulty. Cf. Pierce County v. Guillen, 537 U. S. 129, 147 (2003) (upholding federal legislation “aimed at improving safety in the channels of commerce”); Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508, 525-526 (1941) (“[Jjust as control over the non-navigable parts of a river may be essential or desirable in the interests of the navigable portions, so may the key to flood control on a navigable stream be found in whole or in part in flood control on its tributaries .... [T]he exercise of the granted power of Congress to regulate interstate commerce may be aided by appropriate and needful control of activities and agencies which, though intrastate, affect that commerce”). As explained earlier, moreover, and as exemplified by SWANCC, the significant-nexus test itself prevents problematic applications of the statute. See supra, at 776; 531 U. S., at 174. The possibility of legitimate Commerce Clause and federalism concerns in some circumstances does not require the adoption of an interpretation that departs in all cases from the Act’s text and structure. See Gonzales v. Raich, 545 U. S. 1, 17 (2005) (“[W]hen a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence” (internal quotation marks omitted)). Ill In both the consolidated cases before the Court the record contains evidence suggésting the possible existence of a significant nexus according to the principles outlined above. Thus the end result in these cases and many others to be considered by the Corps may be the same as that suggested by the dissent, namely, that the Corps’ assertion of jurisdiction is valid. Given, however, that neither the agency nor the reviewing courts properly considered the issue, a remand is appropriate, in my view, for application of the controlling legal standard. Rapanos As the dissent points out, in Rapanos, No. 04-1034, an expert whom the District Court found “eminently qualified” and “highly credible,” App. to Pet. for Cert. B7, testified that the wetlands were providing “habitat, sediment trapping, nutrient recycling, and flood peak diminution, reduction flow water augmentation.” 4 Tr. 96 (Apr. 5, 1999). Although the expert had “not studied the upstream drainage of these sites” and thus could not assert that the wetlands were performing important pollutant-trapping functions, ibid., he did observe: “we have a situation in which the flood water attenuation in that water is held on the site in the wetland . . . such that it does not add to flood peak. By the same token it would have some additional water flowing into the rivers during the drier periods, thus, increasing the low water flow.... By the same token on all of the sites to the extent that they slow the flow of water off of the site they will also accumulate sediment and thus trap sediment and hold nutrients for use in those wetlands systems later in the season as well,” id., at 95-96. In addition, in assessing the hydrology prong of the three-part wetlands test, see supra, at 761-762, the District Court made extensive findings regarding water tables and. drainage on the parcels at issue. In applying the Corps’ jurisdictional regulations, the District Court found that each of the wetlands bore surface-water connections to tributaries of navigable-in-fact waters. Much the same evidence should permit the establishment of a significant nexus with navigable-in-fact waters, particularly if supplemented by further evidence about the significance of the tributaries to which the wetlands are connected. The Court of Appeals, however, though recognizing that under SWANCC such a nexus was required for jurisdiction, held that a significant nexus “can be satisfied by the presence of a hydrologic connection.” 376 F. 3d, at 639. Absent some measure of the significance of the connection for downstream water quality, this standard was too uncertain. Under the analysis described earlier, supra, at 779-780, 782, mere hydrologic connection should not suffice in all cases; the connection may be too insubstantial for the hydrologic linkage to establish the required nexus with navigable waters as traditionally understood. In my view this case should be remanded so that the District Court may reconsider the evidence in light of the appropriate standard. See, e. g., Pullman-Standard v. Swint, 456 U. S. 273, 291 (1982) (“When an appellate court discerns that a district court has failed to make a finding because of an erroneous view of the law, the usual rule is that there should be a remand for further proceedings to permit the trial court to make the missing findings”). Carabell In Carabell, No. 04-1384, the record also contains evidence bearing on the jurisdictional inquiry. The Corps noted in deciding the administrative appeal that “[bjesides the effects on wildlife habitat and water quality, the [district office] also noted that the project would have a major, long-term detrimental effect on wetlands, flood retention, recreation and conservation and overall ecology,” App. 218a. Similarly, in the district office’s permit evaluation, Corps officers observed: “The proposed work would destroy/adversely impact an area that retains rainfall and forest nutrients and would replace it with a new source area for runoff pollutants. Pollutants from this area may include lawn fertilizers, herbicides, pesticides, road salt, oil, and grease. These pollutants would then runoff directly into the waterway. . . . Overall, the operation and use of the proposed activity would have a major, long term, negative impact on water quality. The cumulative impacts of numerous such projects would be major and negative as the few remaining wetlands in the area are developed.” Id., at 97a-98a. The Corps’ evaluation further noted that by “eliminating] the potential ability of the wetland to act as a sediment catch basin,” the proposed project “would contribute to increased runoff and . . . accretion along the drain and further downstream in Auvase Creek.” Id., at 98a. And it observed that increased runoff from the site would likely cause downstream areas to “see an increase in possible flooding magnitude and frequency.” Id., at 99a. The conditional language in these assessments — “potential ability,” “possible flooding” — could suggest an undue degree of speculation, and a reviewing court must identify substantial evidence supporting the Corps’ claims, see 5 U. S. C. § 706(2)(E). Nevertheless, the record does show that factors relevant to the jurisdictional inquiry have already been noted and considered. As in Rapanos, though, the record gives little indication of the quantity and regularity of flow in the adjacent tributaries — a consideration that may be important in assessing the nexus. Also, as in Rapanos, the legal standard applied to the facts was imprecise. The Court of Appeals, considering the Carabell case after its Rapanos decision, framed the inquiry in terms of whether hydrologic connection is required to establish a significant nexus. The court held that it is not, and that much of its holding is correct. Given the role wetlands play in pollutant filtering, flood control, and runoff storage, it may well be the absence of hydrologic connection (in the sense of interchange of waters) that shows the wetlands’ significance for the aquatic system. In the administrative decision under review, however, the Corps based its jurisdiction solely on the wetlands’ adjacency to the ditch opposite the berm on the property’s edge. As explained earlier, mere adjacency to a tributary of this sort is insufficient; a similar ditch could just as well be located many miles from any navigable-in-fact water and carry only insubstantial flow toward it. A more specific inquiry, based on the significant-nexus standard, is therefore necessary. Thus, a remand is again required to permit application of the appropriate legal standard. See, e. g., INS v. Orlando Ventura, 537 U. S. 12, 16 (2002) (per curiam) (“Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands”). * H= * In these consolidated cases I would vacate the judgments of the Court of Appeals and remand for consideration whether the specific wetlands at issue possess a significant nexus with navigable waters.

Rapanos v. United States

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting. In 1972, Congress decided to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” by passing what we now call the Clean Water Act, 86 Stat. 816, as amended, 33 U. S. C. § 1251 et seq. The costs of achieving the Herculean goal of ending water pollution by 1985, see § 1251(a), persuaded President Nixon to veto its enactment, but both Houses of Congress voted to override that veto by overwhelming margins. To achieve its goal, Congress prohibited “the discharge of any pollutant” — defined to include “any addition of any pollutant to navigable waters from any point source” — without a permit issued by the Army Corps of Engineers (Army Corps or Corps) or the Environmental Protection Agency (EPA). §§ 1311(a), 1362(12)(A). Congress further defined “navigable waters” to mean “the waters of the United States.” § 1362(7). The narrow question presented in No. 04-1034 is whether wetlands adjacent to tributaries of traditionally navigable waters are “waters of the United States” subject to the jurisdiction of the Army Corps; the question in No. 04-1384 is whether a manmade berm separating a wetland from the adjacent tributary makes a difference. The broader question is whether regulations that have protected the quality of our waters for decades, that were implicitly approved by Congress, and that have been repeatedly enforced in case after case, must now be revised in light of the creative criticisms voiced by the plurality and Justice Kennedy today. Rejecting more than 30 years of practice by the Army Corps, the plurality disregards the nature of the congressional delegation to the agency and the technical and complex character of the issues at stake. Justice Kennedy similarly fails to defer sufficiently to the Corps, though his approach is far more faithful to our precedents and to principles of statutory interpretation than is the plurality’s. In my view, the proper analysis is straightforward. The Army Corps has determined that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation’s waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow. The Corps’ resulting decision to treat these wetlands as encompassed within the term “waters of the United States” is a quintessential example of the Executive’s reasonable interpretation of a statutory provision. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984). Our unanimous decision in United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985), was faithful to our duty to respect the work product of the Legislative and Executive Branches of our Government. Today’s judicial amendment of the Clean Water Act is not. I At each of the three sites at issue in No. 04-1034, the petitioners filled large areas of wetlands without permits, despite being on full notice of the Corps’ regulatory requirements. Because the plurality gives short shrift to the facts of this case — as well as to those of No. 04-1384 — I shall discuss them at some length. The facts related to the 230-acre Salzburg site are illustrative. In 1988, John Rapanos asked the Michigan Department of Natural Resources (MDNR) to inspect the site “in order to discuss with him the feasibility of building a shopping center there.” App. to Pet. for Cert, in No. 04-1034, p. B15. An MDNR inspector informed Rapanos that the land probably included wetlands that were “waters of the United States” and sent him an application for a permit under § 404 of the Act. Rapanos then hired a wetland consultant, Dr. Frederick Goff. After Dr. Goff concluded that the land did in fact contain many acres of wetlands, “Rapanos threatened to ‘destroy’ Dr. Goff if he did not destroy the wetland report, and refused to pay Dr. Goff unless and until he complied.” Ibid. In the meantime, without applying for a permit, Rapanos hired construction companies to do $350,000 worth of work clearing the land, filling in low spots, and draining subsurface water. After Rapanos prevented MDNR inspectors from visiting the site, ignored an MDNR cease-and-desist letter, and refused to obey an administrative compliance order issued by the EPA, the matter was referred to the Department of Justice. In the civil case now before us, the District Court found that Rapanos unlawfully filled 22 acres of wetlands. Rapanos and his wife engaged in similar behavior at the Hines Road and Pine River sites. Without applying for § 404 permits, they hired construction companies to perform extensive clearing and filling activities. They continued these activities even after receiving EPA administrative compliance orders directing them to cease the work immediately. They ultimately spent $158,000 at the 275-acre Hines Road site, filling 17 of its existing 64 acres of wetlands. At the 200-acre Pine River site, they spent $463,000 and filled 15 of its 49 acres of wetlands. Prior to their destruction, the wetlands at all three sites had surface connections to tributaries of traditionally navigable waters. The Salzburg wetlands connected to a drain that flows into a creek that flows into the navigable Kawkawlin River. The Hines Road wetlands connected to a drain that flows into the navigable Tittabawassee River. And the Pine River wetlands connected with the Pine River, which flows into Lake Huron. At trial, the Government put on a wetland expert, Dr. Daniel Willard, whom the trial court found “eminently qualified” and “highly credible.” Id., at B7. Dr. Willard testified that the wetlands at these three sites provided ecological functions in terms of “habitat, sediment trapping, nutrient recycling, and flood peak diminution.” 4 Tr. 96 (Apr. 5, 1999). He explained: “[Generally for all of the . . . sites we have a situation in which the flood water attenuation in that water is held on the site in the wetland . .. such that it does not add to flood peak. By the same token it would have some additional water flowing into the rivers during the drier periods, thus, increasing low water flow. “By the same token on all of the sites to the extent that they slow the flow of water of the site they will also accumulate sediment and thus trap sediment and hold nutrients for use in those wetland systems later in the season as well.” Id., at 95-96. The District Court found that the wetlands at all three sites were covered by the Clean Water Act and that the Rapanoses had violated the Act by destroying them without permits. The Sixth Circuit unanimously affirmed. 376 F. 3d 629 (2004). The facts of No. 04-1384 are less dramatic. The petitioners in that case own a 20-acre tract of land, of which 16 acres are wetlands, located in Macomb County a mile from Lake St. Clair. These wetlands border a ditch that flows into a drain that flows into a creek that flows into Lake St. Clair. A 4-foot-wide manmade berm separates the wetlands from the ditch; thus water rarely if ever passes from wetlands to ditch or vice versa. Petitioners applied for a permit to fill most of these wetlands with 57,500 cubic yards of material. They intended to build a 112-unit condominium development on the site. After inspecting the site and considering comments from, among others, the Water Quality Unit of the Macomb County Prosecutor’s Office (which urged the Corps to deny the permit because “[t]he loss of this high quality wetland area would have an unacceptable adverse effect on wildlife, water quality, and conservation of wetlands resources,” App. in No. 04-1384, p. 79a), the Corps denied the permit. Id., at 84a-126a. As summarized in a letter sent to petitioners, reasons for denial included: “Your parcel is primarily a forested wetland that provides valuable seasonal habitat for aquatic organisms and year round habitat for terrestrial organisms. Additionally, the site provides water storage functions that, if destroyed, could result in an increased risk of erosion and degradation of water quality in the SutherlandOemig Drain, Auvase Creek, and Lake St. Clair. The minimization of impacts to these wetlands is important for conservation and the overall ecology of the region. Because the project development area is a forested wetland, the proposed project would destroy the resources in such a manner that they would not soon recover from impacts of the discharges. The extent of impacts in the project area when considered both individually and cumulatively would be unacceptable and contrary to the public interest.” Id., at 127a-128a. As in No. 04-1034, the unanimous judgment of the District and Circuit Judges was that the Corps has jurisdiction over this wetland because it is adjacent to a tributary of traditionally navigable waters. 391 F. 3d 704 (CA6 2004). The Solicitor General defends both judgments. II Our unanimous opinion in Riverside Bayview squarely controls these cases. There, we evaluated the validity of the very same regulations at issue today. These regulations interpret “waters of the United States” to cover all traditionally navigable waters; tributaries of these waters; and wetlands adjacent to traditionally navigable waters or their tributaries. 33 CFR §§ 328.3(a)(1), (5), and (7) (2005); §§ 323.2(a)(1), (5), and (7) (1985). Although the particular wetland at issue in Riverside Bayview abutted a navigable creek, we framed the question presented as whether the Clean Water Act “authorizes the Corps to require landowners to obtain permits from the Corps before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries.” 474 U. S., at 123 (emphasis added). We held that, pursuant to our decision in Chevron, “our review is limited to the question whether it is reasonable, in light of the language, policies, and legislative history of the Act for the Corps to exercise jurisdiction over wetlands adjacent to but not regularly flooded by rivers, streams, and other hydrographic features more conventionally identifiable as ‘waters.’ ” 474 U. S., at 131. Applying this standard, we held that the Corps’ decision to interpret “waters of the United States” as encompassing such wetlands was permissible. We recognized the practical difficulties in drawing clean lines between land and water, id., at 132, and deferred to the Corps’ judgment that treating adjacent wetlands as “waters” would advance the “congressional concern for protection of water quality and aquatic ecosystems,” id., at 133. Contrary to the plurality’s revisionist reading today, ante, at 740-742, 746-747, Riverside Bayview nowhere implied that our approval of “adjacent” wetlands was contingent upon an understanding that “adjacent” means having a “continuous surface connection” between the wetland and its neighboring creek, ante, at 742. Instead, we acknowledged that the Corps defined “adjacent” as including wetlands “ ‘that form the border of or are in reasonable proximity to other waters’” and found that the Corps reasonably concluded that adjacent wetlands are part of the waters of the United States. 474 U. S., at 134 (quoting 42 Fed. Reg. 37128 (1977)). Indeed, we explicitly acknowledged that the Corps’ jurisdictional determination was reasonable even though “not every adjacent wetland is of great importance to the environment of adjoining bodies of water.... If it is reasonable for the Corps to conclude that in the majority of cases, adjacent wetlands have significant effects on water quality and the ecosystem, its definition can stand. That the definition may include some wetlands that are not significantly intertwined with the ecosystem of adjacent waterways is of little moment, for where it appears that a wetland covered by the Corps’ definition is in fact lacking in importance to the aquatic environment... the Corps may always allow development of the wetland for other uses simply by issuing a permit.” 474 U. S., at 135, n. 9. In closing, we emphasized that the scope of the Corps’ asserted jurisdiction over wetlands had been specifically brought to Congress’ attention in 1977, that Congress had rejected an amendment that would have narrowed that jurisdiction, and that even proponents of the amendment would not have removed wetlands altogether from the definition of “waters of the United States.” Id., at 135-139. Disregarding the importance of Riverside Bayview, the plurality relies heavily on the Court’s subsequent opinion in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC). In stark contrast to Riverside Bayview, however, SWANCC had nothing to say about wetlands, let alone about wetlands adjacent to traditionally navigable waters or their tributaries. Instead, SWANCC dealt with a question specifically reserved by Riverside Bayview, see n. 3, supra, namely, the Corps’ jurisdiction over isolated waters — “ ‘waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce.’ ” 531 U. S., at 168-169 (quoting 33 CFR § 323.2(a)(5) (1978); emphasis added); see also 531 U.S., at 163 (citing 33 CFR § 328.2(a)(3) (1999), which is the later regulatory equivalent to § 323.2(a)(5) (1978)). At issue in SWANCC was “an abandoned sand and gravel pit. . . which provide[d] habitat for migratory birds” and contained a few pools of “nonnavigable, isolated, intrastate waters.” 531 U. S., at 162, 166. The Corps had asserted jurisdiction over the gravel pit under its 1986 Migratory Bird Rule, which treated isolated waters as within its jurisdiction if migratory birds depended upon these waters. The Court rejected this jurisdictional basis since these isolated pools, Unlike the wetlands at issue in Riverside Bayview, had no “significant nexus” to traditionally navigable waters. 531 U. S., at 167. In the process, the Court distinguished Riverside Bayview’s reliance on Congress’ decision to leave the Corps’ regulations alone when it amended the Act in 1977, since “ '[i]n both Chambers, debate on the proposals to narrow thé definition of navigable waters centered largely on the issue of wetlands preservation’ ” rather than on the Corps’ jurisdiction over truly isolated waters. 531 U. S., at 170 (quoting 474 U. S., at 136). Unlike SWANCC and like Riverside Bayview, the cases before us today concern wetlands that are adjacent to “navigable bodies of water [or] their tributaries,” 474 U. S., at 123. Specifically, these wetlands abut tributaries of traditionally navigable waters. As we recognized in Riverside Bayview, the Corps has concluded that such wetlands play important roles in maintaining the quality of their adjacent waters, see id., at 134-135, and consequently in the waters downstream. Among other things, wetlands can offer “nesting, spawning, rearing and resting sites for aquatic or land species”; “serve as valuable storage areas for storm and flood waters”; and provide “significant water purification functions.” 33 CFR § 320.4(b)(2) (2005); 474 U. S., at 134-135. These values are hardly “independent” ecological considerations as the plurality would have it, ante, at 741 — instead, they are integral to the “chemical, physical, and biological integrity of the Nation’s waters,” 33 U. S. C. § 1251(a). Given that wetlands serve these important water quality roles and given the ambiguity inherent in the phrase “waters of the United States,” the Corps has reasonably interpreted its jurisdiction to cover nonisolated wetlands. See 474 U. S., at 131-135. This conclusion is further confirmed by Congress’ deliberate acquiescence in the Corps’ regulations in 1977. Id., at 136. Both Chambers conducted extensive debates about the Corps’ regulatory jurisdiction over wetlands, rejected efforts to limit this jurisdiction, and appropriated funds for a “ ‘National Wetlands Inventory’ ” to help the States “ ‘in the development and operation of programs under this Act.’” Id., at 135-139 (quoting 33 U. S. C. § 1288(i)(2)). We found these facts significant in Riverside Bayview, see 474 U. S., at 135-139, as we acknowledged in SWANCC, see 531 U. S., at 170-171 (noting that “[bjeyond Congress’ desire to regulate wetlands adjacent to ‘navigable waters,’ respondents-point us to no persuasive evidence” of congressional acquiescence (emphasis added)). The Corps’ exercise of jurisdiction is reasonable even though not every wetland adjacent to a traditionally navigable water or its tributary will perform all (or perhaps any) of the water quality functions generally associated with wetlands. Riverside Bayview made clear that jurisdiction does not depend on a wetland-by-wetland inquiry. 474 U. S., at 135, n. 9. Instead, it is enough that wetlands adjacent to tributaries generally have a significant nexus to the watershed’s water quality. If a particular wetland is “not significantly intertwined with the ecosystem of adjacent waterways,” then the Corps may allow its development “simply by issuing a permit.” Ibid. Accordingly, for purposes of the Corps’ jurisdiction it is of no significance that the wetlands in No. 04-1034 serve flood control and sediment sink functions, but may not do much to trap other pollutants, supra, at 790, and n. 2, or that the wetland in No. 04-1384 keeps excess water from Lake St. Clair but may not trap sediment, see supra, at 790-792. Seemingly alarmed by the costs involved, the plurality shies away from Riverside Bayview’s recognition that jurisdiction is not a case-by-case affair. I do not agree with the plurality’s assumption that the costs of preserving wetlands are unduly high. It is true that the cost of § 404 permits are high for those who must obtain them — but these costs amount to only a small fraction of 1% of the $760 billion spent each year on private and public construction and development activity. Sunding & Zilberman 80. More significant than the plurality’s exaggerated concern about costs, however, is the fact that its omission of any discussion of the benefits that the regulations at issue have produced sheds a revelatory light on the quality (and indeed the impartiality) of its cost-benefit analysis. The importance of wetlands for water quality is hard to overstate. See, e. g., U. S. Congress, Office of Technology Assessment, Wetlands: Their Use and Regulation, OTA-O-206, pp. 43-61 (Mar. 1984), http://govinfo.library.unt.edu/ota/OTA_4/DATA/1984/ 8433.pdf (hereinafter OTA) (describing wetlands’ role in floodpeak reduction, shoreline protection, ground water recharge, trapping of suspended sediment, filtering of toxic pollutants, and protection of fish and wildlife). See also ante, at 777 (Kennedy, J., concurring in judgment). Unsurprisingly, the Corps’ approach has the overwhelming endorsement of numerous amici curiae, including 33 States and the county in which the property in No. 04-1384 is located. In final analysis, however, concerns about the appropriateness of the Corps’ 30-year implementation of the Clean Water Act should be addressed to Congress or the Corps rather than to the Judiciary. Whether the benefits of particular conservation measures outweigh their costs is a classic question of public policy that should not be answered by appointed judges. The fact that large investments are required to finance large developments merely means that those who are most adversely affected by the Corps’ permitting decisions are persons who have the ability to communicate effectively with their representatives. Unless and until they succeed in convincing Congress (or the Corps) that clean water is less important today than it was in the 1970’s, we continue to owe deference to regulations satisfying the “evident breadth of congressional concern for protection of water quality and qquatic ecosystems” that all of the Justices on the Court in 1985 recognized in Riverside Bayview, 474 U. S., at 133. III Even setting aside the plurality’s dramatic departure from our reasoning and holding in Riverside Bayview, its creative opinion is utterly unpersuasive. The plurality imposes two novel conditions on the exercise of the Corps’ jurisdiction that can only muddy the jurisdictional waters. As Justice Kennedy observes, “these limitations .. . are without support in the language and purposes of the Act or in our cases interpreting it.” Ante, at 768 (opinion concurring in judgment). The impropriety of crafting these new conditions is highlighted by the fact that no party or amicus has suggested either of them. First, ignoring the importance of preserving jurisdiction over water beds that are periodically dry, the plurality imposes a requirement that only tributaries with the “relatively permanent” presence of water fall within the Corps’ jurisdiction. Ante, at 732. Under the plurality’s view, then, the Corps can regulate polluters who dump dredge into a stream that flows year round but may not be able to regulate polluters who dump into a neighboring stream that flows for only 290 days of the year — even if the dredge in this second stream would have the same effect on downstream waters as the dredge in the year-round one. Ante, at 732-733, n. 5. To find this arbitrary distinction compelled by the statute, the plurality cites a dictionary for a proposition that it does not contain. The dictionary treats “streams” as “waters” but has nothing to say about whether streams must contain water year round to qualify as “streams.” Ante, at 732-733, and n. 6 (citing Webster’s New International Dictionary 2493 (2d ed. 1954) (hereinafter Webster’s Second), as defining stream as a “ ‘current or course of water or other fluid, flowing on the earth’ ”). Prom this, the plurality somehow deduces that streams can never be intermittent or ephemeral (i. e., flowing for only part of the year). Ante, at 732-734, and nn. 5-6. But common sense and common usage demonstrate that intermittent streams, like perennial streams, are still streams. See, e. g., U. S. Dept, of Interior, U. S. Geological Survey, Topographic Map Symbols 3 (2005), http://erg.usgs.gov/isb/pubs/booklets/symbols/ (identifying symbols for “[p]erennial stream” and “[intermittent stream,” as well as for “[p]erennial river” and “[intermittent river”). This was true well before the passage of the Act in 1972. E. g., Webster’s Third New International Dictionary 1180 (1961) (hereinafter Webster’s Third) (linking “intermittent” with “stream”). Indeed, we ourselves have used the term “intermittent stream” as far back as 1932. Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U. S. 334, 335 (1933). Needless to say, Justice Brandéis’ use of the term in a unanimous opinion should not be dismissed as merely a “useful oxymor[on],” ante, at 733, n. 6 (plurality opinion). The plurality attempts to bolster its arbitrary jurisdictional line by citing two tangential statutory provisions and two inapplicable canons of construction. None comes close to showing that Congress directly spoke to whether “waters” requires the relatively permanent presence of water. The first provision relied on by the plurality — the definition of “point source” in 33 U. S. C. § 1362(14) — has no conceivable bearing on whether permanent tributaries should be treated differently from intermittent ones, since “pipe[s], ditch[es], channels], tunnel[s], eonduit[s], [and] well[s]” can all hold water permanently as well as intermittently. The second provision is § 1251(b), which announces a congressional policy to “recognize, preserve, and protect the primary responsibilities and rights of States” to prevent pollution, to plan development, and to consult with the EPA. Under statutory additions made in 1977 when Congress considered and declined to alter the Corps’ interpretation of its broad regulatory jurisdiction, the States may run their own § 404 programs. §§ 1344(g)-(h). As modified, § 1251(b) specifically recognizes this role for the States as part of their primary responsibility for preventing water pollution. Even focusing only on the Act as it stood between 1972 and 1977, but see International Paper Co. v. Ouellette, 479 U. S. 481, 489-490 (1987) (interpreting § 1251(b) in light of the 1977 additions), broad exercise of jurisdiction by the Corps still left the States with ample rights and responsibilities. See S. D. Warren Co. v. Maine Bd. of Environmental Protection, ante, at 386-387. States had the power to impose tougher water pollution standards than required by the Act, § 1370, and to prevent the Corps and the EPA from issuing permits, § 1341(a)(1) — not to mention nearly exclusive responsibility for containing pollution from nonpoint sources. The two canons of construction relied on by the plurality similarly fail to overcome the deference owed to the Corps. First, the plurality claims that concerns about intruding on state power to regulate land use compel the conclusion that the phrase “waters of the United States” does not cover intermittent streams. As we have recognized, however, Congress found it “ ‘essential that discharge of pollutants be controlled at the source,’ ” Riverside Bayview, 474 U. S., at 133 (quoting S. Rep. No. 92-414, p. 77 (1972)), and the Corps can define “waters” broadly to accomplish this aim. Second, the plurality suggests that the canon of constitutional avoidance applies because the Corps’ approach might exceed the limits of our Commerce Clause authority. Setting aside whether such a concern was proper in SWANCC, 531 U. S., at 173; but see id., at 192-196 (Stevens, J., dissenting), it is plainly not warranted here. The wetlands in these cases are not “isolated” but instead are adjacent to tributaries of traditionally navigable waters and play important roles in the watershed, such as keeping water out of the tributaries or absorbing water from the tributaries. “There is no constitutional reason why Congress cannot, under the commerce power, treat the watersheds as a key to flood control on navigable streams and their tributaries.” Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508, 525 (1941). Most importantly, the plurality disregards the fundamental significance of the Clean Water Act. As then-justice Rehnquist explained when writing for the Court in 1981, the Act was “not merely another law” but rather was “viewed by Congress as a ‘total restructuring’ and ‘complete rewriting’ of the existing water pollution legislation.” Milwaukee v. Illinois, 451 U. S. 304, 317. “Congress’ intent in enacting the [Act] was clearly to establish an all-encompassing program of water pollution regulation,” and “[t]he most casual perusal of the legislative history demonstrates that... views on the comprehensive nature of the legislation were practically universal.” Id., at 318, and n. 12; see also 531 U. S., at 177-181 (Stevens, J., dissenting). The Corps has concluded that it must regulate pollutants at the time they enter ditches or streams with ordinary high-water marks— whether perennial, intermittent, or ephemeral — in order to properly control water pollution. 65 Fed. Reg. 12823 (2000). Because there is ambiguity in the phrase “waters of the United States” and because interpreting it broadly to cover such ditches and streams advances the purpose of the Act, the Corps’ approach should command our deference. Intermittent streams can carry pollutants just as perennial streams can, and their regulation may prove as important for flood control purposes. The inclusion of all identifiable tributaries that ultimately drain into large bodies of water within the mantle of federal protection is surely wise. The plurality’s second statutory invention is as arbitrary as its first. Trivializing the significance of changing conditions in wetlands environments, the plurality imposes a separate requirement that “the wetland has a continuous surface connection” with its abutting waterway such that it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Ante, at 742. An “intermittent, physically remote hydrologic connection” between the wetland and other waters is not enough. Ibid. Under this view, wetlands that border traditionally navigable waters or their tributaries and perform the essential function of soaking up overflow waters during hurricane season — thus reducing flooding downstream — can be filled in by developers with impunity, as long as the wetlands lack a surface connection with the adjacent waterway the rest of the year. The plurality begins reasonably enough by recognizing that the Corps may appropriately regulate all wetlands “ ‘adjacent to’” other waters. Ibid. This recognition is wise, since the statutory text clearly accepts this standard. Title 33 U. S. C. § 1344(g)(1), added in 1977, includes “adjacent wetlands” in its description of “waters” and thus “expressly stated that the term ‘waters’ included adjacent wetlands.” Riverside Bayview, 474 U. S., at 138. While this may not “conclusively determine the construction to be placed on the use of the term ‘waters’ elsewhere in the Act..., in light of the fact that the various provisions of the Act should be read in pari materia, it does at least suggest strongly that the term ‘waters’ as used in the Act does not necessarily exclude ‘wetlands.’” Id., at 138, n. 11. The plurality goes on, however, to define “ ‘adjacent to’ ” as meaning “with a continuous surface connection to” other water. Ante, at 742. It is unclear how the plurality reached this conclusion, though it plainly neglected to consult a dictionary. Even its preferred Webster’s Second defines the term as “[ljying near, close, or contiguous; neighboring; bordering on” and acknowledges that “[ojbjects are Adjacent when they lie close to each other, but not necessarily in actual contact.” Webster’s Second 32 (emphasis added); see also Webster’s Third 26. In any event, the proper question is not how the plurality would define “adjacent,” but whether the Corps’ definition is reasonable. The Corps defines “adjacent” as “bordering, contiguous, or neighboring,” and specifies that “[wjetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dimes and the like are ‘adjacent wetlands.’” 33 CFR §328.3(c) (2005). This definition is plainly reasonable, both on its face and in terms of the purposes of the Act. While wetlands that are physically separated from other waters may perform less valuable functions, this is a matter for the Corps to evaluate in its permitting decisions. We made this clear in Riverside Bayview, 474 U. S., at 135, n. 9 — which did not impose the plurality’s new requirement despite an absence of evidence that the wetland at issue had the sort of continuous surface connection required by the plurality today. See supra, at 793; see also ante, at 772-774 (Kennedy, J., concurring in judgment) (observing that the plurality’s requirement is inconsistent with Riverside Bayview). And as the facts of No. 04-1384 demonstrate, wetland separated by a berm from adjacent tributaries may still prove important to downstream water quality. Moreover, Congress was on notice of the Corps’ definition of “adjacent” when it amended the Act in 1977 and added 33 U. S. C. § 1344(g)(1). See 42 Fed. Reg. 37129 (1977). Finally, implicitly recognizing that its approach endangers the quality of waters which Congress sought to protect, the plurality suggests that the EPA can regulate pollutants before they actually enter the “waters of the United States.” Ante, at 742-746. I express no view on the merits of the plurality’s reasoning, which relies heavily on a respect for lower court judgments that is conspicuously lacking earlier in its opinion, ante, at 726-729. I do fail to understand, however, why the plurality would not similarly apply this logic to dredged and fill material. The EPA’s authority over pollutants (other than dredged and fill materials) stems from the identical statutory language that gives rise to the Corps’ § 404 jurisdiction. The plurality claims that there is a practical difference, asserting that dredged and fill material “does not normally wash downstream.” Ante, at 744. While more of this material will probably stay put than is true of soluble pollutants, the very existence of words like “alluvium” and “silt” in our language, see Webster’s Third 59, 2119, suggests that at least some fill makes its way downstream. See also, e. g., United States v. Deaton, 332 F. 3d 698, 707 (CA4 2003) (“Any pollutant or fill material that degrades water quality in a tributary . . . has the potential to move downstream and degrade the quality of the navigable waters themselves”). Moreover, such fill can harm the biological integrity of downstream waters even if it largely stays put upstream. The Act’s purpose of protecting fish, see 33 U. S. C. § 1251(a)(2); S. D. Warren Co., ante, at 385-386, could be seriously impaired by sediment in upstream waters where fish spawn, since excessive sediment can “smother bottom-dwelling invertebrates and impair fish spawning,” OTA 48. See also, e. g., Erman & Hawthorne, The Quantitative Importance of an Intermittent Stream in the Spawning of Rainbow Trout, 105 Transactions of the American Fisheries Society 675-681 (1976); Brief for American Rivers et al. as Amici Curiae 14 (observing that anadromous salmon often spawn in small, intermittent streams). IV While I generally agree with Parts I and II-A of Justice Kennedy’s opinion, I do not share his view that we should replace regulatory standards that have been in place for over 30 years with a judicially crafted rule distilled from the term “significant nexus” as used in SWANCC. To the extent that our passing use of this term has become a statutory requirement, it is categorically satisfied as to wetlands' adjacent to navigable waters or their tributaries. Riverside Bayview and SWANCC together make this clear. SWANCC’s only use of the term comes in the sentence: “It was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the [Clean Water Act] in Riverside Bayview.” 531 U. S., at 167. Because Riverside Bayview was written to encompass “wetlands adjacent to navigable waters and their tributaries,” 474 U. S., at 123, and reserved only the question of isolated waters, see id., at 131-132, n. 8; see also n. 3, supra, its determination of the Corps’ jurisdiction applies to the wetlands at issue in these cases. Even setting aside the apparent applicability of Riverside Bayview, I think it clear that wetlands adjacent to tributaries of navigable waters generally have a “significant nexus” with the traditionally navigable waters downstream. Unlike the “nonnavigable, isolated, intrastate waters” in SWANCC, 531 U. S., at 171, these wetlands can obviously have a cumulative effect on downstream water flow by releasing waters at times of low flow or by keeping waters back at times of high flow. This logical connection alone gives the wetlands the “limited” connection to traditionally navigable waters that is all the statute requires, see id., at 172; 474 U. S., at 133 — and disproves Justice Kennedy’s claim that my approach gives no meaning to the word “‘navigable,’” ante, at 779 (opinion concurring in judgment). Similarly, these wetlands can preserve downstream water quality by trapping sediment, filtering toxic pollutants, protecting fish-spawning grounds, and so forth. While there may exist categories of wetlands adjacent to tributaries of traditionally navigable waters that, taken cumulatively, have no plausibly discernible relationship to any aspect of downstream water quality, I am skeptical. And even given Justice Kennedy’s “significant-nexus” test, in the absence of compelling evidence that many such categories do exist I see no reason to conclude that the Corps’ longstanding regulations are overbroad. Justice Kennedy’s “significant-nexus” test will probably not do much to diminish the number of wetlands covered by the Act in the long run. Justice Kennedy himself recognizes that the records in both cases contain evidence that “should permit the establishment of a significant nexus,” ante, at 788; see also ante, at 784, and it seems likely that evidence would support similar findings as to most (if not all) wetlands adjacent to tributaries of navigable waters. But Justice Kennedy’s approach will have the effect of creating additional work for all concerned parties. Developers wishing to fill wetlands adjacent to ephemeral or intermittent tributaries of traditionally navigable waters will have no certain way of knowing whether they need to get § 404 permits or not. And the Corps will have to make ease-by-case (or category-by-category) jurisdictional determinations, which will inevitably increase the time and resources spent processing permit applications. These problems are precisely the ones that Riverside Bayview’s deferential approach avoided. See 474 U. S., at 135, n. 9 (noting that it “is of little moment” if the Corps’ jurisdiction encompasses some wetlands “not significantly intertwined” with other waters of the United States). Unlike Justice Kennedy, I see no reason to change Riverside Bayview’s approach — and every reason to continue to defer to the Executive’s sensible, bright-line rule. y As I explained in SWANCC, Congress passed the Clean Water Act in response to widespread recognition — based on events like the 1969 burning of the Cuyahoga River in Cleveland — that our waters had become appallingly polluted. 531 U. S., at 174-175 (dissenting opinion). The Act has largely succeeded in restoring the quality of our Nation’s waters. Where the Cuyahoga River was once coated with industrial waste, “[tjoday, that location is lined with restaurants and pleasure boat slips.” EPA, A Benefits Assessment of the Water Pollution Control Programs Since 1972, p. 1-2 (Jan. 2000), http://www.epa.gov/ost/economics/assessment.pdf. By curtailing the Corps’ jurisdiction of more than 30 years, the plurality needlessly jeopardizes the quality of our waters. In doing so, the plurality disregards the deference it owes the Executive, the congressional acquiescence in the Executive’s position that we recognized in Riverside Bayview, and its own obligation to interpret laws rather than to make them. While Justice Kennedy’s approach has far fewer faults, nonetheless it also fails to give proper deference to the agencies entrusted by Congress to implement the Clean Water Act. I would affirm the judgments in both cases, and respectfully dissent from the decision of five Members of this Court to vacate and remand. I close, however, by noting an unusual feature of the Court’s judgments in these cases. It has been our practice in a case coming to us from a lower federal court to enter a judgment commanding that court to conduct any further proceedings pursuant to a specific mandate. That prior practice has, on occasion, made it necessary for Justices to join a judgment that did not conform to their own views. In these cases, however, while both the plurality and Justice Kennedy agree that there must be a remand for further proceedings, their respective opinions define different tests to be applied on remand. Given that all four Justices who have joined this opinion would uphold the Corps’ jurisdiction in both of these cases — and in all other cases in which either the plurality’s or Justice Kennedy’s test is satisfied — on remand each of the judgments should be reinstated if either of those tests is met. Pursuant to 33 U. S. C. §§ 1344(g)-(h), Michigan operates its own § 404 permitting program, subject to supervision from the Army Corps. Dr. Willard did not “stud[y] the upstream drainage of these sites . . . well enough to make a statement” about whether they also performed pollutant-trapping functions. 4 Tr. 96. By contrast, we “d[id] not express any opinion” on the Corps’ additional assertion of jurisdiction over “wetlands that are not adjacent to bodies of open water, see 33 CFR §§ 323.2(a)(2) and (3) (1985).” 474 U. S., at 131-132, n. 8; see also id., at 124, n. 2 (making the same reservation). Contrary to Justice Kennedy’s reading, ante, at 780 (opinion concurring in judgment), we were not reserving the issue of the Corps’ jurisdiction over wetlands adjacent to tributaries, but only reserving the issue of the Corps’ jurisdiction over truly isolated waters. A glance at the cited regulation makes this clear. Section 323.2(a)(2) refers to “[a]ll interstate waters including interstate wetlands” and § 323.2(a)(3) covers “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters.” See also Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 163-164 (2001) (considering the validity of an application of § 328.3(a)(3) (1999), which is substantively identical to § 323.2(a)(3) (1985) and to § 323.2(a)(5) (1978)). Wetlands adjacent to tributaries of traditionally navigable waters were covered in the 1985 regulation by other provisions of the regulation, namely, a combination of §§323.2(a)(1) (covering traditionally navigable waters), (4) (covering tributaries of subsection (a)(1) waters), and (7) (covering wetlands adjacent to subsection (a)(4) waters). As The Chief Justice observes, the Corps and the EPA initially considered revising their regulations in response to SWANCC. Ante, at 757-758 (concurring opinion). The Chief Justice neglects to mention, however, that almost all of the 43 States to submit comments opposed any significant narrowing of the Corps’ jurisdiction — as did roughly 99% of the 133,000 other comment submitters. See U. S. General Accounting Office, Report to the Chairman, Subcommittee on Energy Policy, Natural Resources and Regulating Affairs, Committee on Government Reform, House of Representatives, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction, GAO-04-297, pp. 14-15 (Feb. 2004), http://www.gao.gov/new.items/ d04297.pdf (hereinafter GAO Report) (all Internet materials as visited June 14,2006, and available in Clerk of Court’s case file); Brief for Association of State and Interstate Water Pollution Control Administrators as Amicus Curiae. In any event, the agencies’ decision to abandon their rulemaking is hardly responsible for the cases at hand. The proposed rulemaking focused on isolated waters, which are covered by 33 CFR § 328.3(a)(3) (1999) and which were called into question by SWANCC, rather than on wetlands adjacent to tributaries of navigable waters, which are covered by a combination of §§ 328.3(a)(1), (5), and (7) and which (until now) seemed obviously within the agencies’ jurisdiction in light of Riverside Bayview. See 68 Fed. Reg. 1994 (2003) (“The agencies seek comment on the use of the factors in 33 CFR 328.3(a)(3)(i) — (iii)... in determining [Clean Water Act] jurisdiction over isolated, intrastate, non-navigable waters”). Unsurprisingly, most Courts of Appeals to consider the scope of the Corps’ jurisdiction after SWANCC have unhesitatingly concluded that this jurisdiction covers intermittent tributaries and wetlands adjacent — in the normal sense of the word — to traditionally navigable waters and their tributaries. E. g., United States v. Deaton, 332 F. 3d 698 (CA4 2003) (upholding the Corps’ jurisdiction over wetlands adjacent to a ditch that might not contain consistently flowing water but did drain into another ditch that drained into a creek that drained into a navigable waterway); Headwaters, Inc. v. Talent Irrigation Dist., 243 F. 3d 526 (CA9 2001) (treating as “waters of the United States” canals that held water intermittently and connected to other tributaries of navigable waters); United States v. Rueth Development Co., 335 F. 3d 598, 604 (CA7 2003) (observing “it is clear that SWANCC did not affect the law regarding... adjacency” in upholding the Corps’ jurisdiction over a wetland without finding that this wetland had a continuous surface connection to its adjacent tributary); Baccarat Fre mont v. U. S. Army Corps of Engineers, 425 F. 3d 1150, 1156 (CA9 2005) (upholding the Corps’ jurisdiction over wetlands separated by berms from traditionally navigable channels and observing that “SWANCC simply did not address the issue of jurisdiction over adjacent wetlands”); but see In re Needham, 354 F. 3d 340 (CA5 2003) (reading “waters of the United States” narrowly as used in the Oil Pollution Act of 1990). Indeed, “[t]he Corps approves virtually all section 404 permitís],” though often requiring applicants to avoid or mitigate impacts to wetlands and other waters. GAO Report 8. According to the Sunding and Zilberman article cited by the plurality, ante, at 721, for 80% of permits the mean cost is about $29,000 (with a median cost of about $12,000). The Economics of Environmental Regulation by Licensing: An Assessment of Recent Changes to the Wetland Permitting Process, 42 Natural Resources J. 59, 63, 74 (2002) (hereinafter Sunding & Zilberman). Only for less than 20% of the permits — those for projects with the most significant impacts on wetlands — is the mean cost around $272,000 (and the median cost is $155,000). Ibid. Of course, not every placement of fill or dredged material into the waters of the United States requires a §404 permit. Only when such fill comes from point sources — “discernible, confined and discrete eonveyance[s]” — is a § 404 permit needed. 33 U. S. C. §§ 1362(12), (14). Moreover, permits are not required for discharges from point sources engaged in, among other things, normal farming activities; maintenance of transportation structures; and construction of irrigation ditches, farm roads, forest roads, and temporary mining roads. § 1344(f). Rather than defending its own antagonism to environmentalism, the plurality counters by claiming that my dissent is “policy-laden.” Ante, at 746. The policy considerations that have influenced my thinking are Congress’ rather than my own. In considering whether the Corps’ interpretation of its jurisdiction is reasonable, I am admittedly taking into account the congressional purpose of protecting the physical, chemical, and biological integrity of our waters. See 33 U. S. C. § 1251(a); see also Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 863 (1984) (considering whether the agency regulation was consistent with “the policy concerns that motivated the [Clean Air Act’s] enactment”). Only 3 of the 21 amici briefs filed on petitioners’ behalf come even close to asking for one of the plurality’s two conditions. These briefs half-argue that intermittent streams should fall outside the Corps’ jurisdiction — though not for the reasons given by the plurality. See Brief for National Stone, Sand and Gravel Assn. et al. 20, n. 7; Brief for Foundation for Environmental and Economic Progress et al. 22-23; Brief for Western Coalition of Arid States 10. The plurality does suggest that “seasonal rivers” are not “necessarily exclude[d]” from the Corps’ jurisdiction — and then further suggests that “streams” are “rivers.” Ante, at 732, n. 5. I will not explore the semantic issues posed by the latter point. On the former point, I have difficulty understanding how a “seasonal” river could meet the plurality’s test of having water present “relatively permanent[ly].” By failing to explain itself, the plurality leaves litigants without guidance as to where the line it draws between “relatively permanent” and “intermittent” lies. Indeed, in the 1977 debate over whether to restrict the scope of the Corps’ regulatory power, Senator Bentsen recognized that the Corps’ jurisdiction “cover[s] all waters of the United States, including small streams, ponds, isolated marshes, and intermittently flowing gullies.” 4 Legislative History of the Clean Water Act of 1977 (Committee Print compiled for the Senate Committee on Environment and Public Works by the Library of Congress), Ser. No. 95-14, p. 903 (1978). His proposed amendment to restrict this jurisdiction failed. Id., at 947. The plurality’s reasoning to the contrary is mystifying. The plurality emphasizes that a ditch around a castle is also called a “moat” and that a navigable manmade channel is called a “canal.” See ante, at 736, n. 7. On their face (and even after much head scratching), these points have nothing to do with whether we use the word “stream” rather than “ditch” where permanently present water is concerned. Indeed, under the plurality’s reasoning, we would call a “canal” a “stream” or a “river” rather than a “canal.” Moreover, we do use words like “ditch” without regard to whether water is present relatively permanently. In Jennison v. Kirk, 98 U. S. 453 (1879), for example, Justice Field used the term “ditch” — not “stream” — in describing a manmade structure that carried water year round. See also, e. g., Knoxville Water Co. v. Knoxville, 200 U. S. 22, 27 (1906) (opinion for the Court by Harlan, J.) (describing “pipes” that would continuously carry water); ante, at 739, 742 (plurality opinion) (using “channel” with reference to both intermittent and relatively permanent waters); PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700, 709 (1994) (describing a “tunnel” that would carry water year round); New Orleans Water-Works Co. v. Rivers, 115 U. S. 674, 683 (1885) (opinion for the Court by Harlan, J.) (describing “conduits” that would supply water for a hotel). The plurality’s attempt to achieve its desired outcome by redefining terms does no credit to lexicography — let alone to justice. See, e. g., Screws v. United States, 325 U. S. 91, 131-134 (1945) (Rutledge, J., concurring in result); Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 674 (1994) (Stevens, J., concurring in part and concurring in judgment); Hamdi v. Rumsfeld, 542 U. S. 507, 553-554 (2004) (Souter, J., concurring in part, dissenting in part, and concurring in judgment). I assume that Justice Kennedy’s approach will be controlling in most cases because it treats more of the Nation’s waters as within the Corps’ jurisdiction, but in the unlikely event that the plurality’s test is met but Justice Kennedy’s is not, courts should also uphold the Corps’ jurisdiction. In sum, in these and future cases the United States may elect to prove jurisdiction under either test.

Rapanos v. United States

Justice Breyer, dissenting. In my view, the authority of the Army Corps of Engineers under the Clean Water Act extends to the limits of congressional power to regulate interstate commerce. See Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 181-182 (2001) (SWANCC) (Stevens, J., dissenting). I therefore have no difficulty finding that the wetlands at issue in these cases are within the Corps’ jurisdiction, and I join Justice Stevens’ dissenting opinion. My view of the statute rests in part upon the nature of the problem. The statute seeks to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U. S. C. § 1251(a). Those waters are so various and so intricately interconnected that Congress might well have decided the only way to achieve this goal is to write a statute that defines “waters” broadly and to leave the enforcing agency with the task of restricting the scope of that definition, either wholesale through regulation or retail through development permissions. That is why I believe that Congress, in using the term “waters of the United States,” §1362(7), intended fully to exercise its relevant Commerce Clause powers. I mention this because the Court, contrary to my view, has written a “nexus” requirement into the statute. SWANCC, supra, at 167; ante, at 779 (Kennedy, J., concurring in judgment) (“[T]he Corps’ jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense”). But it has left the administrative powers of the Army Corps of Engineers untouched. That agency may write regulations defining the term — something that it has not yet done. And the courts must give those regulations appropriate deference. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). If one thing is clear, it is that Congress intended the Army Corps of Engineers to make the complex technical judgments that lie at the heart of the present cases (subject to deferential judicial review). In the absence of updated regulations, courts will have to make ad hoc determinations that run the risk of transforming scientific questions into matters of law. That is not the system Congress intended. Hence I believe that today’s opinions, taken together, call for the Army Corps of Engineers to write new regulations, and speedily so.

Baccarat Fremont Developers, LLC v. United States Army Corps of Engineers

WILLIAM A. FLETCHER, Circuit Judge: Baccarat Fremont Developers, LLC (“Baccarat”) seeks to set aside the determination by the Army Corps of Engineers (the “Corps”) that under the Clean Water Act (“CWA”) it has jurisdiction over 7.66 acres of wetlands located on property owned by Baccarat in Fremont, California. The Corps asserts jurisdiction based on the fact that the wetlands are adjacent to waters of the United States. Baccarat argues that after the Supreme Court’s decision in Solid Waste Agency of N. Cook County v. United States Army Corps of Engineers, 581 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (“SWANCC”), adjacency is no longer sufficient to establish the Corps’ jurisdiction under the CWA. In Baccarat’s view, the Corps failed to demonstrate an adequate hydrological or ecological connection between these particular wetlands and the adjacent waters of the United States. We affirm the district court’s grant of summary judgment in favor of the Corps. I. Background In July 1997, Baccarat purchased a 30.98 acre site (“the site”) near San Francisco Bay in Fremont, California, on which it planned to develop a six-building office, research, and manufacturing facility. The site is roughly rectangular. It is bordered on the north by Cushing Parkway, on the east by Fremont Boulevard, and on the south and west by property owned by the Alameda County Flood Control District (“ACFCD”). Two ACFCD flood control channels run parallel to the southern and western boundaries of the site. The flood control channels are navigable and connect with the Bay. The site contains 7.66 acres of wetland. The wetlands are separated from the flood control channels by man-made berms, which follow the southern and western boundaries of the site. A maintenance road runs on top of the berms. If the berms were removed, the wetlands would connect directly to the flood control channels. Baccarat asserts that if the berms were removed, the wetlands would drain entirely. At the closest point, the wetlands are 65-70 feet from the flood control channels. The wetlands on the site are separated into six delineated areas, five of which are at issue in this case. The sixth area (designated Wetland 4) receives tidal flow through a culvert from an ACFCD channel, and the Corps’ jurisdiction over the wetlands in that area is not in dispute. In February 1998, at Baccarat’s request, the Corps’ San Francisco District (“the District”) determined that it had jurisdiction under the CWA over 7.66 acres of wetland on the site. Baccarat then sought a permit from the District to fill 2.36 of those acres. On January 29, 2001, Baccarat requested that the Corps reconsider its jurisdiction over the wetlands on the site in light of the Supreme Court’s decision in SWANCC. By a letter dated May 8, 2001, the District reaffirmed its determination of jurisdiction, explaining that SWANCC “did not eliminate the Corps’ authority to regulate wetlands adjacent to a tidal waterway.” The District noted that the flood control channels are “within 250 feet of the site’s western and southern boundaries,” and that under 33 C.F.R. § 328.3(c), the presence of the man-made berms did not defeat adjacency. Finally, the District noted that water from the wetlands would flow into the flood control channel during storms if not for the man-made berms. Baccarat appealed the District’s determination to the Corps’ South Pacific Division (“the Division”). After an appeal conference and site visit, the Division issued its decision on October 25, 2001. The Division rejected Baccarat’s contention that SWANCC modified the Corps’ jurisdiction over adjacent wetlands. However, the Division found that the District had not provided sufficient evidence for its adjacency determination, and that the District’s finding that the wetlands would drain into the ACFCD channels but for the berms was irrelevant to the jurisdictional determination. The Division remanded to the District. On January 28, 2002, the District determined once again that the wetlands on the site are adjacent to tidal waters and thus subject to the Corps’ jurisdiction under the CWA. In an accompanying Memorandum for Record, the District set forth six reasons for so holding: (1) that barriers such as berms do not defeat adjacency pursuant to 33 C.F.R. § 328.3(c); (2) that the wetlands are in reasonable proximity to the ACFCD flood control channels; (3) that the wetlands serve important functions that contribute to the aquatic environment in general and to the nearby tidal waters in particular; (4) that the wetlands’ functions are particularly important given the reduction of wetlands in the San Francisco Bay area; (5) that the wetlands are within the 100 year floodplain of tidal waters; and (6) that the wetlands are part of a hydric soil unit that is contiguous with the area covered by tidal waters. The District noted that it agreed with the Division that it was irrelevant to the jurisdictional determination that the wetlands would drain into the ACFCD channels but for the berms. The District’s January 28, 2002, decision was the Corps’ final decision under 33 C.F.R. § 331.10. On February 6, 2002, the Corps offered Baccarat a permit to fill 2.36 acres of wetland, subject to the condition that it (1) create on-site a minimum of 2.36 acres of seasonal freshwater wetlands and (2) enhance the remaining 5.3 acres of existing brackish wetlands. Baccarat signed the permit, reserving the right to seek judicial review of the Corps’ jurisdictional determination. The permit was issued on March 1, 2002. Baccarat sued the Corps in California Superior Court, seeking declaratory and injunctive relief from the Corps’ determination that it has jurisdiction under the CWA. Baccarat also named as defendants Lt. Colonel O’Rourke of the Corps; the State Water Resources Control Board and its Director, Celeste Cantu; the San Francisco Regional Water Quality Control Board and its Executive Officer, Loretta K. Barsamian; and the City of Fremont. The suit was removed to federal district court. The district court granted the City of Fremont’s motion to dismiss for lack of jurisdiction, and remanded to state court Baccarat’s claims against the state defendants. The district court granted summary judgment to the Corps, holding that the Corps has jurisdiction. II. Discussion A. Standard of Review We review the district court’s grant of summary judgment de novo. Universal Health Sens., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004). Viewing the evidence in the light most favorable to the nonmoving party, we ask whether there are any genuine issues of material fact in dispute and whether the district court applied the relevant substantive law correctly. Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir.2001). Under the Administrative Procedure Act (“APA”), we may set aside an agency decision if it is “arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). The arbitrary and capricious standard is appropriate for the resolution of factual disputes implicating substantial agency expertise. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375-76, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). In reviewing an agency decision under the APA, we ask whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Id. at 378, 109 S.Ct. 1851. We may reverse under the arbitrary and capricious standard only if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Pacific Coast Fed’n of Fishermen’s Ass’ns, Inc. v. National Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir.2001) (citation omitted). B. The Corps’ Adjacency Jurisdiction We conclude that the Corps has jurisdiction over wetlands under the Clean Water Act, 33 U.S.C. §§ 1251 et seq. The CWA prohibits the discharge of pollutants into navigable waters. See 33 U.S.C. §§ 1311(a), 1344(b), 1344(d) and 1362(12). “The term ‘navigable waters’ means the waters of the United States.” 33 U.S.C. § 1362(7). The Corps has issued a regulation defining “waters of the United States” as follows: (a) The term “waters of the United States” means (1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; * * * (3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters; (5) Tributaries of waters identified in paragraphs (a)(1) through (4) of this section; * * * (7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1) through (6) of this section. 33 C.F.R. § 328.3 (emphasis added). The regulations further provide that the term “ ‘adjacent’ means bordering, contiguous, or neighboring,” and they specify that “[wjetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands.’ ” 33 C.F.R. § 328.3(c). The parties agree that the ACFCD flood control channels contain waters of the United States. The Corps determined that the wetlands on Baccarat’s site are adjacent to the flood control channels, thus placing them within the jurisdiction of the Corps pursuant to the adjacency clause in 33 C.F.R. § 328.3(a)(7). Baccarat argues that adjacency alone is insufficient to support the Corps’ jurisdiction. In Baccarat’s view, for the Corps to have jurisdiction, there must be a significant hydrological or ecological connection between the wetlands and the jurisdictional water on which the adjacency determination is based. The text of the CWA and the implementing regulations promulgated by the Corps give no indication that a significant hydrological or ecological connection is a condition of Corps jurisdiction over adjacent wetlands. Baccarat relies on the Supreme Court’s decision in SWANCC to support its contention that adjacent wetlands must be hydrologically or ecologically connected to waters of the United States. SWANCC, however, did not address the Corps’ adjacency jurisdiction. Rather, it invalidated the Corps’ Migratory Bird Rule. Under the Migratory Bird Rule, the Corps asserted jurisdiction based on the CWA over intrastate waters that migratory birds used as a habitat. SWANCC, 531 U.S. at 163-64, 121 S.Ct. 675. The waters at issue in SWANCC were “isolated ponds, some only seasonal, wholly located within two Illinois counties.” Id. at 171,121 S.Ct. 675. The Court held that the Migratory Bird Rule was not “fairly supported by the CWA,” id. at 167, 121 S.Ct. 675, on the ground that reading the CWA to extend jurisdiction to inland ponds like those at issue in SWANCC would effectively read the term “navigable waters” out of the statute. Id. at 171-72, 121 S.Ct. 675. The Corps did not assert that the waters at issue in SWANCC were adjacent to waters of the United States, and the Court’s opinion did not address the Corps’ jurisdiction over adjacent wetlands. The Supreme Court had explicitly addressed the Corps’ jurisdiction over adjacent wetlands based on the CWA in an earlier case, United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). In that case, the Court unanimously upheld the Corps’ jurisdiction over wetlands adjacent to waters of the United States, reasoning that “the Corps’ ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.” Id. at 134, 106 S.Ct. 455. In so holding, the Court acknowledged that some adjacent wetlands might not be environmentally significant to their adjoining bodies of water. Nevertheless, the Court concluded that the Corps had acted properly in defining all adjacent wetlands as waters of the United States. Id. at 135, 106 S.Ct. 455. In footnote 9, the Court wrote: Of course, it may well be that not every adjacent wetland is of great importance to the environment of adjoining bodies of water. But the existence of such cases does not seriously undermine the Corps’ decision to define all adjacent wetlands as “waters.” If it is reasonable for the Corps to conclude that in the majority of cases, adjacent wetlands have significant effects on water quality and the aquatic ecosystem, its definition can stand. That the definition may include some wetlands that are not significantly intertwined with the ecosystem of adjacent waterways is of little moment, for where it appears that a wetland covered by the Corps’ definition is in fact lacking in importance to the aquatic environment — or where its importance is outweighed by other values — the Corps may always allow development of the wetland for other uses simply by issuing a permit. Id. at 135 n. 9, 106 S.Ct. 455 (citation omitted). In this passage, the Court rejected the idea that for the Corps to have jurisdiction over adjacent wetlands it must demonstrate a significant hydrological or ecological connection between the particular wetlands in question and the jurisdictional water to which it is adjacent. As the Court explained, the fact that the Corps has determined that the majority of adjacent wetlands have significant effects on neighboring aquatic ecosystems is sufficient to support the Corps’ assertion of jurisdiction over other wetlands that are not “significantly intertwined” with such ecosystems. Baccarat argues that we should read footnote 9 of Riverside Bayview Homes differently. According to Baccarat, refusing to invalidate a regulatory “definition” on the grounds that “not every adjacent wetland is of great importance to the environment of adjoining bodies of water” is not the same thing as saying that in an individual case requiring a jurisdictional delineation by the Army Corps, no evidence of a hydrological and ecological connectivity is required. Every jurisdictional claim made by the Army Corps must be factually based. Otherwise, the Army Corps’ claim of jurisdiction is arbitrary and capricious for failure to articulate a rational connection between the facts found and the choice made. In our view, Baccarat misreads footnote 9. According to the Supreme Court, when the Corps is confronted with adjacent wetlands that are not “significantly intertwined” with the ecosystem of adjacent waterways, it “may ... allow development ... simply by issuing a permit.” 474 U.S. at 135 n. 9, 106 S.Ct. 455. Thus, the Court clearly contemplates the Corps’ jurisdiction over adjacent wetlands, even when they lack a significant ecological connection with waters of the United States. Otherwise the issuance of a permit would be both unnecessary and ultra vires. We do not read Riverside Bayview Homes to deprive the Corps of jurisdiction over particular wetlands that fall within the adjacency regulation if they lack a significant hydrological or ecological connection to waters of the United States. Rather, under Riverside Bayview Homes, the Corps’ determination that a majority of adjacent wetlands have important ecological connections to waters of the United States is sufficient to support its regulations establishing jurisdiction over other adjacent wetlands that fall within the adjacency clause in 33 C.F.R. § 328.3(a)(7). Baccarat’s reading of SWANCC is similarly unpersuasive. SWANCC did not retreat from the view expressed in Riverside Bayview Homes that the Corps’ determination that the majority of adjacent wetlands have an ecological connection to waters of the United States is sufficient to support broader jurisdiction over other adjacent wetlands. Indeed, SWANCC repeatedly referred to the holding of Riverside Bayview Homes — “that § 404(a) [of the CWA] extend[s] to nonnavigable wetlands adjacent to open waters” — without giving any indication that it intended to modify or overrule that unanimous ruling. Id. at 167-68, 172, 106 S.Ct. 455. SWANCC simply did not address the issue of jurisdiction over adjacent wetlands. The Court noted in SWANCC that to hold for the Corps, it would have “to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water.” Id. at 168, 106 S.Ct. 455 (emphasis in original). The fact that the Court in SWANCC refused to allow the Corps to extend its jurisdiction to waters that are not adjacent to jurisdictional waters on the basis of migratory bird patterns has no bearing on its earlier holding that the Corps has jurisdiction over wetlands that are adjacent to jurisdictional waters. Our decision in Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Cir.2001), does not support the conclusion that a significant hydrological or ecological connection is necessary for Corps jurisdiction over adjacent wetlands. In Headwaters, we upheld the EPA’s jurisdiction over irrigation canals, finding that they were “tributaries” and thus fell within the regulatory definition of “waters of the United States.” We distinguished SWANCC by noting that the irrigation canals were not isolated, but rather “reeeive[d] water from natural streams and lakes, and ... [were] connected as tributaries to other ‘waters of the United States.’ ” Id. at 533. Headwaters might be read to suggest that when the question is whether a water is properly classified as a “tributary” subject to Corps jurisdiction, that water must exchange water, at least intermittently, with a water of the United States. However, Headwaters cannot be read to address the different question at issue here^ — -whether a significant hydrological or ecological connection to a particular adjacent wetland is required for Corps jurisdiction. Baccarat’s contention that a significant hydrological or ecological connection is required to support the Corps’ jurisdiction over particular adjacent wetlands is thus not supported by the CWA, by the implementing regulations, by Supreme .Court case law, or by our case law. We hold that no such connection is required, and that the district court appropriately granted the Corps’ motion for summary judgment. In so holding, we join the Sixth Circuit in rejecting the idea that SWANCC modified the holding of Riverside Bayview Homes. See Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir.2004) cert. granted, 73 U.S.L.W. 3632 (U.S. Oct. 11, 2005)(No. 04-1384). The facts in Cara-bell are remarkably similar to the facts here. The Carabells sought permission to fill 15.9 acres of wetland. The Corps declined to issue a permit. The Carabells then brought suit in federal court, arguing that the Corps lacked jurisdiction over the wetlands. The court described the relationship of the plaintiffs’ wetlands to waters of the United States as follows: The record here establishes that the unnamed ditch running along the hypotenuse of the Carabells’ triangle-shaped property is separated from wetlands only by a man-made berm or barrier. At its northeastern end, the ditch is connected to the Sutherland-Oemig Drain, a drain that empties into the Auvase Creek, which, in turn, empties into Lake St. Clair, which connects to Lake Huron and Lake Erie. At its southwestern end, the ditch is connected to other ditches, which — like the Sutherland-Oemig Drain — outlet into the Au-vase Creek and eventually into Lake St. Clair. The ditch, then, is connected on either end to tributaries of “waters of the United States” as defined in the regulations. Id. at 708. The Sixth Circuit concluded that [bjecause the wetlands on the Carabells’ property are separated from a tributary of “waters of the United States” only by a man-made berm or barrier, they are considered “adjacent wetlands” under § 328.3(a)(7). As such, the wetlands at issue fall within the jurisdiction of the Corps for purposes of the CWA. Id. at 708-09. Like Baccarat, the Carabells argued that SWANCC modified Riverside Bay-view Homes and limited the Corps’ jurisdiction over adjacent wetlands. The Sixth Circuit emphatically rejected the argument: In SWANCC ... the Court did not alter the Riverside Bayview holding. Indeed, while noting Congress’s “unequivocal acquiescence to, and approval of, the Corps’ regulations interpreting the CWA to cover wetlands adjacent to navigable waters,” the SWANCC Court did not decide any issue with regard to “adjacent wetlands” under 33 C.F.R. § 328.3(a)(7). 391 F.3d at 709 (citation omitted). We note that even if the CWA did require demonstration of a significant nexus on a case-by-case basis (which it does not), there is no question that one exists here. In making its jurisdictional determination, the Corps found (1) that the wetlands on the site are in reasonable proximity to the ACFCD flood control channels; (2) that the wetlands serve important functions that contribute to the aquatic environment in general and to the nearby tidal waters in particular; (3) that the wetlands’ functions are particularly important given the reduction of wetlands in the San Francisco Bay area; (4) that the wetlands are within the 100 year floodplain of tidal waters; and (5) that the wetlands are part of a hydric soil unit that is contiguous with the area covered by tidal waters. Even viewing the evidence in the light most favorable to Baccarat, we cannot hold that these findings are arbitrary or capricious, as would be required to set them aside under the APA. Marsh, 490 U.S. at 376-77, 109 S.Ct. 1851. Taken together, the Corps’ findings would be more than sufficient to establish a significant nexus between the wetlands on the site and the flood control channels, were such a showing required. Conclusion In Riverside Bayview Homes, the Supreme Court upheld the Corps’ exercise of jurisdiction over adjacent wetlands as defined in 33 C.F.R. § 328.3(c). SWANCC did not modify Riverside Bayview Homes. The Corps’ jurisdiction over wetlands falling within the adjacency clause in 33 C.F.R. § 328.3(a)(7) does not depend on the existence of a significant hydrological or ecological connection between the particular wetlands at issue and waters of the United States. Since there is no genuine issue of material fact in dispute as to whether the wetlands on the site fall within the Corps’ jurisdiction, we affirm the district court’s grant of summary judgment. AFFIRMED.

United States v. Gerke Excavating, Inc.

POSNER, Circuit Judge. This suit charges that the defendant violated the Clean Water Act by discharging pollutants into navigable waters from “point sources” without the permit from the Corps of Engineers that is required when the pollutant consists of dredge or fill material (otherwise the permit must be sought from the EPA or, in some cases, a state). 33 U.S.C. §§ 1311(a), 1362(12). The district judge granted summary judgment for the government and imposed a civil penalty of $55,000 on the defendant. The Clean Water Act defines “navigable waters” as “waters of the United States.” Id. § 1362(7). A regulation defines the latter term to include not only waters “susceptible to use in interstate or foreign commerce,” which are “navigable waters” in the usual sense, but also tributaries of such waters and- — of particular pertinence to this case — “wetlands adjacent to” such waters or to such tributaries. 33 C.F.R. §§ 328.3(a)(1), (5), (7). (That is the Corps’ regulation; the EPA’s, 40 C.F.R. §§ 230.3(b)(1), (5), (7), is identical.) The defendant dumped dredged stumps and roots, plus sand-based fill (all conceded to be pollutants within the meaning of the Act, 33 U.S.C. § 1362(6); Borden Ranch Partnership v. U.S. Army Corps of Engineers, 261 F.3d 810, 814-15 (9th Cir. 2001); United States v. Deaton, 209 F.3d 331, 335 (4th Cir.2000); Driscoll v. Adams, 181 F.3d 1285, 1291 (11th Cir.1999)), into a patch of what it concedes are wetlands within the meaning of the regulation. It also concedes that the means of the dumping — bulldozers and dump trucks — are “point sources.” 33 U.S.C. § 1362(14); Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1009 (11th Cir.2004); Borden Ranch Partnership v. U.S. Army Corps of Engineers, supra, 261 F.3d at 815; United States v. Pozsgai, 999 F.2d 719, 726 n. 6 (3d Cir.1993); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 922 (5th Cir.1983). Located on a 5.8 acre tract near Tomah, Wisconsin, that the owner wanted to develop, the wetlands are drained by a ditch that runs into a nonnavigable creek that runs into the nonnavigable Lemonweir River, which in turn runs into the Wisconsin River, which is navigable. The Lemon-weir River is thus a tributary of a navigable river, but are the wetlands “adjacent” to the Lemonweir? They are connected to it in the sense that water from the wetlands flows into the river, but they might be thought “adjacent” not to the river but merely to the ditch, and a ditch is not what one would ordinarily understand as a “tributary.” The Wisconsin River, because it flows into the Mississippi, is connected to the Gulf of Mexico, but it would be odd to describe it as “adjacent” to the gulf. Gerke, however, does not argue that the regulation is inapplicable to this case, and would not get far with the argument because of how the regulation has been interpreted — as treating a ditch connected to a tributary of a navigable waterway as a tributary of a tributary, e.g., Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704, 708-09 (6th Cir.2004); United States v. Deaton, 332 F.3d 698, 704 (4th Cir.2003), just as the Lemonweir River itself is a tributary of a tributary of the Mississippi River. A stream can be a tributary; why not a ditch? A ditch can carry as much water as a stream, or more; many streams are tiny. It wouldn’t make much sense to interpret the regulation as distinguishing between a stream and its man-made counterpart. Gerke argues instead that the regulation exceeds the authority granted the Corps of Engineers by the Clean Water Act because the wetlands are not “waters of the United States,” or, if the regulation is within the congressional grant of authority, then it exceeds the authority that the commerce clause of the Constitution grants Congress. The arguments are interchangeable, since the only reason Gerke gives to doubt the validity of the regulation is the principle that the meaning of a statute or a regulation can be stretched where that is necessary to avoid its being held unconstitutional. The idea here would be that the Corps of Engineers would prefer a bobtailed regulation to none if that is the choice forced on it by the Constitution. Congress can regulate waterways used to transport people and goods in interstate or foreign commerce. Kaiser Aetna v. United States, 444 U.S. 164, 173-74, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); United States v. Rands, 389 U.S. 121, 122-23, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967); Gilman v. City of Philadelphia, 70 U.S. (3 Wall.) 713, 724-25, 18 L.Ed. 96 (1865); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189-97, 6 L.Ed. 23 (1824). Those are the waterways that the term “navigable waters” conventionally denotes (though a river could be navigable even though it was entirely within one state). The Wisconsin River, not to mention the Mississippi River into which it flows, is a navigable waterway in the conventional sense. The most elementary type of federal regulation of such waterways that the commerce clause authorizes is regulation aimed at making sure they remain navigable, in the sense of usable in interstate or foreign commerce, rather than allowing them to become obstructed, as by low-lying bridges, Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518, 14 L.Ed. 249 (1852), or to become too shallow for navigation by large vessels because the sources of their water are being diminished by dams, silting, or real estate development. There are believed to be more than 100 million acres of wetlands in the lower 48 states, Thomas E. Dahl, “Status and Trends of Wetlands in the Conterminous United States 1986 to 1997” 9 (U.S. Fish & Wildlife Service 2000), and they supply some of the water in navigable waterways. Ralph W. Tiner, “Correlating Enhanced National Wetlands Inventory Data with Wetland Functions for Watershed Assessments: A Rationale for Northeastern U.S. Wetlands” 6-7 (U.S. Fish & Wildlife Service 2003). .Also, by temporarily storing storm water, wetlands reduce flooding, which can interfere with navigation. Office of Technology Assessment, U.S. Congress, ‘Wetlands: Their Use and Regulation” 43-47 (1984). Obviously, filling in a 5.8 acre tract (not all of it wetlands — we do not know how much of it is) is not going to have a measurable effect on the depth of the Wisconsin or Mississippi Rivers. But that cannot be the test. The sum of many small interferences with commerce can be large, and so to protect commerce Congress must be able to regulate an entire class of acts if the class affects commerce, even if no individual act has a perceptible effect. See, e.g., Gonzales v. Raich, — U.S. -,-, 125 S.Ct. 2195, 2205-07, - L.Ed.2d - (2005); Wick-ard v. Filburn, 317 U.S. 111, 118-29, 63 S.Ct. 82, 87 L.Ed. 122 (1942); United States v. Hicks, 106 F.3d 187, 188-90 (7th Cir.1997); United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir.1997), and, with specific reference to the regulation of navigable waters, United States v. Deaton, supra, 332 F.3d at 706-07; cf. Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 525-26, 61 S.Ct. 1050, 85 L.Ed. 1487 (1941). Congress’s power to regulate commerce is not limited to removing obstructions; otherwise it could not forbid trafficking in controlled substances, a program designed to reduce a form of commerce. Congress may forbid the pollution of navigable waters even if the pollution has no effect on navigability, which is the usual case, though we’ve found a couple of cases in which pollution did impede navigability. Kernan v. American Dredging Co., 355 U.S. 426, 427-28, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958); United States v. Ashland Oil & Transportation Co., 504 F.2d 1317, 1326 (6th Cir.1974). In fact navigability is a red herring from the standpoint of constitutionality. The power of Congress to regulate pollution is not limited to polluted navigable waters; the pollution of groundwater, for example, is regulated by federal law, e.g., 42 U.S.C. §§ 300h, 6949a(c), 9621(d)(2)(B)(ii), because of its effects on agriculture and other industries whose output is shipped across state lines, and such regulation has been held to be authorized by the commerce clause. Freier v. Westinghouse Electric Corp., 303 F.3d 176, 202-03 (2d Cir.2002); United States v. Olin Corp., 107 F.3d 1506, 1510-11 (11th Cir.1997); cf. Allied Local & Regional Mfrs. Caucus v. United States EPA 215 F.3d 61, 81-83 (D.C.Cir.2000). In Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 964-66 (7th Cir.1994), we noted that in excluding groundwater from the definition of “waters of the United States,” Congress in the Clean Water Act had declined to exercise its constitutional power to the utmost. So it doesn’t matter whether the objection to allowing the Gerkes of this world to dry out wetlands is that the effect may be to reduce water levels in navigable waterways to the point at which navigation would be affected or that the effect may be to increase the level of pollution in such waters by reducing the supply of unpolluted wetlands water. Nothing in the Constitution forbids interpreting the Clean Water Act to cover any wetlands that are connected to navigable waters. Whether the wetlands are 100 miles from a navigable waterway or 6 feet, if water from the wetlands enters a stream that flows into the navigable waterway, the wetlands are “waters of the United States” within the meaning of the Act. United States v. Rapanos, 339 F.3d 447, 450-53 (6th Cir.2003); United States v. Deaton, supra, 332 F.3d at 704-12. Gerke argues that the wetlands of the United States are so extensive that the Corps’ interpretation will tilt the balance between federal and state power too far in the direction of the federal government. In re Needham, 354 F.3d 340, 344-46 (5th Cir.2003); see also Rice v. Harken Exploration Co., 250 F.3d 264, 267-69 (5th Cir.2001). Gerke reminds us of recent decisions by the Supreme Court which hold that the commerce power is not plenary, such as United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The argument, however, is two-edged. The more extensive the wetlands, the greater their potential importance as a source of water to keep the navigable waterways full and clean. Granted, a particular wetlands could be extensive yet not be a source of water for navigable waterways. In a decision about wetlands that are isolated from navigable waterways, the Supreme Court held in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001), that such wetlands are not “waters of the United States.” Gerke fastens on the sentence in the opinion that states that the Clean Water Act does not extend “to ponds that are not adjacent to open water.” Id. at 168, 121 S.Ct. 675 (emphasis in original). It is dangerous, however, to take judicial language out of context; the case was about a pond that was completely isolated from any navigable waterway, tributary, etc. As we noted in United States v. Rueth Development Co., 335 F.3d 598, 603-04 (7th Cir.2003), SWANCC did not overrule United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), which had held that a wetlands that actually abutted a navigable waterway was constitutionally regulable. It cannot make any difference if instead of abutting, the wetlands is connected to the waterway by a pipe two feet long. Even taken out of context, the sentence Gerke fastens on doesn’t do the work it thinks it does. For “adjacent” can just mean “connected,” and “open water” can just mean water that is part of the waters of the United States because it flows into navigable waterways. AFFIRMED.

Carabell v. United States Army Corps of Engineers

OPINION STAFFORD, District Judge. Plaintiffs appeal the summary judgment for the defendants in this action to review final agency action under the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387. We affirm. I. Plaintiffs, June Carabell, Keith Carabell, Harvey Gordenker, and Frances Gordenker (collectively, “Carabells”), own 19.61 acres of property in Chesterfield Township, Macomb County, Michigan. In prehistoric times, this property was submerged under Lake St. Clair. As the lake receded over time, some areas of the Cara-bells’ property remained covered by wetlands. Today, the property — located approximately one mile northwest of Lake St. Clair — encompasses 15.96 acres of wooded wetlands, constituting one of the last remaining large forested wetland parcels in Macomb County. The Carabells want to construct a large multi-family condominium development on their property. The property is shaped like an inverted right triangle, the hypotenuse of which runs from the southwestern corner of the parcel at a 45 degree angle to the northeast corner. Following the hypotenuse and separating the Cara-bells’ property from the adjacent property is an unnamed ditch. When the ditch was excavated, the spoils were cast to either side of the ditch, creating upland berms approximately four feet wide along the banks of the ditch. The berm edging the Carabells’ property serves to block immediate drainage of surface water out of the parcel into the ditch. Wooded conditions exist up to the upland rim of the ditch. At the northeastern corner of the property, the ditch connects to the Sutherland-Oe-mig Drain, which empties into the Auvase Creek, which empties into Lake St. Clair, which is part of the Great Lakes drainage system. Although the record does not establish the direction of water flow in the ditch, the ditch empties either into the Sutherland-Oemig Drain at the northeastern corner of the property, or into ditches at the southwestern corner of the property that — -like the Sutherland-Oemig Drain— outlet into Auvase Creek and eventually into Lake St. Clair. In 1993, the Carabells applied to the Michigan . Department of Environmental Quality (“MDEQ”) for a permit to fill 15.9 acres of the forested area of their property for construction of a 130-unit condominium complex. The MDEQ initially denied their application after the United States Environmental Protection Agency (“EPA”) and the United States Fish and Wildlife Service filed comments opposing the application. The denial was based on findings that “the proposed activity would have a significant adverse impact on the natural resources, public interest and public trust held in the subject wetlands.” J.A. at 667. On appeal, a state administrative law judge (“ALJ”) ordered the MDEQ to issue the Carabells a state permit for a 112-unit alternative condominium development with on-site wetland enhancement. Consistent with the ALJ’s order, a permit was issued in November of 1998 over the EPA’s objections. The permit specifically stated that “[ajuthority granted by this permit does not waive any jurisdiction of the U.S. Army Corps of Engineers or the need for a federal permit.” J.A. at 49. Soon after the permit was issued, the EPA notified the MDEQ that the state-issued permit did not constitute authority under the CWA for the permitted activities. The EPA asserted its federal jurisdiction over the Carrabells’ project under the CWA, and it advised the MDEQ that the United States Army Corps of Engineers (“Corps”) had the authority under the CWA to process a federal permit application by the Carrabells. Although the Carrabells contested federal jurisdiction over their project, they nonetheless applied to the Corps for a permit to place 57,437 cubic yards of fill on the wetland. The application indicated that they would disrupt 15.87 acres of wetland but would dredge and replant 3.74 acres of wetland. On September 11, 2000, after three site inspections, the Corps issued its permit evaluation, stating that the operation and use of the proposed activity would have major, long term, negative impacts on water quality, on terrestrial wildlife, on the wetlands, on conservation, and on the overall ecology of the area. The Corps also stated that issuance of the permit would have minor negative impacts on downstream erosion and sedimentation, on flood hazards and floodplain values, and on aquatic wildlife. By letter dated October 5, 2000, the Corps notified the Carabells that their application for a permit had been denied. In its letter, the Corps stated: Your parcel is primarily a forested wetland that provides valuable seasonal habitat for aquatic organisms and year round habitat for terrestrial organisms. Additionally, the site provides water storage functions that, if destroyed, could result in an increased risk of erosion and degradation of water quality in the Sutherland-Oemig Drain, Auvase Creek, and Lake St. Clair. The minimization of impacts to these wetlands is important for conservation and the overall ecology of the region. Because the project development area is a forested wetland, the proposed project would destroy the resources in such a manner that they would not soon recover from impacts of the discharges. The extent of impacts in the project area when considered both individually and cumulatively would be unacceptable and contrary to the public interest. J.A. at 519. The Corps further explained that the denial was also based on the Carabells’ failure to overcome the presumption that there were less damaging practicable alternatives available. The Carabells filed an administrative appeal of the Corps’ decision denying their permit application. The Carabells argued (1) that the Corps lacked regulatory jurisdiction over the property because the wetlands were purportedly isolated from all outside waters by a spoil berm; (2) that the MDEQ’s permit issuance decision barred the Corps from denying the Cara-bells a permit; and (3) that the Corps should have issued the Carabells a permit because their proposed activities met all statutory and regulatory requirements. After a site visit by the appeal review officer and an appeal conference, the Cara-bells were notified that all of their grounds for appeal lacked merit and that their appeal had been denied. On July 26, 2001, the Carabells filed this action in federal district court. The case was referred to a magistrate judge, who held a hearing on the parties’ cross-motions for summary judgment. The magistrate judge recommended that the Cara-bells’ motion for summary judgment be denied and that the defendants’ motion for summary judgment be granted. Among other things, the magistrate judge concluded that “because Plaintiffs’ property is adjacent to neighboring tributaries of navigable waters and has a significant nexus to ‘waters of the United States,’ it is in fact not isolated, and is subject to the jurisdiction of the CWA.” J.A. at 849. The magistrate judge also found that the denial of the Carabells’ permit application was rational based on the Corps’ conclusions regarding the likely effects of the Carabells’ proposed project and on the Carabells’ failure to demonstrate the absence of less damaging practicable alternatives. After the Carabells filed objections to the magistrate judge’s report and recommendation, the district court entered an order and judgment accepting the magistrate judge’s recommendations and entering the report and recommendations as the court’s own findings and conclusions. This timely appeal ensued. II. We review the district court’s summary judgment order de novo. Sierra Club v. Slater, 120 F.3d 623, 632 (6th Cir.1997). Where, as here, the district court’s order is based on its review of an administrative agency’s final decision, our review is governed by the Administrative Procedure Act (“APA”). Id. The APA provides that a court shall set aside an agency’s decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This standard of review is highly deferential, and the court is “not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). An agency’s factual findings are conclusive if supported by substantial evidence, and an agency’s interpretation of its own regulations is entitled to substantial deference and will be upheld unless plainly erroneous or inconsistent with the regulatory text. 5 U.S.C. § 706(2)(E); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945); United States v. Cinemark USA, Inc., 348 F.3d 569, 578 (6th Cir.2003). III. On appeal, the Carabells maintain that the district court erred when it (1) held that the Corps had CWA jurisdiction over the Carabells’ property; and (2) affirmed the Corps’ decision to deny the Carabells’ permit application. A. The CWA requires landowners to obtain permits from the Corps before they discharge fill material into “navigable waters.” 33 U.S.C. § 1344(a). Congress has defined “navigable waters” as “waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). The EPA and the Corps have defined “waters of the United States” to include: (1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) All interstate waters including interstate wetlands; (3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce.... (4) All impoundments of waters otherwise defined as waters of the United States under the definition; (5) Tributaries of waters identified in paragraphs (a)(l)-(4) of this section; (6) The territorial seas; (7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1)-(6) of this section. 33 C.F.R. § 328.3(a) (Corps) (emphasis added); see also 40 C.F.R. § 122.2(EPA). The Corps defines “adjacent” to mean “bordering, contiguous, or neighboring.” 33 C.F.R. § 328.3(c). “Adjacent wetlands” include “wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.” Id. In this case, the district court determined that the Carabells’ property contains wetlands adjacent to neighboring tributaries of navigable waters of the United States. Specifically, the magistrate judge, whose report was accepted by the district court, found that: Plaintiffs’ property in this case is not isolated. It is undisputed that the property is adjacent to an unnamed ditch, and that the ditch connects to the Sutherland-Oemig Drain. The Drain, which neighbors a corner of the property, connects to Lake St. Clair. J.A. at 847. Having concluded that the Carabells’ property is not isolated from waters of the United States but instead constitutes “adjacent wetlands” within the meaning of the CWA, the district court decided that jurisdiction under the CWA existed. We agree with that decision. The record here establishes that the unnamed ditch running along the hypotenuse of the Carabells’ triangle-shaped property is separated from wetlands only by a man-made berm or barrier. At its northeastern end, the ditch is connected to the Sutherland-Oemig Drain, a drain that empties into the Auvase Creek, which, in turn, empties into Lake St. Clair, which connects to Lake Huron and Lake Erie. At its southwestern énd, the ditch is connected to other ditches, which — like the Sutherland-Oemig Drain — outlet into the Au-vase Creek and eventually into Lake St. Clair. The ditch, then, is connected on either end to tributaries of “waters of the United States” as defined in the regulations. Whether water in the ditch flows northeasterly or southwesterly, the ditch is necessarily a tributary of “waters identified in paragraphs (a)(l)-(6) of... section [328.3(a) ].” Because the wetlands on the Carabells’ property are separated from a tributary of “waters of the United States” only by a man-made berm or barrier, they are considered “adjacent wetlands” under § 328.3(a)(7). As such, the wetlands at issue in this case fall within the jurisdiction of the Corps for purposes of the CWA. The Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (“SWANCC”), does not persuade us otherwise. Before SWANCC, the Corps had defined its jurisdiction under the CWA as extending to intrastate waters that provide habitat for migratory birds. In rejecting the Corps’ “Migratory Bird Rule,” the SWANCC Court made clear that isolated intrastate waters cannot be subject to the Corps’ jurisdiction under the CWA. Id. at 166,121 S.Ct. 675. A minority of courts have read SWANCC broadly to limit the Corps’ jurisdiction under the CWA to navigable waters and non-navigable waters that directly abut navigable waters. See, e.g., In re Needham, 354 F.3d 340, 345-46 (5th Cir.2003). Conversely, a majority of courts, including this court, have narrowly interpreted SWANCC as holding only that the CWA does not reach isolated waters — in SWANCC, an abandoned, isolated gravel pit — having no connection with navigable waters. See, e.g., United States v. Rapanos, 339 F.3d 447, 452-53 (6th Cir.2003) (adopting a limited reading of SWANCC and concluding that the CWA reached a roadside ditch and its adjacent wetlands), cert. denied, — U.S.-, 124 S.Ct. 1875, 158 L.Ed.2d 467 (2004); United States v. Deaton, 332 F.3d 698, 702 (4th Cir.2003) (same). In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 135, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), the Supreme Court upheld the Corps’ “adjacent wetlands” jurisdiction. Noting that Congress chose to define the waters covered by the CWA broadly, the Court wrote: Of course, it may well be that not every adjacent wetland is of great importance to the environment of adjoining bodies of water. But the existence of such cases does not seriously undermine the Corps’ decision to define all adjacent wetlands as “waters.” If it is reasonable for the Corps to conclude that in the majority of cases, adjacent wetlands have significant effects on water quality and the aquatic ecosystem, its definition can stand. That the definition may include some wetlands that are not significantly intertwined with the ecosystem of adjacent waterways is of little moment, for where it appears that a wetland covered by the Corps’ definition is in fact lacking in importance to the aquatic environment — or where its importance is outweighed by other values — the Corps may always allow development of the wetland for other uses simply by issuing a permit. Id. at 135 n. 9, 106 S.Ct. 455. In SWANCC, moreover, the Court did not alter the Riverside-Bayview holding. Indeed, while noting Congress’s “unequivocal acquiescence to, and approval of, the Corps’ regulations interpreting the CWA to cover wetlands adjacent to navigable waters,” SWANCC, 531 U.S. at 167, 121 S.Ct. 675, the SWANCC Court did not decide any issue with regard to “adjacent wetlands” under 33 C.F.R. § 328.3(a)(7). The SWANCC Court instead addressed the application of the Corps’ Migratory Bird Rule to isolated ponds defined as “waters of the United States” under § 328.3(a)(3). 531 U.S. at 174, 121 S.Ct. 675. Since SWANCC, this court has noted: In Riverside Bayview the Supreme Court concluded that the Corps regulation extending jurisdiction to adjacent wetlands was a reasonable interpretation in part because of what [Solid Waste ] described as “the significant nexus between the wetlands and ‘navigable waters.’ ” There is also a nexus between a navigable waterway and its nonnavigable tributaries... .This nexus, in light of the “breadth of congressional concern for protection of water quality and aquatic ecosystems,” is sufficient to allow the Corps to determine reasonably that its jurisdiction over the whole tributary system of any navigable waterway is warranted. The regulation, as the Corps reads it, reflects a reasonable interpretation of the Clean Water Act. Rapanos, 339 F.3d at 452 (quoting Deaton, 332 F.3d at 712); see also United States v. Rapanos, 376 F.3d 629, 639 (6th Cir.2004) (explaining that CWA jurisdiction over “adjacent wetlands” requires a significant nexus between the wetlands and navigable waters, “which can be satisfied by the presence of a hydrological connection”). Consistent with both Rapanos cases, the district court in this case determined that there is a “significant nexus” between the wetlands on the Carabells’ property and the adjacent nonnavigable ditch abutting their property, a ditch that flows one way or another into other tributaries of navigable waters of the United States. We find no error in the district court’s decision. B. The Carabells contend that, even if CWA jurisdiction exists over their property, the district court nonetheless erred by failing to overrule the Corps’ decision on the merits of their permit application. Based on its review of the relevant regulations and the Corps’ evaluation of the Carabells’ permit application, the district court concluded that the Corps provided a rational basis for its decision. Because we agree that the Corps’ decision was neither arbitrary nor capricious, we find no basis for disturbing the district court’s determination. IV. For the foregoing reasons, we AFFIRM the district court’s decision granting summary judgment to the defendants.

United States v. Rapanos

OPINION REEVES, District Judge. Plaintiff-Appellee United States brought suit against the Defendants pursuant to the Federal Water Pollution Control Act Amendments of 1972, Pub.L. No. 92-500, 86 Stat. 817, as amended 33 U.S.C. § 1251 et seq., commonly known as the Clean Water Act (“CWA”). Defendants-Appellants John Rapanos, Judith Rapanos, Prodo, Inc., Rolling Meadows Hunt Club, and Pine River Bluff Estates, Inc. appeal the district court’s entry of judgment in favor of the United States. Prodo, Inc., Rolling Meadows Hunt Club, and Pine River Bluff Estates, Inc. are wholly owned by John and Judith Rapanos. For the reasons discussed below, we AFFIRM the judgment of the district court. BACKGROUND The Rapanos, through their wholly-owned companies, owned various parcels of land in Bay, Midland, and Saginaw Counties in Michigan. These parcels are known as the Salzburg, Hines Road, Pine River, Freeland, Mapleton, and Jefferson Avenue sites. The Rapanos were charged with illegally discharging fill material into protected wetlands at these sites between 1988 and 1997. The United States alleges that the Rapanos attempted to fill these wetlands to make the land more conducive to development. I. The Salzburg Site Before filling wetlands subject to CWA jurisdiction, a landowner must first obtain a permit from the Army Corps of Engineers (“Corps”). 33 U.S.C. § 1344. In December 1988, John Rapanos asked the state to inspect the Salzburg site in hope of obtaining a permit to construct a shopping center at this location. The state informed him that the site was likely a regulated wetland and sent him an application for the necessary permits. A state representative toured the site in March 1989, noting that the site probably contained wetlands but could be developed if the necessary permits were issued. Mr. Rapanos hired a consultant, Dr. Goff, to prepare a report detailing the wetlands on the Salzburg site. Dr. Goff concluded that there were between 48 and 58 acres of wetlands on the site, presenting his findings in the form of a report and a map. Upset by the report, Mr. Rapanos ordered Dr. Goff to destroy both the report and map, as well as all references to Mr. Rapa-nos in Dr. Goffs files. However, Dr. Goff was unwilling to do so. Mr. Rapanos stated he would “destroy” Dr. Goff if he did not comply, claiming that he would do away with the report and bulldoze the site himself, regardless of Dr. Goffs findings. In April 1989, workers began leveling the ground, filling in low spots, clearing brush, removing stumps, moving dirt, and dumping sand to cover most of the wetland vegetation. This activity caused Dr. Goff to note that the site now looked “like nothing more than a beach.” In August 1989 the state attempted to inspect the Salzburg site, but was denied access. Three months later, authorities from the state returned, armed with a search warrant. In 1991, a state representative returned to the Salzburg site, noting that the site had been “tiled” to drain subsurface water. When Mr. Rapanos refused to comply with an administrative compliance order issued by the Environmental Protection Agency (“EPA”) (requiring him to immediately cease his filling of the Salzburg site), the EPA referred the matter to the Department of Justice. II. The Hines Road Site The Defendants undertook to expand drains, build roads, and fill the wetlands at the Hines Road site. However, in July 1992, the state issued a cease and desist letter to stop the ongoing activity. Mr. Rapanos did not reply to this letter. Thereafter, the state conducted an examination of the site pursuant to a search warrant in June 1994. In June 1997, the state returned to the site and noted that fill had been added to certain areas since the 1994 search. Accordingly, the EPA issued an administrative compliance order. The EPA alleges that Mr. Rapanos did not comply with this order. III. The Pine River Site Mr. Rapanos also hired contractors at the Pine River site to construct ditches, spread dirt and sand, construct roads, and clear vegetation. The state sent Mr. Ra-panos a cease and desist order after an official observed that portions of the wetlands had been filled. The EPA issued an administrative compliance order in September 1997 after Mr. Rapanos refused to comply with the cease and desist order. The EPA alleges that Mr. Rapanos also did not comply with the administrative order. IV.The Criminal Proceedings Criminal charges were brought simultaneously with the instant civil action. In July 1994, the district court declared a mistrial in Mr. Rapanos’ criminal trial. The trial was moved to Flint, Michigan and, on March 7, 1995, the jury in the second trial returned a guilty verdict on two counts. United States v. Rapanos, 895 F.Supp. 165, 166 (E.D.Mich.1995). Following trial, the district court granted Rapanos’ motion for a new trial, finding that the court had improperly allowed the United States to pursue a line of questioning that was prejudicial to the defendant. Id. at 169-70. This court, however, determined that the line of questioning was not improper and reversed the district court’s grant of a new trial and remanded for sentencing. United States v. Rapanos, 115 F.3d 367, 374 (6th Cir.1997). The district court sentenced Rapanos to three years probation and ordered him to pay a $185,000 fine. On appeal, this court affirmed the conviction but remanded for resentencing. United States v. Rapanos, 235 F.3d 256, 261 (6th Cir.2000). The Supreme Court granted Rapanos’ request for a writ of certiorari, vacating and remanding this court’s order in light of Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (“SWANCC”). Rapanos v. United States, 533 U.S. 913, 121 S.Ct. 2518, 150 L.Ed.2d 691 (2001). Following remand from the Supreme Court, this court remanded the case to the district court for further consideration. United States v. Rapanos, 16 Fed.Appx. 345 (6th Cir.2001). On remand, the district court set aside the conviction, finding that the United States lacked jurisdiction in the wake of the Supreme Court’s ruling in SWANCC. United States v. Rapanos, 190 F.Supp.2d 1011 (E.D.Mich.2002). On appeal, this court reversed the order of the district court, reinstated the previous conviction and remanded to the district court for resentencing. United States v. Rapanos, 339 F.3d 447, 454 (6th Cir.2003). A panel of this court determined that, despite the Supreme Court’s decision in SWANCC, the United States retained jurisdiction over the wetlands at issue by virtue of the CWA. Recently, the Supreme Court denied Rapanos’ petition for a writ of certiorari. Rapanos v. United States, - U.S. -, 124 S.Ct. 1875, 158 L.Ed.2d 467 (2004). V. The Civil Proceedings The United States initiated this civil action in February 1994, confining its scope to the Salzburg site and naming only Mr. Rapanos as a defendant. In June 1996, the United States added Mrs. Rapanos to the complaint, as well as Prodo, Inc., a company owned by Mr. Rapanos. In February 1998, the United States amended its complaint to add allegations concerning the Hines Road and Pine River sites. Pine River Bluffs Estates was also added as a defendant. Following a 13-day bench trial, the district court concluded that Rapanos had filled 22 of 28 acres of protected wetlands at the Salzburg site, 17 of 64 acres of protected wetlands at the Hines Road site, and 15 of 49 acres of protected wetlands at the Pine River site. The district court concluded that the government had established that 54 of the filled acres fit the three parameters for wetlands, i.e., vegetation, soils, and hydrology. In addition, the court found that the United States did not meet its burden regarding the existence of wetlands at the Freeland and Mapleton sites. The district court entered these findings and conclusions on March 22, 2000. STANDARD OF REVIEW Following a bench trial, this court reviews the district court’s findings of fact for clear error and reviews its conclusions of law de novo. Pledger v. United States, 236 F.3d 315, 320 (6th Cir.2000). Factual determinations of a trial court are not clearly erroneous unless we are “left with the definite and firm conviction that a mistake has been committed.” Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504. DISCUSSION On appeal, Rapanos argues that the district court erred when it (1) held that the disturbed wetlands were adjacent wetlands because they had a surface connection to waters of the United States; (2) failed to make subsidiary findings to support its conclusion that the Salzburg, Hines Road, and Pine River sites had a hydrological connection to navigable waters; (3) allowed plaintiffs expert Dr. Willard to testify; (4) failed to consider Michigan’s definition of “wetland”; (5) collaterally estopped Rapanos from denying liability at the Salzburg site; and (6) relied on Dr. Willard’s testimony to determine the extent of unauthorized filling. I. The CWA In 1972, Congress reacted to the, problem of water pollution by enacting the CWA. The CWA is viewed by some as the federal government’s main weapon in its effort to protect wetlands. David Dornak, A New Generation is Teeing Off: Is Tiger Woods Making Divots on Environmentally Sound Golf Courses?, 23 Colum. J. Envtl. L. 299, 324 (1998). Section 404 of the CWA requires landowners to obtain permits from the Army Corps of Engineers (“Corps”) before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985); see also 33 U.S.C. § 1344. “Navigable waters” are defined as “waters of the United States, including territorial seas.” 33 U.S.C. § 1362(7). The Supreme Court and this court have noted that “Congress chose to define waters covered by the Act broadly” in the CWA. Riverside Bayview, 474 U.S. at 133, 106 S.Ct. 455; Rapanos, 339 F.3d at 450-51. Determining the precise boundary of which waters are covered by the CWA has been difficult. It is well-settled that the CWA covers more than what has come to be known as “navigable in fact waters,” i.e., waters that can be navigated in the traditional sense. See id. at 451. As the Supreme Court has noted, CWA jurisdiction extends beyond traditionally navigable waters because economic activities affecting interstate commerce are susceptible to “congressional regulation under the Commerce Clause irrespective of whether navigation, or, indeed, water, is involved.” Kaiser Aetna v. United States, 444 U.S. 164, 174, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979). The CWA’s broad reach, extending beyond traditionally navigable waters, however, does not extend to all waters. The Code of Federal Regulations contains the Corps’ interpretation of which waters are properly considered “waters of the United States.” 33 C.F.R. § 328.3. In the present case, the district court relied on the Corps’ exercise of jurisdiction over “wetlands adjacent’ to traditional navigable waters” as supporting CWA jurisdiction for the Defendants’ lands. Id. at § 328.3(a)(7). It found that the wetlands were adjacent to tributaries of traditional navigable waters. The Corps asserts jurisdiction over such waters pursuant to the CWA. Id. at § § 328.3(a)(5), 328.3(a)(7). Determining which wetlands are considered “adjacent to” traditional navigable waters or their tributaries has proved to be a complication in defining CWA jurisdiction. The Code of Federal Regulations states,that “adjacent” means “bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands.’ ” 33 C.F.R. § 328.3(c). In order to invoke federal jurisdiction the wetlands must bear some connection to navigable waters or interstate commerce. Determining how much of a connection is necessary has proven difficult. Unfortunately, the two leading- Supreme Court cases on the reach of the CWA have done little to clear the muddied waters of CWA jurisdiction. A. Riverside Bayview Riverside Bayview Homes owned 80 acres of low-lying, marshy land near the shores of Lake St. Clair in Macomb County, Michigan. It began filling part of the land with the intention of constructing a housing development on the site. The Corps determined that the land was an “adjacent wetland,” thus falling under the ambit of the CWA. The district court determined that the land on the site below 575.5 feet above sea level was a wetland requiring the issuance of a permit before it could be filled. Riverside Bayview, 474 U.S. at 125, 106 S.Ct. 455. This court reversed the district court, concluding that adjacent wetlands only existed when the land was flooded by adjacent navigable waters at a frequency sufficient to support the growth of aquatic vegetation. United States v. Riverside Bayview Homes, Inc., 729 F.2d 391 (6th Cir.1984). This court was largely motivated by Fifth Amendment takings concerns, concluding that the CWA must be read narrowly to avoid improper condemnation by the government. A unanimous Supreme Court, however, held that the Tucker Act, 28 U.S.C. § 1491, provides the owners of condemned land with the right of compensation and thus concluded that this court was not justified in reading the CWA’s jurisdiction so narrowly. Riverside Bayview, 474 U.S. at 128, 106 S.Ct. 455. Having disposed of the Fifth Amendment issue, the Court concluded that “[t]he plain language of [33 C.F.R. § 323.2(c)] refutes the Court of Appeals’ conclusion that inundation or ‘frequent flooding’ by the adjacent body of water is a sine qua non of a wetland under the regulation.” Id. at 129, 106 S.Ct. 455. Next, the Court addressed the issue of which waters could be considered “adjacent to navigable waters.” In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs^ — in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of “waters” is far from obvious. Id. at 132,106 S.Ct. 455. The Court concluded that to protect against pollution “at its source,” Congress sought to define coverage of the CWA broadly. Id. at 133, 106 S.Ct. 455. It noted that even wetlands that are not connected to adjacent bodies of water and are not regularly inundated by flooding may still have a connection to navigable waters because such water can drain into navigable waters. Id. at 134, 106 S.Ct. 455. These adjacent bodies of water can bring pollution to the navigable waters, resulting in possibly disastrous effects on the habitat and food chain for the native aquatic species. See id. at 134-35, 106 S.Ct. 455. Thus, the Court wrote that the Corps has concluded that wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water.... [W]e cannot say that the Corps’ judgment on these matters is unreasonable, and we therefore conclude that a definition of “waters of the United States” encompassing all wetlands adjacent to other bodies of water over which the Corps has jurisdiction is a permissible interpretation of the [CWA]. Id. at 135,106 S.Ct. 455. B. SWANCC After upholding a broad view of the CWA’s jurisdictional reach in Riverside Bayview, a divided Supreme Court invalidated one of the Corps’ jurisdictional regulations in SWANCC. The regulation at issue, known as “the Migratory Bird Rule,” extended the definition of “waters of the United States” to include isolated waters that were used as habitat by migratory birds or endangered species. Final Rule for Regulatory Programs of the Corps of Engineers, 51 Fed.Reg. 41206, 41217 (Nov. 13, 1986) (previously codified at 33 C.F.R. § 328.3). The disputed land was a 533 acre parcel straddling the Cook and Kane County lines in northern Illinois. The land was owned by the Solid Waste Agency of Northern Cook County, a consortium of 23 Chicago cities that sought to develop a garbage disposal site. SWANCC, 531 U.S. at 162-63, 121 S.Ct. 675. The Corps initially determined that it had no jurisdiction over the land because it did not contain any wetlands and did not support “vegetation typically adapted for life in saturated soil conditions.” Id. at 164, 121 S.Ct. 675 (citing 33 C.F.R. § 328.3(b)). However, after learning that several migratory birds were observed at the site, the Corps asserted jurisdiction under the Migratory Bird Rule. Id. The Seventh Circuit concluded that the federal government had the authority to use the Migratory Bird Rule, relying on the cumulative impact doctrine to conclude that, in toto, the impact on migratory birds from disturbing wholly intrastate, non-navigable waters had a substantial impact on interstate commerce. Solid Waste Agency of N. Cook County v. United States Army Corps of Engineers, 191 F.3d 845, 850 (7th Cir.1999). A majority of the Supreme Court disagreed, however, holding that the Migratory Bird Rule was not supported by Congress’ intent in passing the CWA and thus concluding that it was unnecessary to determine whether the Migratory Bird Rule fell within the broadest reach of Congress’ commerce powers. SWANCC, 531 U.S. at 167,121 S.Ct. 675. In doing so, the Court first reaffirmed the holding in Riverside Bayview, pointing out that in Riverside Bayvieiv we noted that the term “navigable” is of “limited import” and that Congress evidenced its intent to regulate at least some waters that would not be deemed “navigable” under the classical understanding of that term. But our holding was based in large measure upon Congress’ unequivocal acquiescence to, and approval of, the Corps’ regulations interpreting the CWA to cover wetlands adjacent to navigable waters. We found that Congress’ concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands inseparably bound up with the “waters” of the United States. It was the significant nexus between the wetlands and “navigable waters” that informed our reading of the CWA in Riverside Bayview Homes. Indeed, we did not express any opinion on the question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to open bodies of water. In order to rule for respondents here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the test of the statute will not allow this. SWANCC, 531 U.S. at 167-68, 121 S.Ct. 675 (citations omitted) (emphasis in original). The Court also refused to extend Chevron deference to the Corps’ interpretation of its authority under the CWA. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). It reasoned that such deference was inappropriate where the Corps was infringing upon a power usually reserved to the states, i.e., the authority to regulate land and water use. SWANCC, 531 U.S. at 172-74, 121 S.Ct. 675. Therefore, the Court concluded that Congress had not envisioned extending CWA jurisdiction to isolated, intrastate, non-navigable “ponds” simply by virtue of the fact that they were occasionally the home for migratory birds, despite the Corps’ contrary interpretation of its authority. Id. at 171-72,121 S.Ct. 675. C. Putting Riverside Bayview and SWANCC in Context The Court in SWANCC noted that even reading the CWA through a restrictive lens demonstrates that Congress “wanted to include all waters adjacent to ‘navigable waters,’ such as nonnavigable tributaries and streams” in its definition of “waters of the United States.” SWANCC, 531 U.S. at 171, 121 S.Ct. 675. Lower courts have disagreed over the extent to which SWANCC limited Riverside Bayview’s holding. SWANCC only specifically addressed the Migratory Bird Rule, and in fact specifically held that it was not overruling any aspect of Riverside Bayview, yet its language has been seen by some as justification for a wide-ranging reduction of the CWA’s jurisdiction. A minority of courts have done so, reading SWANCC broadly to limit the CWA to navigable waters and non-navigable waters that directly abut navigable waters. In re Needham, 354 F.3d 340, 345-46 (5th Cir.2003); FD & P Enterprises, Inc. v. U.S. Army Corps of Engineers, 239 F.Supp.2d 509, 516 (D.N.J.2003). Conversely, the majority of courts have interpreted SWANCC narrowly to hold that while the CWA does not reach isolated waters having no connection with navigable waters, it does reach inland waters that share a hydrological connection with navigable waters. Rapanos, 339 F.3d at 453; Treacy v. Newdunn Assoc., LLP, 344 F.3d 407, 415 (4th Cir.2003); United States v. Deaton, 332 F.3d 698, 702 (4th Cir.2003), cert. denied, - U.S. -, 124 S.Ct. 1874, 158 L.Ed.2d 466 (2004); United States v. Rueth Dev. Co., 335 F.3d 598, 604 (7th Cir.2003), cert. denied, - U.S. -, 124 S.Ct. 835, 157 L.Ed.2d 699 (2003); Headwaters v. Talent Irrigation District, 243 F.3d 526, 533-34 (9th Cir.2001); Carabell v. United States Army Corps of Engineers, 257 F.Supp.2d 917, 930 (E.D.Mich. 2003); United States v. Interstate Gen. Co., 152 F.Supp.2d 843, 847 (D.Md.2001). The Fifth Circuit has adopted the more expansive reading of SWANCC and thus the more limited interpretation of the CWA’s jurisdiction. Needham, 354 F.3d at 345-46. The Needham court disagreed that water exhibiting a hydrological connection with “navigable water” should be considered part of the “waters of the United States,” instead finding that the water must be “truly adjacent to navigable waters,” or at least have a “significant measure of proximity” to navigable waters. Id. at 345, 347, n. 12. In reaching this conclusion, the Fifth Circuit relied heavily on SWANCC, disagreeing with holdings from the Fourth, Seventh, and Ninth Circuits, as well as this court, that have adopted a limited interpretation of SWANCC. Rapanos, 339 F.3d at 453 (finding that the SWANCC court merely invalidated the Migratory Bird Rule and did not deal with the Corps’ “adjacent waters” jurisdiction); Treacy, 344 F.3d at 415 (noting that SWANCC reaffirmed the holding in Riverside Bayview and did not abridge the Corps’ authority over “adjacent waters”); Deaton, 332 F.3d at 702 (holding that SWANCC did not disavow any of the Corps’ interpretations of the CWA, save for the Migratory Bird Rule); Rueth Dev. Co., 335 F.3d at 604 (“it is clear that SWANCC did not affect the law regarding the government’s alternative asserted basis for jurisdiction adjacency under [the “adjacent water” rule]. The Corps’ adjacency jurisdiction is well-established; it was upheld by the Supreme Court in [Riverside Bayview], and was reaffirmed in SWANCC”); Headwaters, 243 F.3d at 533-34 (holding that SWANCC did not impact its conclusion that waters flowing into navigable waters are within the CWA’s jurisdiction); Carabell, 257 F.Supp.2d at 930 (concluding that SWANCC’s holding was narrow and did not require a body of water to directly abut navigable water in order to fall under the jurisdiction of the CWA); Interstate Gen. Co., 152 F.Supp.2d at 847 (“[b]ecause the Supreme Court only reviewed 33 CFR § 328.3(a)(3), it would be improper for this Court to extend the SWANCC Court’s ruling any further than they clearly intended”); but see FD & P Enterprises, 239 F.Supp.2d at 516 (“it is the view of this court that the ‘hydrological connection’ test is no longer the valid mode of analysis”). In Rapanos’ criminal trial, a panel of this court adopted the limited reading of SWANCC criticized in Needham. Adopting the Fourth Circuit’s reasoning in Dea-ton, this court held that because we find the Fourth Circuit’s reasoning persuasive, we disagree with the broad interpretation of [SWANCC] taken by the district court in this case and, instead, agree with Deaton. Although the DSWANCC] opinion limits the application of the Clean Water Act, the Court did not go as far as Rapanos argues, restricting the Act’s coverage to only wetlands directly abutting navigable water. Instead, the [SWANCC ] Court, in a narrow holding, invalidated the Migratory Bird Rule as exceeding the authority granted to the [Corps] by the [CWA], because it found “nothing approaching a clear statement from Congress that it intended [the CWA] to reach an abandoned sand and gravel pit.” • Rapanos, 339 F.3d at 453 (citations omitted). This court further adopted the holding in Deaton, that “adjacent waterways” include any branch of a tributary system that eventually flows into a navigable body of water. Rapanos, 339 F.3d at 452-53. This court concluded that the wetlands were adjacent because “[a]ny contamination of the Rapanos wetlands could affect the Drain, which, in turn could affect navigable-in-fact waters.” Id. Thus, the primary difference between the conclusion reached by the Fifth Circuit and that reached by the Fourth, Sixth, Seventh, and Ninth Circuits, concerns the “adjacency” requirement. The Fifth Circuit requires that the non-navigable water be “truly adjacent to navigable waters” in order to qualify for CWA jurisdiction. The majority of courts, including this one, however, construe Riverside Bayview and SWANCC to hold that, while a hydrological connection between the non-navigable and navigable waters is required, there is no “direct abutment” requirement. What is required for CWA jurisdiction over “adjacent waters,” however, is a “significant nexus between the wetlands and ‘navigable waters,’ ” SWANCC, 531 U.S. at 167, 121 S.Ct. 675, which can be satisfied by the presence of ¿ hydrological connection. Rapanos, 339 F.3d at 453; see also Deaton, 332 F.3d at 711-12 (CWA jurisdiction extends to those waters adjacent to any branch of a tributary system that eventually flows into a. navigable water, because these waters effect the water quality of navigable waters and thus there is a “substantial nexus” between the tributaries and the navigable waters); Headwaters, 243 F.3d at 533 (“Because the canals receive water from natural streams and lakes, and divert water to streams and creeks, they are connected as tributaries to other ‘waters of the United States’ ”). Waters sharing a hydrological connection are interconnected, sharing a symbiotic relationship. As Congress acknowledged when passing the CWA, “[w]ater moves in hydrological cycles and it is essential that discharge of pollutants be controlled at the source.” Rapanos, 339 F.3d at 451 (citing S.Rep. No. 92-414, at 77 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3742). Unlike the absence of Congressional support for the Migratory Bird Rule discussed in SWANCC, Congress clearly envisioned that CWA jurisdiction would extend to bodies of water exhibiting a hydrological connection to traditional navigable waters. As this court previously recognized [i]n Riverside Bayview the Supreme Court concluded that the Corps regulation extending jurisdiction to adjacent wetlands was a reasonable interpretation in part because of what [SWANCC ] described as “the significant nexus between the wetlands and ‘navigable waters.’ ” There is also a nexus between a navigable waterway and its nonnaviga-ble tributaries.... This nexus, in light of the “breadth of congressional concern for protection of water quality and aquatic ecosystems,” is sufficient to allow the Corps to determine reasonably that its jurisdiction over the whole tributary system of any navigable waterway is warranted. The regulation, as the Corps reads it, reflects a reasonable interpretation of the Clean Water Act. Rapanos, 339 F.3d at 452 (quoting Deaton, 332 F.3d at 712). D. Chevron Deference The doctrine of “administrative deference,” also known as “Chevron deference,” provides an alternative ground for affirming the Corps’ authority over waters adjacent to tributaries of navigable waters. When Congress delegates authority to enforce a statute to a governmental agency, while leaving some ambiguity in how the agency is to enforce the statute, courts should assume that Congress impliedly delegated the authority to interpret the ambiguity to the agency charged with administering the statute. Chevron, 467 U.S. at 843-45, 104 S.Ct. 2778. The agency is thus in the position to “fill the gaps” left by Congress. Unless the agency’s interpretation of the statute is “arbitrary, unreasonable, or manifestly contrary to the statute,” the agency interpretation should be applied. Id. at 843-44, 104 S.Ct. 2778. In Chevron, a unanimous Supreme Court pointed out that deferring to agency interpretations, rather than requiring judicial interpretation, served the interests of democracy, noting that Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities. When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — -who have no constituency— have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: Our Constitution vests such responsibilities in the political branches. Id. at 865-66, 104 S.Ct. 2778 (citation omitted). Before according deference to agency interpretations, a federal court “need not find that [the agency’s interpretation] is the only permissible construction ... but only that [its] understanding of this ... statute is a sufficiently rational one to preclude a court from substituting its judgment for that of [the agency.]” Chem. Mfrs. Ass’n v. Natural Resources Defense Council, 470. U.S. 116, 125, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985) (citation omitted). In SWANCC the Supreme Court refused to accord Chevron deference to the Corps’ Migratory Bird Rule. Noting that “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress,” the Court concluded that the Migratory Bird Rule infringed on the state’s “traditional and primary power over land and water use,” and thus was not entitled to Chevron deference. Id. at 173-74, 121 S.Ct. 675 (citation omitted). In Riverside Bayview, however, the Supreme Court accorded Chevron deference to the Corps’ conclusion that “waters of the United States” included wetlands adjacent to navigable waters. 474 U.S. at 134-35, 106 S.Ct. 455. As the SWANCC Court recognized, deference was appropriate in Riverside Bayview given the significant nexus between the adjacent waters and navigable waters that was not present’ in the “nonnaviga-ble, isolated, intrastate ponds” at issue in SWANCC whose only connection to interstate commerce was the fact' that they were occasionally home to- migratory birds. In Deaton, after conducting a thorough review of the CWA, the Fourth Circuit accorded Chevron deference to the Corps’ construction of the CWA that granted it authority over “distant, nonnavigable tributaries of navigable waters.” Deaton, 332 F.3d at 709. In Rapanos, this court agreed with the Fourth Circuit’s holding in Deaton. Rapanos, 339 F.3d at 452-53. Because waters containing a hydrological connection to tributaries of navigable waters bear a “significant nexus” to navigable waters, as in Riverside Bayview and unlike the waters in SWANCC, Chevron deference is appropriate. The Corps’ interpretation of “waters of the United States” to include those waters adjacent to tributaries of navigable waters, that share a hydrological connection with those tributaries, is neither “arbitrary, unreasonable, or manifestly contrary to the statute.” Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. E. Application to this Case ■ The Defendants argue that this court should impose a “direct abutment” requirement to CWA jurisdiction over non-navigable water. In response, the United States asserts that the Defendants waived a defense based on SWANCC by not raising it before the district court. It claims that, while the Defendants argued that the CWA does not extend to “isolated waters,” they did not make the current argument that the CWA does not extend to “wetlands adjacent to nonnavigable tributaries.” However, the United States is splitting hairs, as this is simply part and parcel of the “isolated waters” argument the Defendants made before the district court. Alternatively, the Defendants’ current claim falls under the exceptions to the traditional rule that appellate courts will not entertain arguments raised for the first time on appeal because this argument involves a question of law and the factual record has been fully developed below. Taft Broadcasting Co. v. United States, 929 F.2d 240, 244 (6th Cir.1991). As discussed supra, Rapanos’ argument regarding SWANCC has previously been adjudicated by this court, in a published disposition, and its conclusion is entitled to stare decisis. See Rapanos, 339 F.3d at 453. Indeed, Rapanos acknowledged as much during oral arguments. Further, this court’s reasoning in that case is supported by the majority of circuits, by the policy of deferring to agency interpretations, and by a careful examination of the relevant Supreme Court cases. There is no “direct abutment” requirement in order to invoke CWA jurisdiction. Non-navigable waters must have a hydrological connection or some other “significant nexus” to traditional navigable waters in order to invoke CWA jurisdiction. Unlike the isolated waters in SWANCC, these waters are interconnected with traditional navigable waters. Next, the Defendants’ argument that the district court did not find that there was a “significant nexus” between the wetlands and the navigable waters is similarly misplaced. ■ The district court found that all three sites contained a hydrological connection to navigable waters and thus fell within the jurisdiction of the CWA. Specifically, the district court found that the Salzburg wetlands have a surface water connection to tributaries of the Kawkawlin River which, in turn, flows into the Saginaw River and ultimately into Lake Huron. Dr. Willard testified that the wetlands at the Salzburg site had a surface connection to the waters of the United States. In 1994, Hal Harrington verified that a surface water connection exists between the Salzburg site and Saginaw Bay. Further, Hal Harrington, Chief of the Michigan Department of Environmental Quality’s Great Lakes Submerged Lands Unit, testified that there was a surface water connection between the Salzburg site and the Saginaw Bay. In 1994 he visited the site. During this visit, he observed carp spawning in a roadside stream on the north side of the property. He followed the flow of the water and “each road crossing with this surface water connection to Saginaw where it entered ... the river entering Saginaw Bay north of the Bay City State Park [the Kawkawlin River].” An expert for Rapanos, Dr. Straw, testified that water left the site through the Hop-pier Drain, which drains into the Hop-pier Creek. This drain is immediately north of the Salzburg site. Regarding the Hines Road site, the district court noted that Dr. Willard testified that the wetlands at the Hines Road site have a surface water connection to the Rose Drain which, in turn, has a surface water connection to the Tittabawassee River. Dr. Willard also described the nature of the surface water connection between the wetlands at Hines Road and the Rose Drain. In October 1994, Dodgers and Zbiciak ... demonstrated that the interior wetlands have a hydrologic connection with the Rose Drain. In addition, Mr. Zbiciak, a representative from the State of Michigan, testified that the wetlands drained into the Rose Drain, which runs along the western side of the site and flows down to the Tittabawassee River. A report by Charlie Dodgers, another representative of the State of Michigan, indicated that the site inspection revealed five locations where water moved into the Rose Drain, as he testified at trial. Rapanos claims that ditches he dug in 1992 were the only cause of a surface water connection to the Rose drain. However, Charlie Dodgers testified that surface runoff occurred naturally “at least seasonally,” and one of the United States’ exhibits demonstrated surface connections to the Rose drain as early as 1975. Regarding the Pine River site, the district court noted that “Dr. Willard testified that the wetlands at the Pine River site have a surface water connection to the Pine River, which flows into Lake Huron.” The maps, utilized by the United States showed that areas of wetlands, on the site were in close proximity to the Pine River (although they did not delineate the specific paths these wetlands would have taken to drain into the river). Although the Defendants claim that the evidence did not support these conclusions, the record demonstrates that there were hydrological connections between all three sites and corresponding adjacent tributaries of navigable waters. See Rapanos, 339 F.3d at 453 (“Because the wetlands are adjacent to the Drain and there exists a hydrological connection among the wetlands, the Drain, and the Kawkawlin River, we find an ample nexus to establish jurisdiction.”). Moreover, the Defendants are certainly unable to show that the district court’s conclusions were clearly erroneous. Pledger, 236 F.3d at 320. The district court was in a far superior position to judge the complicated facts of this case after presiding over the lengthy proceedings and the bench trial. Further, [t]he rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much. As the Court has stated in a different context, the trial on the merits should be “the ‘main event’ ... rather than a “tryout on the road.” ” Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). For these reasons, review of factual findings under the clearly-erroneous standard — with its deference to the trier of fact — is the rule, not the exception. Anderson, 470 U.S. at 574-75, 105 S.Ct. 1504. The testimony and evidence in the record support the district court’s findings. Its conclusions of fact are entitled to substantial deference and they are not “clearly erroneous.” The Defendants also argue that the district court was required to make “subsidiary findings” to support its conclusion that the sites had a hydrological connection to navigable waters, citing Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th Cir.1966). To the contrary, the district court’s opinion, along with the expert testimony regarding the hydrological connection, provides a sufficient basis to examine the district court’s findings and supports the determination that its conclusions were not clearly erroneous. II. Dr. Willard’s Testimony At trial, the United States offered the expert testimony of Dr. Daniel E. Willard. The district court found Dr. Willard to be “eminently qualified” as an expert in wetlands and concluded that his testimony was “highly credible.” The Defendants argue that this testimony should have been stricken, or the trial delayed, because Dr. Willard relied upon a supplemental expert witness report that was not disclosed until after trial was underway. Dr. Willard revised the map he prepared for trial delineating the areas of wetland on the Rapanos’ land. After examining the soil analysis from the Defendants’ expert and aerial photography, Dr. Willard revised his wetlands maps, removing some of the areas he had previously marked as wetlands. He did so to be “as conservative and as accurate as [he] could.” The new maps were produced in conjunction with Will Bowman, a soils scientist with the Natural Resources Conservation Service of the U.S. Department of Agriculture, and were known as the “Bowman Supplemental Soils Maps.” Accompanying the new maps was a five-page supplemental report. The Defendants contend that this late report “made a mockery of the Federal Rules of Civil Procedure,” specifically complaining that the disclosure rules specified in Rule 26 were violated. They claim that the district court’s denial of their motion for Rule 37 sanctions, based on the failure to disclose, requires remand for a new trial. The United States points out that the new maps were based on analysis from the Defendants’ experts contained in the Pierce report. The version of Rule 26(e) in effect at the time of the trial provided that a party was required to supplement its disclosures “if the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process.” The data used in the supplemental report and maps was known to the Defendants, as it was produced by their experts. Because Dr. Willard’s previous expert report and maps were available to the Defendants, it seems unlikely that simply incorporating some of the data from the Defendants’ own experts, which reduced the computation of wetland areas, qualifies under Rule 26’s mandatory disclosure requirements. Even if we assume that the United States was required to disclose the supplemental results, exclusion of the report and testimony was not the only remedy available to the district court. Rule 37(c) provides sanctions for the failure to comply with Rule 26, including exclusion of evidence. This court reviews for abuse of discretion a district court’s ruling on a motion to exclude an expert witness as a sanction under Rule 37 of the Federal Rules of Civil Procedure. Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir.2003); Toth v. Grand Trunk Railroad, 306 F.3d 335, 344 (6th Cir.2002). Rule 37 provides that the trial judge should not exclude expert testimony unless the failure to disclose is both unjustified and harmful. Roberts, 325 F.3d at 782; Fed. R.Civ. P. 37(c)(1) 2000 advisory committee’s notes (“Even if the failure [to disclose] was not substantially justified, a party should be allowed to use the material that was not disclosed if the lack of earlier notice was harmless”). The non-disclosing party bears the burden of proving that a disclosure was harmless. Roberts, 325 F.3d at 782. The aggrieved party, however, must show substantial prejudice before this court will grant a new trial based on an alleged Rule 26(e) disclosure error. Toth, 306 F.3d at 344. In this case, the failure to disclose seems harmless as the Defendants were aware of the data used in the supplemental reports and the revised reports reduced the amount of wetlands found to exist at the sites. Thus, the only changes made between the original disclosed report and the supplemental report were beneficial to the Defendants. In summary, no “substantial prejudice” has been demonstrated. Even if a trial court determines that Rule 26 has been violated, Rule 37 does not mandate exclusion of evidence. Roberts, 325 F.3d at 783-84 (Rule 37(c)(1) “provides several remedies to a district judge who is faced with violations of the mandatory-disclosure provisions of Rule 26. The provision on sanctions explicitly states in pertinent part that ‘in lieu of this sanction [of total exclusion], the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions.’ ”). The district court, after noting its concern with the failure to disclose the supplemental report, concluded that the defense should be accommodated and [I] will do so in several ways, [at] the option totally of the defense. Number one is that at the conclusion of the Government’s expert witness case, I would certainly give the defense as much reasonable time as they need in order to consult with their experts. I would be more than happy to ... so that your expert can be prepared without having to order transcripts and so forth, have him or her on a phone conference so that they can hear all that testimony ... so that you can be prepared and also take some time and recess for as long as you need in order to consult with your expert for cross-examination and if it entails taking whatever time it takes reasonably to be prepared. But I think that we’re here to seek the truth, and that’s — that’s the whole idea of having a trial is to seek the truth. It’s not ... to ambush and everybody should be prepared .... But I have to, I think, listen to the testimony to see what really transpired here with the understanding that we’re here to seek the truth and that I will give the defense as much opportunity as they need since it’s a bench trial and we can take time, and it’s important, but not that important that you shouldn’t have an opportunity to be able to use your right to cross-examine, to seek the truth. The district court properly considered the role of the trial, the rights of the parties, and the considerations of the Federal Rules of Civil Procedure in this side-bar. The Federal Rules of Civil Procedure are not so monolithic as to demand a single outcome for the widely varying circumstances encountered in discovery and trial. They properly recognize the discretion of the trial court to fashion appropriate remedies, taking into account the facts of the case. This case languished for more than five years between the filing of the Complaint and the 13-day bench trial. It involved complicated factual and legal issues. It was within the district court’s discretion to allow the evidence and it significantly allayed any fears of undue surprise by granting the Defendants “as long 'as they needed” to review Dr. Willard’s supplemental report so that they could discuss it with their experts. Finally, Dr. Willard notified the Defendants during his deposition a few weeks before trial that he was in the process of amending his findings based upon the Pierce report. The Defendants apparently did not object to this until Dr. Willard testified and they never made a motion pursuant to Rule 37(a)(2)(A) to compel discovery. In Roberts, this court noted that such inaction by the “surprised” party suggests that the failure to disclose should be considered harmless or justified. Roberts, 325 F.3d at 783. Considering all of the circumstances in this complicated case, the district court’s failure to exclude Dr. Willard’s supplemental reports cannot be said to be an “abuse of discretion” and its solution for the disclosure problem was entirely appropriate. III. The Michigan Wetlands Program The CWA permits states to develop their1 own water protection' permit program to enforce the provisions of the CWA. 33 U.S.C. § 1344(g). This partial delegation provision “gives a state the authority to render a comprehensive federal/state wetland permit decision with the federal government playing the role of the overseer in the consideration of permit applications.” Michigan Peat v. United States Envtl. Prot. Agency, 175 F.3d 422, 424 (6th Cir.1999). Michigan, along with New Jersey, has established such a permitting program. 40 C.F.R. §§ 233.70-233.71. The Defendants claim that Michigan’s permitting regulations contain slight variations to the federal statutes. In particular, they cite Michigan’s Geomare-Anderson Wetlands Protection Act, which has language defining wetlands that differ somewhat from the Corps’ regulations. Mich. Comp. Laws § 324.30301(p). Those wetlands that are not contiguous to the Great Lakes, an inland lake or pond, or a river or stream, and less than five acres in size, are not subject to Michigan’s Wetlands Protection Act, unless it is certified that the area’s preservation is necessary to protect the natural resources of the state. Id. § 324.30301(p)(ii). This five-acre jurisdictional limitation is not found in the CWA or the Code of Federal Regulations. The Defendants argue that it was error for the district court not to make findings of fact regarding the Michigan statute’s five-acre limitation, instead focusing solely on the federal regulations. While the CWA grants states the authority to establish their own clean water regulations, Congress clearly intended for any state program to be at least as broad as the federal program. See 33 U.S.C. § 1344(h)(l)(A)-(B). The Geo-mare-Anderson Wetlands Protection Act is a state statute separate from the CWA. The CWA’s provision for state involvement in issuing CWA permits does not delegate authority to the state to alter application of the CWA and the Corps specifically notes that “[a]ny approved State Program shall, at all times, be conducted in accordance with the requirements of the Act and of this part. While States may impose more stringent requirements, they may not impose any less stringent requirements for any purpose.” 40 C.F.R. § 233.1(d). Moreover, contrary to the Appellant’s assertions, permitting a state to issue CWA permits does not foreclose all federal issuance of CWA permits. See Michigan Peat, 175 F.3d at 427 (a case in which the Corps had ultimate authority to issue permit when state permit did not address the concerns of the federal government); 33 U.S.C. § 1344(g)(1) (Corps still issues permits for waters used in interstate commerce, including adjacent wetlands). The CWA explicitly provides that, notwithstanding the delegation of authority to the states, nothing in Section 1344 is meant to restrict the Corps’ authority to enforce the CWA. 33 U.S.C. § 1344(n). This court has recognized that Section 1344(n) allows the federal government to pursue an action against an offender regardless of whether the state has instituted its own enforcement program, noting that under “the CWA ... the responsible federal agency retains oversight power to ensure compliance with federal standards.” S. Ohio Coal Co. v. Office of Surface Mining, Reclamation and Enforcement, 20 F.3d 1418, 1427-28 (6th Cir.1994); see also United States v. City of Rock Island, 182 F.Supp.2d 690, 693-94 (C.D.Ill.2001); United States v. Town of Lowell, 637 F.Supp. 254, 257 (N.D.Ind.1985). The CWA does not contain any language suggesting that state implementation of the CWA is “in lieu of”-federal enforcement and thus any delegation of authority to the state in the CWA does not end a citizen’s responsibility to abide by the federal laws and regulations. Cf. United States v. City of Youngstown, 109 F.Supp.2d 739, 741 (N.D.Ohio 2000). In short, there is nothing in the CWA to suggest that by allowing Michigan to enforce portions of the CWA, the Corps was delegating the authority to the state to determine the limitations on CWA jurisdiction. Michigan does not gain the authority to alter the CWA’s federal jurisdiction merely by virtue of the fact that it is entitled to administer some portions of the act. In fact, the statute and the accompanying regulations make it clear that state enforcement programs cannot act to weaken the CWA. Finally, it should be noted that the Corps retains the ultimate authority to deny a CWA permit, even if Michigan is inclined to grant one under its delegation of authority. Michigan’s Administration of Section 404 at 2 (available at http://www.deq.state.mi.us/documents/deq-lwm-wetlands-404admin.pdf); see also Michigan Peat, 175 F.3d at 427 (Michigan failed to issue a permit satisfying the federal government’s reservations so the Corps retained the sole authority to authorize the issuance of a permit). In certifying Michigan’s 404 permitting scheme, Michigan’s Attorney General wrote that [t]he Water Resources Commission Act governing discharge of pollutants into water of this state includes within its ambit all waters of the State of Michigan. It is, of course, clear that the ... Wetlands Act exclude from their purview certain lakes having an area of less than 5 acres. Even this problem is, in fact, of no practical matter for a number of reasons. First, it is quite conceivable that a lake under 5 acres would have an affect on interstate commerce so as to imbue it with the distinction of being “water of the United States” and thus subject to the federal permit program. Thus, Michigan’s permitting program properly recognized that a site not falling within the ambit of Michigan’s state program could still be within the jurisdiction of the federal program. IV. Collateral Estoppel The district court found that Mr. Rapa-nos should be collaterally estopped from denying liability at the Salzburg site based on the outcome in the criminal case. Both parties note the confusion from relying upon collateral estoppel in this case because (1) the “Salzburg site” referenced in the criminal trial is not completely analogous to the Salzburg site in this case and (2) when the district court entered its findings of fact in 2000, Rapanos had been convicted in his trial and sentenced, but his appeal was pending, yet when the district court entered its final judgment in February 2003, Rapanos’ conviction had been vacated by the criminal trial court and the United States’ appeal to this court was pending. The United States notes the difficulty inherent in relying upon collateral estoppel when an appeal is pending. Regardless, the district court’s conclusion regarding collateral estoppel was not necessary for its finding that the Defendants were responsible for CWA violations at the Salzburg site. As discussed supra, the district court concluded that the Defendants had discharged fill into the Salz-burg site and that the Salzburg site was subject to CWA jurisdiction. A judge may rely upon multiple alternative, but independent rationales for his decision. See Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 909-10 (6th Cir.2001) (discussing the effects on collateral estoppel when a decision is based upon two alternative, but independent rationales). In this case, it is unnecessary to determine whether collateral estoppel was appropriate because the district court provided alternate rationales for its findings. V. The Extent of Unauthorized Filling Finally, the Defendants contend that substantial evidence did not support the district court’s finding that 54 acres of wetlands were illegally filled. They claim that some of the fill used in the district court’s calculation was “incidental fallback.” The district court concluded that the illegal fill was substantial (covering 54 acres) and not the result of incidental fallback after examining the evidence and hearing the relevant testimony. This conclusion is supported by the evidence and is not clearly erroneous. CONCLUSION We AFFIRM the judgment of the district court. . The land at issue in the criminal trial was the Salzburg site. The Salzburg site in the criminal trial is somewhat different than the Salzburg site involved in this proceeding. . On January 10, 2003, after the Supreme Court overturned the “Migratory Bird Rule” as an excessive extension of jurisdiction under the CWA in SWA/7CC, the district court amended its findings to remove all references to the "Migratory Bird Rule” as a basis for federal jurisdiction. . In Rapanos' criminal case, this court held that the evidence demonstrated that "the wetlands on Rapanos’s land are adjacent to the Labozinski Drain ...” and noted that contamination of that drain "could affect navigable-in-fact waters.” Rapanos, 339 F.3d at 453 (discussing a slightly different parcel of land). The Labozinski Drain discussed in the criminal case drains into the Hoppler Drain.

Michigan Peat v. United States Environmental Protection Agency

OPINION SILER, Circuit Judge. Plaintiff, Michigan Peat, a division of Bay-Houston Towing Co., filed a declaratory action against defendants, the United States of America, the United States Environmental Protection Agency (“EPA”), the Regional Administrator of Region V of the EPA (“Region V Administrator”), the State of Michigan, the Michigan Department of Environmental Quality (“MI-DE Q”), and the Director of the MIDEQ (“Director”), generally seeking a finding that defendants (1) acted contrary to the regulations and statutory law that govern the unified Clean Water Act (“CWA”) Section 404 program, and (2) violated Michigan Peat’s constitutional rights. The district court dismissed the action against the federal defendants for lack of subject-matter jurisdiction and dismissed the action against the state defendants on grounds that the suit was barred by the Eleventh Amendment. For the following reasons, we AFFIRM the dismissal of the action against the state defendants and REVERSE the dismissal of the action against the federal defendants. BACKGROUND Statutory Framework The CWA was enacted “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). It prohibits the discharge of any pollutant into the navigable waters of the United States except when authorized by a permit or exception spelled out in the Act. See 33 U.S.C. § 1311(a). Wetland areas are considered navigable waters for purposes of applying the Act. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). Section 404 of the CWA authorizes the Secretary of the Army, acting through the United States Army Corps of Engineers (“Corps”), to issue permits allowing the release of dredged and fill matter into the waterways subject to the terms and procedures set forth in the CWA. See 33 U.S.C. § 1344(a). The CWA empowers the EPA to authorize a unified wetlands permitting program which gives a state the authority to render a comprehensive federal/state wetland permit decision with the federal government playing the role of the overseer in the consideration of permit applications. See 33 U.S.C. §§ 1344(g)-(m); 40 C.F.R. §§ 233.10-233.16, 233.53. In short, the scheme provides applicants with “one stop shopping” for a wetland permit. Under the Section 404 program, the EPA retains full enforcement authority. See 33 U.S.C. § 1344(n). To date, only Michigan and New Jersey have been approved to operate the Section 404 scheme. See 40 C.F.R. §§ 233.70, 233.71. Michigan has been operating its program for 13 years, currently through the MIDEQ. See 40 C.F.R. § 233.70. In order to obtain a permit to engage in activity within a wetland in Michigan, an applicant must proceed through the prescribed permit process. See 40 C.F.R. § 233.30. A brief outline of the steps in the application process follows: 1.An applicant must file an application with the Director of the MIDEQ. 2. Once the application is deemed complete, the MIDEQ must issue a public notice announcing the opportunity to request a public hearing. a. The minimum time for public notice is 30 days during which interested parties may express their views concerning the application. b. Any interested person may request a public hearing, which will be held at the MIDEQ’s discretion. 3. The MIDEQ must promptly send the EPA a copy of the application. 4. Within 10 days of its receipt of the application, the EPA must forward the application to the Corps, the United States Fish & Wildlife (“USFW”), and the National Management Forestry Service (“NMFS”). a. These agencies must advise the EPA of their desire to comment on the application within 15 days of their receipt of the application. b. If these agencies desire to comment, they must submit their comments to the EPA within 50 days of their receipt of the application. 5. Within 30 days of its receipt of the application, the EPA must indicate to the MIDEQ in writing whether it will comment on the application. a. If the EPA declines to comment, the MIDEQ may issue a permit after the close of the public comment period upon (1) reviewing the application for compliance with designated environmental criteria, and (2) considering all comments received. The MIDEQ’s determinations regarding each application must be in writing and the basis thereof must be outlined. 6. Within 90 days of its receipt of the application, the EPA must provide its written comments and issue objections to the permit request. a. If the EPA timely objects, the State shall not issue the proposed permit unless it modifies the permit in accordance with the EPA’s comments. b. If the State does not satisfy the EPA’s objections or deny the permit, authority to process the Section 404 permit is transferred to the Corps. c. In cases where the EPA objects to the issuance of a permit, within 90 days after the propoundment of any objections by the EPA and after discussions with the Director of the MIDEQ, the EPA may withdraw its objections and a final permit decision may issue. d. If the EPA’s objections are not timely, the State may not issue a permit, but must forward the application to the Corps. 7. Based on whether 6(a), (b), (c) or (d) occurs, a permit may or may not issue. See 33 U.S.C. § 13440); 40 C.F.R. §§ 233.30-53. The Section 404 scheme does not usurp the state’s authority to issue a permit under state law. Facts Michigan Peat engages in business activities which include the extraction of peat. It owns and controls two noncontiguous parcels of land in Minden, Sanilac County, Michigan, referred to as Minden North and Minden South and situated within a wetland area known as the Minden Bog. The Minden North parcel is approximately 2,000 acres and the Minden South parcel comprises approximately 819 acres. Since 1958, Michigan Peat has extracted peat from a portion of the Minden North site. In 1991, Michigan Peat filed a wetland permit application under the Section 404 program which would authorize it to discharge dredged or fill materials and to conduct related activities at the Minden tracts. Midway through the application process, the State of Michigan requested that Michigan Peat place its then incomplete application on hold and develop an environmental site assessment (“ESA”). Michigan Peat complied; it developed an ESA from 1992-1994. In September 1994, Michigan Peat renewed its permit application to expand its operations to Minden South and to the unopened portions of Minden North. Specifically, Michigan Peat requested (1) a definition concerning the extent of the peat mining areas which were opened prior to October 1, 1980, (2) an after-the-fact authorization for areas where peat mining was initiated after October 1, 1980, and (3) authorization to expand the peat removal operations into an additional 1,792 acres of previously un-mined wetlands. Thereafter, the EPA reviewed Michigan Peat’s application and on October 6, 1994 notified the MIDEQ Section 404 Director that it intended to comment. The EPA forwarded its written comments, as well as those of the Corps and the USFW, to the MIDEQ on December 23, 1994. The EPA objected to the permit application which sought permission to expand mining from 951 to all 2,819 acres of the facility. Michigan Peat responded to the EPA’s objections. The MIDEQ and the EPA discussed the latter’s objections and created a revised draft permit. With its concerns addressed by the new draft permit, on March 21, 1995 the EPA withdrew its objections. Thereafter, the MIDEQ tendered a proposed permit to Michigan Peat along with a letter which outlined the proposed permit. The letter read in part: Approximately 749 acres of the bog [Minden North] ... were impacted prior to October 1, 1980 and therefore do not fall under [our] jurisdiction. Approximately 202 acres of the bog [Minden North] have been impacted from October 1, 1980 to the present.... [A]n after the fact permit can be issued for the 202-acre area if the applicant agrees to accept all conditions shown on the attached permit. Please be advised that failure to accept the permit leaves the company with no authorization to extract peat within the areas opened since October 1,1980. Attached you will find a modified permit for continuation of peat mining in areas defined in the paragraph above. This permit is not valid until it is signed by the permittee. The applicant is requested to fully review the limitations (conditions) and terms of the permit. Upon agreeing to accept and comply with all limitations (conditions) and terms of the permit, the applicant must sign, date, and return it to this office. The signed permit must be received by this office no later than 15 days from the date of this letter. [T]he portion of your application proposing expansion of the peat removal operation into the unmined area of the Minden Bog [to wit — the remainder of Minden North, approximately 1049 acres, and the entire Minden South parcel, approximately 819 acres] is hereby denied. The permit also set forth which lands Michigan Peat could impact and outlined the limitations (conditions) imposed on Michigan Peat upon acceptance of the proposed permit. Just above the signature line, the permit read: “This permit shall become valid on the date of signature by the permittee. Upon signing by the per-mittee, a copy of the signed permit must be returned to the [MIDEQ].” Michigan Peat did not sign and return the tendered permit. Rather, Michigan Peat decided to accept Part I of the decision, but to contest Parts II and III in two different forums. Pursuant to Michigan’s Administrative Procedures Act, MICH. COMP. LAWS § 24.201 et seq. (“APA”), Michigan Peat initiated a state administrative appeal of Part II of the permit, the after-the-fact permit subject to conditions. Part II of the permit contained several conditions unacceptable to Michigan Peat, to wit — (1) a requirement that Michigan Peat place land in a conservation easement in order to utilize the permit, (2) a complete waiver requirement, and (3) an indemnification requirement for the benefit of the State of Michigan. Concurrently, Michigan Peat filed an action against the MIDEQ in the Michigan Court of Claims asserting federal and state takings claims based on Part III of the permit decision, the complete prohibition against peat harvesting on approximately 2,000 acres of Michigan Peat’s property. Shortly after the state suit was filed, the parties entered a joint stipulation, which allowed Michigan Peat to continue operating on the 951 acres of the Minden facility that the MIDEQ had authorized in Part I of its proposed permit. On June 6, 1997, the MIDEQ Director issued Michigan Peat a state-only permit which granted Michigan Peat authorization under all applicable state wetland laws to extract peat on 2,819 acres of the company’s Minden parcels, subject to certain restrictions. The permit stated that it modified the March 21, 1995 permit decision by allowing the expansion of peat extraction into all previously unmined portions of Minden North and Minden South. The permit concluded with the following caveat: ISSUANCE OF THIS PERMIT DOES NOT AUTHORIZE ANY WORK UNDER THE AUTHORITY OF THE FEDERAL CLEAN WATER ACT. Any work initiated on this project without required § 404 approval may be considered a violation of Federal Law. For further information, contact the United States Environmental Protection Agency, Region 5. The cover letter which accompanied the state permit suggested that Michigan Peat contact the Corps for federal authorization. On June 18, 1997, the EPA wrote the MIDEQ (with a copy to Michigan Peat) in response to the issuance of the state permit. The EPA observed that the state permit differed greatly from the proposed Section 404 permit, which it contended had been rejected by Michigan Peat by its refusal to sign and return it and by its dual challenges to it and thus had never become effective. Additionally, the EPA articulated that it had objected to earlier proposals to authorize certain activities encompassed in the new state permit and reiterated its previously-stated objections. Finally, the EPA concluded that because the MIDEQ had failed to issue a final permit which satisfied the EPA’s objections, authority to process Michigan Peat’s permit application rested with the Corps by operation of law. On June 23, 1997, the Corps advised Michigan Peat that it would handle the Section 404 permitting procedure with regard to the Minden parcels and would begin its process upon receipt of a complete application. Course of Proceedings Prior to the issuance of the state-only permit, on May 16, 1997, Michigan Peat filed for declaratory relief in federal court specifically seeking a determination that: (1)Michigan Peat’s conduct fully complies with the Section 404 program for the State of Michigan; (2) Michigan Peat’s permit process, including the appellate and takings remedies pursued by Michigan Peat fully comply with and are a part of the Section 404 program; (3) the federal government is bound by the March 1995 permit decision; (4) a state court order be entitled to full faith and credit; (5) the EPA is barred by estoppel from modifying Michigan’s approved permit program and circumventing the permit process; (6) the EPA’s express threats to circumvent the CWA and its promulgated regulations including its demand that Michigan Peat stay or dismiss its constitutional and statutory takings claims, constitute denial of Michigan Peat’s procedural and substantive due process rights under the U.S. Constitution; (7) the EPA’s effort to modify the program and circumvent the permit process constitutes an impairment of contract in violation of Article I, section 10, clause 1 of the U.S. Constitution; (8) Michigan Peat’s harvesting activities are exempt from regulation under Michigan’s Section 404 program; (9) the disparate treatment of Michigan Peat under the delegated program constitutes a violation of the equal protection clause of the U.S. Constitution; and (10) the state-only permit does not modify the 1995 permit decision and does not strip Michigan Peat of its appellate rights and remedies under the Section 404 program. Subsequently, the district court dismissed the claims asserted against the state defendants based on their Eleventh Amendment immunity, and dismissed the claims asserted against the federal defendants for lack of subject-matter jurisdiction over suits for pre-enforcement relief. DISCUSSION The district court erred by dismissing Michigan Peat’s action against the federal defendants. We review questions of subject-matter jurisdiction de novo. See Friends of the Crystal River v. Untied States Envtl. Protection Agency, 35 F.3d 1073, 1077 (6th Cir.1994). Michigan Peat argues that the issuance of the March 21, 1995 permit was a final agency action and therefore subject to judicial review. On the other hand, the federal defendants contend that the issuance of the proposed permit was not a final agency action and therefore not subject to judicial review. Michigan Peat correctly cites Friends of the Crystal River, a case involving the CWA Section 404 program in Michigan. In that case, this court recognized the difference between challenges to final agency actions and challenges to pre-enforcement actions and stated that the latter are not subject to judicial review while the former are subject to judicial review. Id. at 1077-78. The federal defendants’ reliance on Southern Ohio Coal Co. v. Office of Surface Mining, Reclamation, and Enforcement, 20 F.3d 1418, 1426-27 (6th Cir.1994), is misplaced. In that case, this circuit followed the lead of the Fourth and Seventh circuits which previously found that “district courts lack jurisdiction to review compliance orders prior to the commencement of enforcement proceedings.” Id. (citing Southern Pines Assocs. v. United States, 912 F.2d 713, 716 (4th Cir.1990), and Hoffman Group Inc. v. Envtl. Protection Agency, 902 F.2d 567, 569 (7th Cir.1990)). Southern Ohio Coal Co. involved an emergency situation constituting a violation of an existing Section 402 permit. Plaintiff in that case challenged the EPA’s pre-enforcement emergency response activity, not a final agency action. The outcome of this issue turns on whether the EPA committed a final agency action. In the case at bar, the federal defendants timely voiced their objections throughout the application process, but ultimately withdrew them and agreed to the proposed 1995 permit that the MIDEQ sent to Michigan Peat. While it is true that the 1995 permit specifically stated that it was not final or valid until signed and accepted by the permittee and returned to the MIDEQ, the logical conclusion is that the EPA’s action was final. Statutorily, there was nothing left for the EPA to do once it signed off on the proposed permit. Moreover, if Michigan Peat did sign the permit it would have waived the appellate remedies it is pursuing. Therefore, the district court erred in finding that it did not have subject-matter jurisdiction over the final agency action. The district court did not eiT by dismissing Michigan Peat’s action against the state defendants. We review questions involving the Eleventh Amendment de novo as they are issues of law. See Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833, 836 (6th Cir.1997). The district court correctly found that the Eleventh Amendment shields Michigan and the MIDEQ from Michigan Peat’s claims. First, Congress has not abrogated Michigan’s immunity. See Franks v. Kentucky Sch. for the Deaf, 142 F.3d 360, 363 (6th Cir.1998) (holding that the only remaining authority under which Congress can abrogate Eleventh Amendment immunity is section 5 of the Fourteenth Amendment). Clearly, Congress has not attempted to abrogate the states’ Eleventh Amendment Immunity by enacting the CWA which was promulgated under Article I powers, not pursuant to the Fourteenth Amendment. Second, Michigan has not unequivocally waived its Eleventh Amendment immunity. See Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (requiring that such a waiver be “unequivocally expressed”). The fact that Michigan volunteered to involve itself in the Section 404 program does not constitute consent to be sued in federal court. As neither of the only two circumstances exist in which Eleventh Amendment immunity may be waived, the state defendants are protected by the Eleventh Amendment. See Thiokol Corp. v. Michigan Dep’t of Treasury, 987 F.2d 376, 381 (6th Cir.1993). The district court was correct in finding that Michigan Peat may not sue the Director of the MIDEQ under the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). While the district court followed Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 268-278, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997), an additional reason for shielding the Director from Michigan Peat’s claims in federal court is that Michigan Peat failed to allege that the Director has individually taken actions which constitute continuing violations of federal law. Accordingly, the district court’s dismissal of Michigan Peat’s claims against the state defendants based on the Eleventh Amendment immunity bar is AFFIRMED and the district court’s dismissal of Michigan Peat’s claims against the federal defendants based on the lack of subject-matter jurisdiction is REVERSED. This case is REMANDED for further proceedings in accordance with this opinion. . In the most simplistic terms, the Section 404 program administered by a state "suspends” the federal program in that particular state because the state's own program is environmentally sound. See 33 U.S.C. §§ 1344(g)(1), 1344(h)(2)(A). The Section 404 program does not allot all the power to the state or to the federal government, but rather the two share joint control. In essence, they are partners. . The EPA’s letter to the MIDEQ stated: The State's draft permit effectively addresses concerns previously raised by EPA and, on that basis, I am withdrawing our objection in accordance with provisions of 40 C.F.R. 233.50(j), on condition than the final permit not differ materially from this draft. If there are substantive changes to this draft decision by MDNR, we would need to review these changes to determine whether or not they are material to us. . The APA contains a provision that allows a business activity of a continuing nature operating under a previous license or charter to conlinue to operate while appealing a permit decision. See MICH. COMP. LAWS § 24.291. . The federal defendants, contend that Michigan Peat’s complaint and amended complaint are mooted by the EPA’s filing of an enforcement action against Michigan Peat in the United States District Court for the Eastern District of Michigan in June 1998. The federal defendants rely on the theory of "prudential mootness.’’ See Southern Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir.1997). Acceptance of defendants' argument turns on a finding that the enforcement action will resolve the claims raised by Michigan Peat in the underlying action. A review of Michigan Peat’s amended complaint indicates that this is simply not the case. Accordingly, this court finds that Michigan Peat’s appeal is not moot. Maybe the two cases can be consolidated on remand of this case. . The district court found that Michigan Peat "has not shown lack of a 'state forum available to vindicate federal interests’ and does not seek 'prospective relief based on federal violations' to vindicate a federal right.” While Michigan Peat contends that it seek^ to prevent future negative consequences flowing from legal recognition of the issuance of the state-only permit, in actuality, to cure the "future consequences” of the past act, the court must address the past act, to wit — the June 1997 permit.

United States v. Banks

EDMONDSON, Circuit Judge: Defendantr-Appellant Parks B. Banks appeals the district court’s holding that he violated the Clean Water Act (“CWA”) by discharging dredged material and fill onto wetlands. Because we find that the district court’s application of the CWA to Banks’ lands involved no clear error, we affirm. Facts and Background Section 404(a) of the CWA, 33 U.S.C. § 1344(a), authorizes the Secretary of the Army, acting through the Corps of Engineers (“Corps”), to issue permits for discharges of “dredged or fill material” into waters of the United States. The Corps may authorize these discharges through both individual permits and general, regulatory permits. In 1980, Banks purchased three lots — lots QQ, IQ and IR — in Big Pine Key in Florida. Banks began bulldozing lots IQ and IR and covering the lots with fill. Filling continued through approximately 1983, when Banks planted coconut trees on the filled lots and built a house on lot IQ. In March 1983, a Corps biologist informed Banks that parts of lots IQ and IR were wetlands and that discharges onto those areas were unlawful without a permit. In April 1983, the Corps issued a cease and desist order, threatening enforcement action if Banks continued his discharges. The order suggested that Banks apply for an individual permit to authorize retroactively his activities. Banks applied for this “after-the-fact” permit, but the Corps denied it in April 1984. The Corps also told Banks that, to avoid an enforcement action, he must negotiate a restoration plan with them. Banks continued to discharge fill without a permit and entered into no negotiations for a restoration plan. In 1988, Banks purchased lots 10 and IP, located just south of lots IQ and IR. From 1988 to 1991, Banks cleared vegetation from these new lots and prepared them for coconut farming. During this time, Banks also added fill to Lot QQ. In 1990, the Corps issued four cease and desist orders to Banks, accusing him of discharging fill into U.S. waters without a permit despite clear notice that his conduct was illegal. In December 1991, the government filed this suit against Banks, requesting that the district court enjoin future discharge of additional dredged or fill materials into the wetlands on the property, require Banks to restore the wetlands to their undisturbed condition before such unlawful discharge by removing the fill and otherwise implementing a restoration plan, and require Banks to pay an appropriate civil penalty. Banks appealed. Discussion I. Statute of Limitations Because the CWA does not specify a limitations period for enforcement actions under § 309, 33 U.S.C. § 1319, the default limitations provisions of 28 U.S.C. § 2462 apply to the government’s actions for civil fines or penalties. The parties dispute, however, the applicability of this statute of limitations to claims for equitable relief. Traditionally, “statutes of limitation are not controlling measures of equitable relief.” Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946). The plain language of section 2462 does not apply to equitable remedies. See North Carolina Wildlife Federation v. Woodbury, Case No. 87-584-CIV-5 (E.D.N.C.1989) (“The express terms of 28 U.S.C. section 2462 apply only to suits for the enforcement of a ‘civil fine, penalty or forfeiture.’”); United States v. Hobbs, 736 F.Supp. 1406, 1410 (ED.Va.1990) (“[Section 2462], by its own terms, has no bearing on suits in equity.”) Banks, however, urges us to adopt the “concurrent remedy rule,” which provides that “equity will withhold its relief ... where the applicable statute of limitations would bar the concurrent legal remedy.” Cope v. Anderson, 331 U.S. 461, 464, 67 S.Ct. 1340, 1341, 91 L.Ed. 1602 (1947). Banks relies chiefly on United States v. Windward Properties, Inc., 821 F.Supp. 690 (N.D.Ga.1993) to support his position. In Windward, the government sought equitable relief and civil penalties under section 309 of the CWA against the defendant for unpermitted discharge of dredged or fill materials into streams and adjacent wetlands. There, the court applied the concurrent remedy rule to bar the government’s claims for equitable relief under similar facts to this case. Id. at 693. The Windward court, however, did not address the well-established rule that “an action on behalf of the United States in its governmental capacity ... is subject to no time limitation, in the absence of congressional enactment clearly imposing it,” E.I. du Pont de Nemours & Co. v. Davis, 264 U.S. 456, 462, 44 S.Ct. 364, 366, 68 L.Ed. 788 (1924); United States v. Alvarado, 5 F.3d 1425, 1427 (11th Cir.1993), or the canon of statutory construction that “any statute of limitations sought to be applied against the United States ‘must receive a strict construction in favor of the Government.’ ” Alvarado, 5 F.3d at 1428. Incorporating these principles into the analysis, the properly constructed rule is that — absent a clear expression of Congress to the contrary — a statute of limitation does not apply to claims brought by the federal government in its sovereign capacity. The statute is enforced against the government only when the government is acting to vindicate private interests, not a sovereign or public interest. See United States v. Beebe, 127 U.S. 338, 347, 8 S.Ct. 1083, 1088, 32 L.Ed. 121 (1888). We conclude, therefore, that the concurrent remedy rule cannot properly be invoked against the government when it seeks equitable relief in its official enforcement capacity. Because Congress did not expressly indicate otherwise in the statutory language of section 2462, its provisions apply only to civil penalties; the government’s equitable claims against Banks are not barred. II. Jurisdictional Wetlands Banks also disputes that his lots qualify as jurisdictional wetlands. Wetlands are “those areas inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.” 33 C.F.R. § 328.3(b). A “wetland” under the CWA must meet the three criteria set out in the Corps’ 1987 Wetlands Delineation Manual: (1) a prevalence of hydrophytic plants, (2) hydrological conditions suited to such plants, and (3) the presence of hydric soils. Banks specifically contests the district court’s finding that his lots meet the hydric soil criterion; he cites the report of one of the government’s experts, Dr. Kruczynski, who was the Environmental Protection Agency’s leading regional wetlands biologist. In his report, Dr. Kruczynski concluded: “There is little or no soil at this location ... Caprock limestone wetlands are described in the [1989 Corps Delineation Manual] as a Problem Area ... and meet the criteria despite the lack of hydric soils when wetland hydrology is present.” In the light of other evidence presented at trial, however, we find that the district court’s conclusion about the hydric soil criterion was not clearly erroneous. First, Dr. Kruczynski explained in testimony that he did not spend a lot of time analyzing the soils on Banks’ lots for his report: the soils present were clearly hydric and the quantity of soil was not critical in the 1989 Manual, under which he was properly operating at the time. He also testified that he would have classified Banks’ lots as wetlands under the 1987 Manual. The government also presented other expert testimony about soil conditions on Banks’ land. For example, Dr. Wade Hurt, a soil scientist who formerly headed the Florida office of the U.S. Department of Agriculture’s Soil Conservation Service, testified that Banks’ lots, before his clearing and filling, would have been approximately 30 percent exposed rock, 15 percent non-hydric soils and 55 percent hydric soils. Dr. Ronald Jones, a professor of environmental sciences, and Curtis Kruer, a former Corps employee and biologist with special expertise in water level monitoring and aerial photography interpretation, also testified that Banks’ lands were wetlands under the 1987 Manual’s criteria. “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) (applying clearly erroneous standard to district court’s determination that respondent’s property met wetlands criteria). Sufficient plausible evidence supports the district court’s decision. III. Adjacent Wetlands The district court concluded that Banks’ lands were wetlands adjacent to navigable, tidal waters and therefore subject to the Corp’s regulatory jurisdiction. See 33 C.F.R. § 328.3(a)(1), (7) (1995). Banks disputes, however, that his lands are adjacent “wetlands.” Sitting as trier of fact, the district court found that “the Lots are part of a meandering wetland slough traversing Big Pine Key to Pine Channel on the west and Bogie Channel on the east.” Banks contests this finding, arguing that his lots — if wetlands at all — are isolated ones, because they are all at least one half mile from either of the navigable channels and have no hydrological relationship with these waters. Banks also contends that Watson Boulevard, a paved road, blocks water flow between Banks’ lots and Bogie Channel. We find that the district court’s determination that Banks’ lands were adjacent wetlands is not clearly erroneous. Experts testified that a hydrological connection exists between Banks’ lands and Pine and Bogie Channels. This connection was primarily through groundwater, but also occurred through surface water during storms. The court also found ecological adjacency based on the water connections and the fact that the lots serve as habitat for birds, fish, turtles, snakes and other wildlife. In United States v. Tilton, 705 F.2d 429 (11th Cir.1983), we addressed the issue of adjacency under similar facts. Finding the defendant’s swamp was an adjacent wetland, we relied on similar evidence to establish hydrological and ecological links with the nearby river. Also, in Tilton — as here — the hydrological connection flowed mainly through ground water; the surface water only connected at extreme high tides, such as in hurricanes. Id. at 431 n. 1. In the light of Tilton, the district court committed no clear error in finding Banks’ lands have the hydrological connection needed to qualify as adjacent wetlands. With regard to Watson Boulevard, man-made dikes or barriers separating wetlands from other waters of the United States do not defeat adjacency. 33 C.F.R. § 328.3(c). The district court therefore properly rejected Banks’ argument to the contrary. IV. Nationwide Permit 26 (NWP 26) Banks argues that even if his lands qualify as jurisdictional, adjacent wetlands, some of his discharge activities were permissible under NWP 26. The CWA provides that the Corps can issue general permits on a state, regional or nationwide basis under certain circumstances. 33 U.S.C. § 1344(e). From 1980 through 1994, the Corps has administered five versions of NWP 26, covering the discharge of material into navigable waters of the United States that are either (1) above the headwaters or (2) are other non-tidal waters that are not part of a surface tributary system to interstate waters or navigable waters. Banks’ position is that the Corps expanded the scope of non-tidal waters into which discharges were authorized by NWP 26 in its 1982 rule, but then contracted the scope in its 1991 rule. Banks contends that some of his discharge activity during the period from 1982 to 1992, therefore, was within the scope of the NWP 26 because the waters into which he discharged met the definition at that time of “non-tidal waters that are not part of a surface tributary system to interstate waters or navigable waters.” The government, however, disputes this contention, arguing that wetlands adjacent to navigable waters — such as Banks’ lots — have always been considered included in the term “surface tributary system,” and that the Corps has consistently construed and enforced this provision. The district court correctly rejected Banks’ argument that NWP 26 authorized some of his discharges, because Banks failed to carry his burden of persuasion on this issue. See United States v. Cumberland Farms of Conn., Inc., 826 F.2d 1151, 1157 (1st Cir.1987) (holding party seeking to qualify under nationwide permit had burden of persuading court of permit’s applicability); see also Riverside Irrigation District v. Andrews, 758 F.2d 508, 514 (10th Cir.1985). The Corp’s interpretation of its own regulations, not Banks’ interpretation, is entitled to substantial deference. Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333, 2341-42, 90 L.Ed.2d 921 (1986), reh’g denied, 478 U.S. 1031, 107 S.Ct. 11, 92 L.Ed.2d 766 (1986). In Banks’ particular case, the Corps consistently construed his acts to be outside the scope of NWP 26; as early as 1983, Banks was specifically told by the Corps that his activities required a permit. In 1984, the Corps denied Banks’ application for an after-the-fact permit for his discharge activities. Banks has not met his burden to show that any of his lots fell within the scope of NWP 26’s “other non-tidal waters that are not part of a surface tributary system to interstate waters or navigable waters” between 1982 and 1992. We, therefore, conclude that the statute of limitations does not bar the government’s claims for equitable relief in this case, and that the district court’s finding that Banks’ land constituted jurisdictional, adjacent wetlands was not clearly erroneous. We further hold that Banks has failed to demonstrate that some of his activities were permitted by NWP 26. The judgment of the district court is AFFIRMED. . From 1980 through 1988, Banks purchased five lots on Big Pine Key. Four of the lots — lots 10, IP, IQ and IR — are contiguous, while the fifth — lot QQ — is approximately one-fourth of a mile southeast of the other four lots. Pine Channel is to the west of the lots, and Bogie Channel is on the east. . In the light of the application of the statute of limitations to the government's claims for civil penalties, discussed below, the United States sought civil penalties in this case only for Banks' filling activities in 1989 and 1990. . Section 2462 provides in pertinent part: Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued. . The government argues that Banks waived his statute of limitations defense for equitable relief by failing to raise it in a responsive pleading as required by Fed.R.Civ.P. 8(c). It is true that Banks raised the statute of limitations issue on the equitable claims by motion the day the trial began, which would normally waive the defense. American National Bank of Jacksonville v. FDIC, 710 F.2d 1528, 1537 (11th Cir.1983). The government, however, neither objected nor responded to Banks' motion. Banks contends that the government, therefore, consented to litigate this issue under Fed.R.Civ.P. 15(b), which provides that "unpled issues which are tried with either express or implied consent of the parties are to be treated as if they were raised in the pleading.” Cioffe v. Morris, 676 F.2d 539, 541 (11th Cir.1982). The government did not expressly consent to litigate this matter; the sole question is whether the government impliedly consented by failing to object or respond. We believe that it did. "[I]mplied consent under Rule 15(b) will not be found if the [opposing party] will be prejudiced, that is, if the [opposing party] had no notice of the new issue, if [he] could have offered additional evidence in defense, or if the [opposing party] in some other way was denied a fair opportunity to defend.” Id. at 542. Here, the government was fully aware of Banks' position and simply chose not to respond to Banks' motion. We, therefore, believe that the government impliedly consented to the litigation of the statute of limitations issue for the equitable claims. Because, however, we conclude that the statute of limitations does not apply to claims for equitable relief brought by the government in its sovereign capacity, our conclusion ultimately affords Banks no relief. . The government in this case, contending that the statute of limitations does not apply to equitable claims, sought equitable relief only for Banks’ violations that occurred outside section 2462's limitations period. . In Federal Election Commission v. Williams, 104 F.3d 237 (9th Cir.1996), the Ninth Circuit applied section 2462 to bar the FEC's action for injunctive relief, citing to Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947). The Williams decision — not unlike the Windward opinion — failed to distinguish between the application of the statute of limitations to the United States in its private versus its sovereign capacity. No other circuit has addressed this issue. .Banks challenges the Corps’ use of the 1989 version of this Manual, which Congress ultimately banned. Banks argues that the 1989 Manual, which was used to evaluate some of his land, greatly expanded the lands that could be classified as wetlands by allowing certain land — such as caprock limestone — to qualify as regulatable wetlands despite its failure to satisfy all three criteria in the 1987 Manual. The district court, however, found that the evidence proved that Banks’ lands met all three of the 1987 Manual's criteria, rendering Banks' argument moot. Our focus is limited to whether, based on the evidence presented to the district court, its factual findings were clearly erroneous. . At the time of Dr. Kruczynski’s analysis. Congress had not yet banned the 1989 Manual. Dr. Kruczynski’s analysis was conducted with the 1989 Manual which, unlike the 1987 Manual, incorporates caprock limestone wetlands. . Adjacent is defined as "bordering, contiguous, or neighboring." 33 C.F.R. 328.3(c) (1995). . Because the district court did not err in characterizing Banks' lands part of one continuous wetland, Banks’ argument that his lands were outside the scope of regulation because they were adjacent to waters that were themselves wetlands, as described in 33 C.F.R. § 328.3(a)(7), also fails.

United States v. Johansen

HEANEY, Circuit Judge. In the early 1960s, the federal government purchased easements on the farmland tracts of Kerry Johansen and Michael Johansen (the Johansens) for the maintenance of waterfowl production areas. After two unusually wet years in North Dakota, the Johansens requested the United States Fish and Wildlife Service (FWS) to delineate the extent of its wetland easements. The FWS refused, arguing that any wetlands that develop during wet years are subject to the easements’ restrictions. Nevertheless, the Johansens proceeded to drain portions of their farmland tracts to contain the surface and subsurface water. The United States then charged the Johansens with unauthorized draining of wetlands in a Waterfowl Production Area, a violation of 16 U.S.C. § 668dd (1994). In response to a motion in limine by the United States Attorney, the United States District Court for North Dakota prohibited the Jo-hansens from arguing that the federal wetland easements covered only 105 acres on the three tracts and that more than that number of wetland acres remained intact after the draining. After entering a conditional guilty plea, the Johansens now appeal that order. We reverse. I. A. History of the Federal Conservation Program. In 1929, Congress enacted the Migratory Bird Conservation Act, 45 Stat. 1222, ch. 257 (1929) (codified as 16 U.S.C. § 715 et. seq. (1994)). Recognizing the importance of preserving potholes for migratory waterfowl, the Act authorized the Secretary of the Interior to acquire lands to be used for migratory bird sanctuaries. 16 U.S.C. § 715d. Acquisition was made subject to the consent of the state in which the land was located. 16 U.S.C. § 715f. The Migratory Bird Hunting and Conservation Stamp Act was passed in 1934 to fund the acquisition of bird sanctuaries. 48 Stat. 451 (1934) (codified as 16 U.S.C. § 718 et seq. (1994)). Subsequently, the conservation effort’s strategy shifted away from the creation of large bird sanctuaries toward the preservation of wetlands on private property. Accordingly, federal law was amended in 1958 to permit the acquisition of wetland easements on individual parcels which were designated ‘Waterfowl Production Areas.” Pub.L. 85-585, § 3, 72 Stat. 487 (1958) (codified as 16 U.S.C. § 718d(c) (1994)). The source of funding was later increased, but the acquisition of the wetland easements was conditioned on the consent of the governor of the state (as opposed to the state legislature as under the Migratory Bird Conservation Act). The Wetlands Act of 1961, Pub.L. 87-383, § 3, 75 Stat. 813 (codified as 16 U.S.C. § 715k-5 (1994)). From 1961 to 1977, the governors of North Dakota consented to the acquisition of easements covering 1.5 million acres of wetland. See North Dakota v. United States, 460 U.S. 300, 311, 103 S.Ct. 1095, 1102, 75 L.Ed.2d 77 (1983). These consents further specified the maximum acreage that could be acquired in each county of North Dakota. B. The Steele County Tracts. In the mid-1960s, as part of the Waterfowl Production Area Program, the FWS purchased easements on three tracts of land from the Johansens’ predecessors. These tracts, described as Steele County tracts 21X, 24X, and 30X, consist of two half sections (319.58 acres and 317.70 acres) and a half section plus eighty acres (395.98 acres), respectively. As with most wetland easement purchases, the FWS used a standardized wetland conveyance developed for the program. The conveyance instrument granted the United States “an easement or right of use for the maintenance of the land described below as a waterfowl production area in perpetuity....” As was standard practice prior to 1976, the conveyance then legally described the whole parcel. In exchange for the easement, the property owner was given $600 for each of the half-section parcels and $700 for tract 30X. The conditions imposed by the easement on the servient tenement are as follows: The parties of the first part ... agree to cooperate in the maintenance of the aforesaid lands as a waterfowl production area by not draining or permitting the draining, through the transfer of appurtenant water rights or otherwise, of any water including lakes, ponds, marshes, sloughs, swales, swamps, or potholes, now existing or reoccurring due to natural causes on the above-described tract, by ditching or any other means.... Along with the recorded easement conveyance, the FWS prepared an Easement Summary which provided information including the tract description, the tract acreage, the wetland acreage, and the cost of the wetland per acre. According to each of the summaries, the wetland acres purportedly purchased were thirty-three acres in both tract 21X and tract 24X and thirty-five acres in tract 30X (Summary Acreage). The FWS has subsequently published annual reports in which it continues to represent that it controls thirty-three, thirty-three, and thirty-five acres of wetland on the tracts in question. See, e.g., Annual Report of Lands Under Control of the U.S. Fish and Wildlife Service (Sept. 30, 1980) (Ex. D-154); U.S. Fish and Wildlife Service, Acreage Summary Record for Steele County Waterfowl Production Area (Ex. D-157). C. The Johansens. The spring of 1995 was a wet one in North Dakota. The Johansens, farmers in Steele County, North Dakota, were faced with the second consecutive wet year and farmland that could not support farm machinery due to the surface and subsurface water. Aware that their farmland tracts were burdened by wetland easements, Kerry Johansen wrote the FWS to explain his problem and to ask “what water [he could] contain to get back to [his] normal farming practices.” Letter from Kerry Johansen to Hoistad (Jan. 1, 1995) (Ex. D-120). In response, the FWS concurred that “your area has been hard hit in the last two years.... This particular tract of land has a high number of basins on it. This, I’m sure, combined with the high rain amounts has caused you some difficulty farming in the past year.” Letter from Hois-tad to Kerry Johansen (Mar. 17, 1995) (Ex. D-121). Despite its sympathy for the Johan-sens’ difficulty, however, the FWS concluded: “The only provisions of the easement that allow for drainage are when [there] are safety or health concerns involved. Another way of saying this is unless your roads or farmstead is in danger of being flooded, no drainage can take place.” Id. In spite of this admonition, the Johansens dug ditches on the tracts to contain the water. As a result of their ditching, the Johansens were charged with draining wetlands covered by FWS easements in violation of 16 U.S.C. § 668dd (1994). In their defense, the Johan-sens planned to introduce the Easement Summaries and proof that each parcel, after the draining, contained wetland acreage in excess of the acreage provided for in the Easement Summaries. The United States, in a motion in limine, sought to exclude the evidence as irrelevant, arguing that the Easement Summaries were not part of the recorded easement and that defense theories claiming any limitation of the wetland easements had been rejected by this court. Relying on this court’s decision in United States v. Vesterso, 828 F.2d 1234 (8th Cir.1987) (Heaney, J.), the district court held the defense was improper and excluded the proffered evidence. The Johansens then entered conditional guilty pleas, subject to the outcome of this appeal, from that pretrial order. II. The government’s prosecution of this case has been described by the Johansens as a shell game. We cannot disagree. The United States Attorney argues that prior decisions by this court have specifically interpreted the wetland easements to encompass all wetlands on the encumbered parcel. The government’s argument, however, fails to acknowledge the ramifications of both the intervening Supreme Court decision in North Dakota, in which the Court adopted a more restricted interpretation of the wetland easements, and the representations made by the Solicitor General during that litigation. The broad interpretation now advanced by the United States Attorney is not only inconsistent with the representations made by other federal officials, it would also raise serious questions with respect to limitations imposed by the easement program’s enabling statute. Moreover, the stringent posture assumed in this enforcement prosecution does not comport with the efforts toward a “cooperative and helpful relationship between North Dakota, its farmers and political subdivisions, and the U.S. Fish and Wildlife Service” which is fundamental to the success of conservation programs. See North Dakota and U.S. Fish and Wildlife Service Agreements 1 (July, 1993) (Ex. D-159). A. Interpretation of the Wetland Easements. In essence, this case revolves around the interpretation of the wetland easements purchased by the federal government. State law will generally govern the interpretation of a real property conveyance instrument, either through direct application or through the “borrowing” principles of federal law, so long as it is neither aberrant nor hostile to federal property rights. See United States v. Little Lake Misere Land Co., 412 U.S. 580, 591-96, 93 S.Ct. 2389, 2396-99, 37 L.Ed.2d 187 (1973); cf. United States v. Albrecht, 496 F.2d 906, 911 (8th Cir.1974). Under North Dakota law, while the principles of contract law guide the inquiry, see N.D. Cent.Code § 47-09-11 (1978); Royse v. Easter Seal Society for Crippled Children & Adults, Inc., 256 N.W.2d 542, 544 (N.D.1977), the “primary purpose in construing a deed is to ascertain and effectuate the intent of the grantor.” Malloy v. Boettcher, 334 N.W.2d 8, 9 (N.D.1983). This suit, as well as numerous other suits involving wetland easements, arises in large part because prior to 1976, the FWS described wetland easements by referring to the entire tract of land rather than to the particular area of the covered wetlands. Since 1976, the FWS has recorded a map locating the covered wetland acres as part of every easement document. However, as a consequence of the former practice and the fact that prairie potholes, by nature, are ill-defined and subject to fluctuation, there has been a considerable amount of confusion regarding what the earlier wetland easements actually covered. See, e.g., Albrecht, 496 F.2d 906; United States v. Seest, 631 F.2d 107 (8th Cir.1980); United States v. Welte, 635 F.Supp. 388 (D.N.D.1982), aff'd, 696 F.2d 999 (8th Cir.1982). The United States Attorney for North Dakota takes the position that all wetlands found on an encumbered tract at any given time are covered by the easement and cannot be drained in any fashion. In other words, there are no “uncovered wetlands” on the parcel described by the easement. The Jo-hansens, however, claim that the easements cover only a portion of their property and not every wetland that might develop during any given year. In support of their interpretation that only the potholes existing at the time of the easement conveyance are covered by the easement’s restrictions, the Johansens point to the easement document language limiting drainage of potholes “now existing or reoccurring due to natural causes on the above-entitled land.” Primarily, however, the Johansens rely on the Easement Summaries which indicate that thirty-three wetland acres were purchased on tracts 21X and 24X and thirty-five wetland acres were purchased on tract 30X. The United States Attorney rejects the Johansens’ reliance on the Easement Summaries for two reasons. First, the United States Attorney points out that the summary figures were not recorded as part of the easement document. This fact, however, is not necessarily preclusive. See Schulz v. Hauck, 312 N.W.2d 360, 363 (N.D.1981) (holding that use of unrecorded, extrinsic evidence is permissible to interpret ambiguous grant language). Second, the United States Attorney contends that these summaries do not evidence the parties’ intent, but were merely “used by government negotiators as a yardstick of the purchase price.” Appellee’s Br. at 10. The government’s interpretation is not unreasonable, given that the legal description of the easement includes the whole tract. More importantly, this interpretation has been given to the easements by this court in past decisions. See, e.g., Albrecht, 496 F.2d at 912 (holding that ditching encumbered parcel violated terms of easement); Seest, 631 F.2d at 108 (holding that ditching parcel, although not diminishing the surface water, altered the natural flow of surface and subsurface water, violating the terms of the easement); Welte, 635 F.Supp. at 389 (“Had the government obtained an easement on only 22 acres [the acreage identified in the Easement Summary], appellants would have a valid point. The government obtained its easement on all 160 acres [the entire parcel], however.”). Thus, at least as of the early 1980s, there was considerable case law to support the government’s position that the easements prevented drainage on any portion of the described parcel. B. The Impact of United States v. North Dakota. The interpretation given the easements by this court in the early 1980s was rejected by the Supreme Court. Starting in the 1970s, the cooperation that had marked the joint effort between the federal and state governments to provide waterfowl habitats began to break down. After North Dakota enacted a series of laws intended to restrain further federal purchase of wetlands, the United States brought suit seeking to have the laws declared invalid. One of the objections raised by North Dakota during the litigation was that the total area described by the wetland easements, 4,788,300 acres, exceeded the gubernatorial consents which had limited the FWS to 1.5 million wetland acres. This court held that the gubernatorial consents were not required for the acquisition of waterfowl production areas. United States v. North Dakota, 650 F.2d 911, 916 (8th Cir.1981), aff'd on other grounds, 460 U.S. 300, 103 S.Ct. 1095, 75 L.Ed.2d 77 (1983). The Supreme Court rejected that view, acknowledging that “Congress has conditioned any such acquisition upon the United States’ obtaining the consent of the Governor of the State in which the land is located.” 460 U.S. at 310 & n. 13, 103 S.Ct. at 1101 & n. 13. While conceding that the limitations imposed by the gubernatorial consent were applicable, the United States represented that it had not exceeded the maximum wetland acreage. In its brief to the Supreme Court, the United States contended: [W]hile the total gross area described in the easement documents is 4,788,300 acres, because the easement restrictions apply only to the wetlands acres North Dakota’s contention that the United States already has acquired more acreage than the gubernatorial approvals encompass is without merit. By contrast, since the United States obtained gubernatorial consent to acquire easements over 1,517,437 acres of wetlands and has only acquired easements over 764,522 wetland acres, it is entitled to acquire [ ] additional [ ] acres.... Brief for the United States at 19, North Dakota v. United States, 460 U.S. 300, 103 S.Ct. 1095, 75 L.Ed.2d 77 (1983) (No. 81-773) (citations omitted) (North Dakota Brief). The latter figure, 764,522, was based on the acreage figures provided in the Easement Summaries. In other words, for the purposes of that litigation, the United States contended that the wetland easement restrictions applied only to the thirty-three, thirty-three, and thirty-five acres on the Johansens’ tracts. The Supreme Court accepted the federal government’s interpretation of the easement restrictions: North Dakota next argues that the gubernatorial consents, if valid, have already been exhausted by acquisitions prior to 1977. This argument stems from the practice of including within each easement agreement the legal description of the entire parcel on which the wetlands are located, rather than merely the wetland areas to which the easement restrictions apply. If the entire parcels are counted toward the acreage permitted by the gubernatorial consents, the United States already has acquired nearly 4.8 million acres, far more than the 1.5 million acres authorized. The United States has conceded as much in its answers to North Dakota’s interrogatories. App. 49 (“The total acreage described in the permanent easements ... is 4,788,300 acres_”). As the easement agreements make clear, however, the restrictions apply only to wetland areas and not to the entire parcels.... The fact that the easement agreements include descriptions of much larger parcels does not change the acreage of the wetlands over which the easements have been acquired. North Dakota, 460 U.S. at 311 n. 14, 103 S.Ct. at 1102 n. 14. Although this interpretation of the easements, that the restrictions “apply only to wetland areas and not to the entire parcel,” seems clearly at odds with this court’s prior decisions holding the contrary, the United States Attorney contends there is no inconsistency: There is simply nothing inconsistent between the U.S. Fish and Wildlife Service conceding that only the wetlands within the larger tract [are] covered by the drainage limitations and therefore that only that acreage counted against the “county consents” and ... at the same time contending that all wetlands within a particular easement tract are subject to its limitations. Appellee’s Reply Br. at 3. What the United States Attorney fails to acknowledge, however, is that the Solicitor General’s brief did not claim that the United States had acquired an interest in all wetlands on the parcel, but rather explicitly stated that the United States “ha[d] only acquired easements over 764,522 wetland acres,” i.e., the Summary Acreage. North Dakota Brief at 19. The implication of the United States’ brief in North Dakota is clear: the United States acquired easements over thirty-three acres on tracts 21X and 24X and thirty-five acres on tract 30X. It is important to note, however, that although the Supreme Court generally accepted the federal government’s argument limiting the easement restrictions to the encumbered parcels’ wetlands, it did not explicitly limit the wetland easement to the Summary Acreage. The Court merely stated that “[t]he fact that the easement agreements include descriptions of much larger parcels does not change the acreage of the wetlands over which the easements have been acquired.” North Dakota, 460 U.S. at 311 n. 14, 103 S.Ct. at 1102 n. 14. Statements made by the Solicitor General in his North Dakota brief and the FWS response to interrogatories are not a binding statement of the rights of the United States. See Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 383-84, 68 S.Ct. 1, 2-3, 92 L.Ed. 10 (1947). C. Problems with a Fluctuating Easement. Although the Court’s language in North Dakota permits an interpretation of the easement to cover all wetlands on the encumbered tract rather than limiting the easements’ scope to the Summary Acreage, doing so would create a host of problems. Under this interpretation, the number of wetland acres subject to the easement restrictions would fluctuate with the amount of rainfall. Not only is this inconsistent with the FWS Annual Summaries of the number of wetland acres under its control and traditional norms of real property conveyance, see Restatement of Property § 451, cmt. m (1944) (requiring definiteness), it would prohibit ditching on the entire, legally-described parcel. According to the government’s theory, any action that would inhibit the collection of water in a particular depression would violate its interest in existing and future wetlands. Given that these properties are pocketed by depressions of various depths, however, any ditching will impact the formation of wetland. See Albrecht, 496 F.2d at 909 (“[A]n expert in water biology testified that the ditching had the same effect as a drought ... and that the usefulness of the [] land as a waterfowl production area had been ‘significantly reduced.’ ”). Thus, the wetland easements’ restrictions, as interpreted by the United States Attorney, would apply to the entire parcel. This was clearly and explicitly rejected by the Supreme Court in North Dakota. This interpretation also presents problems with respect to the gubernatorial-consent component of the program’s authorizing statute. If the easement restrictions expanded with the amount of wetland present on a parcel at any particular time, the acreage of federal wetlands counted against the gubernatorial limitation would fluctuate as well. This figure would also need to be kept current to ensure compliance with the gubernatorial consents, something that the federal government has been reluctant to do in the past. See Vesterso, 828 F.2d at 1242. The United States Attorney’s suggestion that the Easement Summary figures may be used to compile a total of wetland acreage to be applied against the gubernatorial consents, but need not relate to the potholes actually covered by the restrictions, Appellee’s Reply Br. at 2, can be rejected out of hand. Clearly, in order for the gubernatorial consent provision of the enabling statute to be meaningful, there must be a direct correlation between the figure of federal wetland acres applied against the consents and the actual acreage restricted by the wetland easements. Even were the federal government to assume the task of maintaining an accurate and current tally of the existing wetlands, that fluctuating figure could conceivably exceed the gubernatorial limitation during a wet year, thereby violating the terms of the easement program’s enabling statute. In its reply brief, the United States Attorney’s Office responds to this possibility as follows: In the unlikely event the State could prove that the total wetland acres under easement in a particular county, when at maximum fill, exceeded the gubernatorial consents previously given, such an assumption might give rise to a right to bring a declaratory judgment or contract action against the federal government. What such a suit might yield is unclear, but what is clear is that it would not void all easements taken in that county or confer upon either the State or the landowners the right to choose which wetlands within each easement the federal government gets to keep. Appellee’s Reply Br. at 4 (emphasis added). We decline to follow the “eross-that-bridge-when-you-get-to-it” approach espoused by the United States Attorney’s Office. Given the choice, we believe it more prudent to avoid this possibility by interpreting the easements’ scope in a manner that fixes the federal acreage counted against the gubernatorial consent limitation. Therefore, we hold that the federal wetland easements are limited to the acreage provided in the Easement Summaries. This approach has the additional advantage of consistency with prior representations by the federal government of its interest in the properties, including the FWS Annual Survey and the Solicitor General’s position in the North Dakota litigation. D. Posb-North Dakota Case Law. In its motion in limine to the district court, the United States Attorney argued that this court’s decision in United States v. Vesterso, 828 F.2d 1234 (8th Cir.1987), rejected limiting the federal wetland easements to the Summary Acreage. In Vesterso, this court considered a case in which a North Dakota county water board had undertaken two drainage projects on properties subject to federal wetland easements. Id. at 1237. Despite being advised of the federal easements by the state water commission, the county water board completed the projects without conferring with or notifying the FWS. Id. at 1238. In affirming the convictions, we wrote, “it is sufficient for the United States to prove beyond a reasonable doubt that identifiable wetlands were damaged and that those wetlands were within parcels subject to federal easements.” Id. at 1242. The United States Attorney interprets this language to mean that the drainage of any wetlands on a burdened parcel violates section 668dd. This language, however, must be understood within its context in the opinion: rejecting the defendants’ assertion that the federal government had not ensured compliance with the gubernatorial limitation by identifying all wetlands covered by the federal easements. Id. at 1241. In the same section, we wrote: Before the United States can prove a person damaged federal property as prohibited by section 668dd(c), it does not have to describe legally each wetland to which the restrictions apply and further determine whether the total wetland acreage exceeds the limits imposed by the gubernatorial consent for the county. Id. at 1242. In this context, our discussion is simply understood to mean that the government did not need to legally describe the confines of each covered wetland under the pre-1976 easements to ensure compliance with the gubernatorial consent limitation, a question already answered by the Supreme Court in North Dakota. The language in Vesterso regarding what the United States must prove is better understood to mean that the United States must prove beyond a reasonable doubt that identifiable, covered wetlands (as existing at the time of the easement’s conveyance and described in the Easement Summary) were damaged and that the defendant knew that the parcel was subject to a federal easement. See Vesterso, 828 F.2d at 1244 (holding that defendants, who knew that the parcel was encumbered by a wetland easement, cannot claim that they did not know a particular wetland was covered by the easement because such a lack of knowledge would be caused by “willful blindness.”). This meaning is made clearer later in Vesterso when we concluded: We realize that the federal wetland easements in North Dakota have generated controversy and, in some instances, frustration for landowners. We point out, however, that the State of North Dakota and landowners are not without recourse if the easements cause flooding, for example, which results from nonnatural obstructions to water flow. The prudent course in any event requires consultation with the Fish and Wildlife Service before undertaking drainage on parcels covered by easements. ... There is no evidence in the record indicating that [] cooperation would not have been forthcoming in this ease. Instead of seeking cooperation, the appellants acted on their own by digging a ditch approximately three feet deep and fifteen feet wide across the easement in clear violation of the Wildlife Refuge Act. Id. at 1245 (emphasis added). Having been so advised by this court, the Johansens sought cooperation from the FWS to contain the flooding that emersed their farmland. Unfortunately, the cooperation to which we alluded was not forthcoming. Our decision in United States v. Schoenborn, 860 F.2d 1448 (8th Cir.1988), reiterates this court’s revised interpretation of the wetland easements. In that case, we reviewed the district court’s finding that a Minnesota farmer had violated a wetland easement. Specifically, Schoenborn’s violations consisted of draining four basins (as potholes are known in Minnesota) and filling nine ditches. On review of each individual alleged violation, this court examined evidence that the specific potholes existed at the time of the easement conveyance, a clear departure from our prior practice focusing on any ditching of the burdened parcel, cf. Albrecht, 496 F.2d at 911, as well as the state of the basin at trial. Thus, Schoenbom implicitly acknowledged the limited scope of the wetland easements. E. The District Court’s Pretrial Order. In this case, the district court’s decision was predicated on a fundamental (albeit understandable) misinterpretation of this circuit’s case law with respect to the scope of federal wetland easements. Therefore, we review the district court’s pretrial order excluding evidence de novo. See United States v. Singer Mfg. Co., 374 U.S. 174, 192-93, 83 S.Ct. 1773, 1782-83, 10 L.Ed.2d 823 (1963). We hold that the United States’ wetland easements acquired title on the acreage specified in the Easement Summaries. Although the mens rea element of this crime is fulfilled by proof that the defendant knew the parcel was subject to a wetland easement, see Vesterso, 828 F.2d at 1244, the government must still prove that the defendant drained the Summary Acreage covered by the federal wetland easement. The converse is also true: a defendant must be permitted to introduce evidence proving that they did not drain the Summary Acreage. III. CONCLUSION The wetland acquisition program was conceived of as a partnership between the federal government, the states, and individual property owners. As with any partnership, success requires good faith and reasonability. Although the United States Attorney pays lip service to the program’s goal of co-existence between Waterfowl Production Areas and “normal farming practices,” the government ignores the obvious potential consequence of its interpretation: the reduction of cultivatable land on tract 21X by over sixteen percent would be a significant economic impediment to the continued viability of normal farming practices. It strikes this court as contrary to the program’s goal of reasonable cooperation to refuse a request to identify the scope of the federal government’s interest in a property and then prosecute the property owner for making his best efforts to contain surplus water to the protected federal wetlands. Therefore, we remand this case to the district court for action consistent with this opinion. . Much of the State of North Dakota, as well as parts of the Canadian Provinces of Manitoba, Saskatchewan, and Alberta, constitutes what marine biologists call the northeastern drift plain. As a prairie pothole region, each square mile of the drift plain is dotted by as many as seventy to eighty potholes, three to four feet deep, that retain water through July or August because of the soil’s poor drainage capacity. These geographical attributes are of particular importance to certain migratory waterfowl that prefer these potholes as a habitat to raise their young because they provide isolated protection and a source of aquatic food. . North Dakota, the state in question here, gave its consent to the acquisition by the United States of areas in the State of North Dakota "as the United States may deem necessary for the establishment of migratory bird reservations.” 1931 ND Laws, ch 207, p. 360. . The Johansens allege that in 1995 there were 83.8, 64.9, and 67.1 wetland acres on tracts 21X, 24X, and 30X, respectively. . The extent and impact of the ditching have not been determined by a trier of fact. It is undisputed that some wetlands were drained as a result of the ditches. . Implicit within the figures quoted in the Solicitor General’s brief is the representation that the United States had acquired title to thirty-three, thirty-three, and thirty-five acres on tracts 2IX, 24X, and 30X, respectively. See infra at 464-65. The United States Attorney argues that "even if this Court would accept an argument that the federal government must pick only 33 or 35 acres (as the case may be) in each tract to protect, what makes the defendant think we would not pick the acreage they have drained? Indeed, we have already done so by charging them with illegal draining.” Appellee's Br. at 11. Given the Johansens' attempts to involve the federal government in the delineation of its rights to the land, this declaration is repugnant to the notions of fair notice. . This court notes that North Dakota has filed an amicus brief on behalf of the Johansens. . In response to an interrogatory asking, "How was the '764,522 wetland acres’ figure computed," the FWS stated, "[t]he 764,522 wetland acres is a summation of the wetland acres reported on the Easement Summary Sheets for all waterfowl production area easements acquired in North Dakota. The figure is used for record keeping and reporting purposes.” Defendants’ Response to Plaintiffs' Request for Admissions, Interrogatories, and Demand for Production to Defendants, filed on April 5, 1982, Answer to Interrogatory No. 40(a), in Board of Managers et al. v. Key, et al. (later changed to North Dakota v. Butterbaugh), Civ. No. A2-81-178, on file in the trial court. Exhibit D-l 15, at 23. . The Court's treatment of this argument implicitly suggests, however, that the "acreage” is a set figure and not subject to fluctuation. . This court has not received any assurances that there is enough room under the cap to make this possibility unlikely. Given that a wet year is likely to impact the water levels of an entire county similarly and that the gubernatorial limitations are imposed on a county-by-county basis, the possibility of exceeding the gubernatorial consents' acreage limitation could not be discounted.

Rueth v. United States Environmental Protection Agency

COFFEY, Circuit Judge. The appellant, Harold Rueth, doing business as Rueth Development Company, Inc. (“Rueth”), brought this action in the district court seeking to restrain the government from asserting jurisdiction under the Clean Water Act, 33 U.S.C. § 1251 et seq., over property Rueth was developing. The district court granted the government’s Fed.R.Civ.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction because the EPA had not issued a final order nor sought administrative penalties against Rueth. We affirm. BACKGROUND On January 22, 1991 the Army Corps of Engineers (“the Corps”) notified the plaintiff that it failed to obtain a permit and its discharges of dredged and fill materials into wetlands were unauthorized. The wetlands were located in the Castlewood subdivision, a residential development owned by Rueth in Lake County, Indiana. Rueth responded to the Corps by requesting identification of the exact areas in which the unauthorized discharges occurred. On April 11, 1991 the Environment Protection Agency (“EPA”), which has concurrent jurisdiction with the Corps to enforce the Clean Water Act, issued a compliance order under § 309(a) of the Clean Water Act (“CWA” or “the Act”), 33 U.S.C. § 1319(a). The order recited the EPA’s findings that Rueth had filled approximately three acres of wetlands and navigable waters without a permit. The EPA ordered Rueth to cease all discharges into the wetlands and to commence restoration of the wetlands. Rueth sought after-the-fact approval of its filling from the Corps under nationwide permits. The Corps declined to authorize Rueth’s filling under nationwide permit No. 26 noting that it appeared that Rueth was attempting to present its development plans in a “piecemeal” fashion to avoid a comprehensive review of the cumulative ■environmental impact. The Corps stated that if Rueth altered its plans in such a manner that less than ten acres of wetlands would be affected, the Corps would reconsider its position. On May 6, 1991, Rueth filed a complaint seeking injunctive relief and a declaratory judgment against the government’s unauthorized exercise of jurisdiction over the Castle-wood subdivision. The district court granted the government’s motion for dismissal because the EPA had not issued a final appeal-able order. The Clean Water Act The Clean Water Act is a comprehensive statute designed “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a); Hoffman Group, Inc. v. EPA, 902 F.2d 567, 568 (7th Cir.1990). The Act seeks to control the discharge of pollutants into the waters of the United States. 33 U.S.C. § 1251(a)(1). To achieve the purposes of the Act, Congress prohibited discharge of any pollutants, including dredged or other fill material, except in accordance with the Act. 33 U.S.C. § 1311(a). The Act authorizes the Army Corps of Engineers, to issue permits for discharges of dredged or fill material “into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a). The discharge of dredged or fill material into navigable waters without a permit violates the Act which defines “navigable waters” as “waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). The EPA and the Corps of Engineers have adopted regulations defining “waters of the United States” to include numerous bodies of water including wetlands. . 33 C.F.R. § 328.3(a); 40 C.F.R. § 230.3(s). The Corps is authorized to issue two different types of permits. Nationwide permits, are “designed to regulate with little, if any, delay or paperwork certain activities having minimal impacts.” 33 C.F.R. § 330.1. Public comment is required only when the Corps sees fit to promulgate the standards for a nationwide permit and not with each and every activity by a developer under the permit. Rueth sought to have the Corps approve its filling of the wetlands after-the-fact under nationwide permit No. 26 which covers “[discharges of dredged or fill material into headwaters and isolated waters provided” that “the discharge does not cause the loss of more than ten acres of waters of the United States.... ” 33 C.F.R. pt. 330, App. A, B.26(a). The second type of permit authorizing discharge of dredged or fill material is an individual permit which is issued for a specific site as opposed to a nationwide permit covering many sites. Individual permits are only issued after extensive administrative proceedings and investigation which include site-specific documentation, public notice and consideration of all public comments on the specific activity. 33 U.S.C. § 1344(a); 33 C.F.R. §§ 323, 325. As mentioned- above, enforcement of the Clean Water Act is shared jointly by the Corps and the EPA. The EPA may issue compliance orders to violators of the Act, it may assess an administrative penalty, and it may commence an enforcement action in the U.S. District Court. See 33 U.S.C. § 1319(a), (b), (g). Likewise, the Corps may issue a cease and desist order pursuant to 33 C.F.R. § 326.3(c)(1). If the violation continues after the cease and desist order, the government is authorized to bring an enforcement action in the district court, 33 U.S.C. § 1319(b), as well as pursuing administrative enforcement under 33 C.F.R. § 326.6. ' The only issue presented in this appeal is whether the trial court properly granted the government’s motion to dismiss the plaintiffs complaint due to lack of subject matter jurisdiction. DISCUSSION When ruling on a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), “the district court must accept as true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff.” Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir.1993). We “review[] dismissals for lack of subject matter jurisdiction de novo.” Id.; Joyce v. Joyce, 975 F.2d 379, 382 (7th Cir.1992) (“[w]e review de novo a dismissal for lack of subject matter jurisdiction”). The district court held that based on this circuit’s precedent and the statutory history of the Clean Water Act, the EPA’s or Corps’ pre-enforcement activities are not subject to judicial review. The court cited Hoffman Group, Inc. v. EPA, 902 F.2d 567 (7th Cir.1990), to support the idea that Congress intended to preclude judicial review of an EPA compliance order unless the government initiated an enforcement action in the U.S. District Court. The court concluded that “if agency compliance orders are not reviewable until the enforcement stage, an agency’s initial determination that it has the authority to either require permitting or issue orders in the absence of a permit application must also be unreviewable.” Rueth v. United States E.P.A., Mem. op. at 5, 1992 WL 560944 (Nov. 24, 1992). The facts in Hoffman are quite similar to those before us today. Hoffman, a residential developer, was constructing a subdivision in the Chicago area when it discharged fill into two wetlands of about 6.2 acres without a permit. The Corps issued a cease and desist order notifying Hoffman that a permit was required. The EPA issued a compliance order as well under § 309(a) of the CWA requiring Hoffman to cease discharging fill into the wetlands and to restore those areas already filled. Hoffman sought review of the EPA compliance order in district court but the court dismissed the ease and we affirmed holding that Congress “chose not to make a compliance order judicially reviewable unless the EPA decides to bring a civil suit to enforce it.” Hoffman, 902 F.2d at 569. Additionally, we noted that an alleged violator can obtain judicial review if the EPA seeks to assess administrative penalties which Congress also chose to make subject to judicial review. Rueth tries to distinguish its case from Hoffman by arguing that Hoffman was challenging a compliance order while Rueth is challenging the government’s right to assert jurisdiction over the isolated wetlands in the Castlewood development. This alleged distinction falls short of persuading us for Hoffman makes clear that Congress intended judicial review of challenges to agency administrative actions only after the agency seeks judicial enforcement of a compliance order or the agency seeks to enforce administrative penalties. Neither of these situations are present in the case before us and thus judicial review is unavailable at this time. See Southern Pines Assoc. v. United States, 912 F.2d 713 (4th Cir.1990). In Southern Pines, the plaintiff, also a developer challenging the EPA’s jurisdiction over an isolated wetland, tried to draw the same distinction between its case and Hoffman as Rueth tries to draw before us, i.e., that it was a challenge to EPA jurisdiction and not a challenge to an EPA compliance order. But the Fourth Circuit stated “[allowing the parties to challenge the existence of EPA’s jurisdiction would delay the agency’s response in the same manner as litigation contesting the extent of EPA’s jurisdiction. [The plaintiffs] can contest the existence of EPA’s jurisdiction if and when EPA seeks to enforce the penalties provided by the Act.” Id. at 717. It is inappropriate at this stage of the administrative process to interfere with the agency’s factfinding. See, e.g., Howell v. United States Army Corps of Engineers, 794 F.Supp. 1072, 1075 (D.N.M.1992) (ascertaining whether wetlands are covered by CWA “concerns factual determinations properly resolved through agency expertise and reviewable by this Court once a record is developed by the agency”). Once the EPA determines that the Castlewood property is a wetland covered under the CWA and seeks judicial or administrative enforcement of penalties against the plaintiff, then Rueth will be entitled to his day in Court. We acknowledge that our holding places Rueth somewhat in limbo until such time as the EPA seeks to enforce the compliance order or assess administrative penalties. In the interim, we are cognizant of the fact that Rueth might conceivably encounter some problems, such as securing bank loans or obtaining title insurance. Responsibility for this predicament does not fall entirely on the EPA and the Corps of Engineers, as any reasonable and experienced developer such as Rueth should have known that the wetlands were potentially subject to regulation. Perhaps Rueth is in its present predicament because it attempted to short cut and take an end-run around the permit requirement. Indeed, the prudent course for any developer is to secure the necessary permits prior to commencing construction. This is what the Clean Water Act mandates in § 1344(a) when it requires developers to obtain permits prior to filling wetlands. Of course, Rueth now argues that it had no idea the wetlands at the Castlewood development were “waters of the United States.” As our decision in Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 261 (7th Cir.1993), makes clear, however, nearly all wetlands fall within the jurisdiction of the CWA since one test for whether the wetland affects interstate commerce is whether migratory birds use the wetland. Id. Decisions such as Hoffman Homes, give full effect to Congress’s intent to make the Clean Water Act as far-reaching as the Commerce Clause permits. On the other hand, it is not inconceivable that the EPA or the Corps of Engineers might completely overextend their authority. In such a case, we suggest to those agencies that we will not hesitate to intervene in pre-enforcement activity, but this is not the case as we are of the opinion that the wetland at issue falls under the broad definition of “waters of the United States” in Hoffman Homes. Rueth also argues that the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., provides jurisdiction for its appeal. Judicial review may be obtained for final agency action under the APA “except to the extent that ... statutes preclude judicial review_” 5 U.S.C. § 701(a)(1); see Abbott Laboratories v. Gardner, 387 U.S. 136, 139-40, 87 S.Ct. 1507, 1510-11, 18 L.Ed.2d 681 (1967) (in determining whether to review a regulation that had not been enforced, the Court first considered whether or not Congress intended to forbid pre-enforcement review). In this case, as we held above, the Clean Water Act provides for judicial review only when the agency is seeking judicial enforcement of a compliance order or the agency is seeking administrative penalties. Since neither of these requirements are met, the CWA precludes judicial review and accordingly the APA also precludes judicial review. Id.; Howell, 794 F.Supp. at 1075 (“[t]he cease-and-desist letter is not ‘final agency action.’ ... [It] is only the beginning of the administrative process, not its consummation.”). Finally, Rueth argues that jurisdiction is proper under the Declaratory Judgments Act, 28 U.S.C. § 2201, 2202. The Declaratory Judgment Act empowers federal courts to give declaratory judgments in “a case of actual controversy within its jurisdiction,” id. § 2201, but it is not an independent grant of jurisdiction, rather jurisdiction must be predicated on some other statute. Because we held above that we lack jurisdiction under the Clean Water Act to review EPA’s pre-enforcement actions, we cannot grant a declaratory judgment. See A.G. Edwards & Sons, Inc. v. Public Bldg. Comm’n, 921 F.2d 118, 120 n. 2 (7th Cir.1990). Affirmed. . Nationwide permits are general permits designed to regulate activities that have minimal impact on the nation’s waters. The Corps is authorized to draft and adopt nationwide permits after receiving public comment. After a nationwide permit has been adopted by the Corps, in most cases a party seeking to proceed with some activity under the permit may do so without notifying the Corps unless the specific nationwide permit requires notification of the Corps. When a parly is uncertain if a proposed activity, for instance filling an isolated wetland, falls under a nationwide permit, the party should seek prior approval of the Corps or seek an individual permit. 33 C.F.R. § 330. . Our holding is also supported by Howell, 794 F.Supp. at 1075 ("[florcing the agency into litigation before it completes its wetlands delineation and permitting process will frustrate the statutory scheme that allows the agency to resolve violations in a flexible manner without judicial interference”); Leslie Salt Co. v. United States, 789 F.Supp. 1030, 1033-34 (N.D.Cal.1991) ("issuance of cease and desist orders are not sufficient to create jurisdiction in this court”); Mulberry Hills Dev. Corp. v. United States, 772 F.Supp. 1553, 1557-58 (D.Md.1991) (CWA does not allow for pre-enforcement review of cease and desist orders); Route 26 Land Dev. Ass’n v. United States Government, 753 F.Supp. 532, 540 (D.Del.1990) ("the regulatory scheme of the CWA impliedly precludes ... review of [the Corps' assertion of jurisdiction]”), off d without opinion, 961 F.2d 1568 (3rd Cir.1992); McGown v. United States, 747 F.Supp. 539, 542 (E.D.Mo.1990); Fiscella & Fiscella v. United States, 717 F.Supp. 1143, 1147 (E.D.Va.1989) ("the existence of the Corps' jurisdiction in the case at bar is a factual issue properly left to the expertise of the agency.... [t]he Corps should be given the initial opportunity to [determine jurisdiction] and develop a record for judicial review”). . We add that, as Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977), teaches, the APA is not a fertile source of implied jurisdiction since Congress amended 28 U.S.C. Sec. 1331 after the decision in Abbott Laboratories v. Gardner, supra. . The appellant also argues in his brief that the government’s assertion of jurisdiction over its isolated wetland is subject to judicial review under the authority of Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). Rueth did not raise this argument before the district court and thus it has been waived on appeal. Hickey v. Chicago Truck Drivers, 980 F.2d 465, 470 (7th Cir.1992) (“[Qailure to present an argument to the district court waives that argument on appeal”).

Hoffman Homes, Inc. v. Administrator, United States Environmental Protection Agency

HARLINGTON WOOD, Jr., Senior Circuit Judge. A tremendous amount of effort has gone into trying to determine whether a small wetland near Chicago may be regulated under the Clean Water Act. After having issued, then vacated, one opinion on this subject, we hope now to resolve this difficult question. I. BACKGROUND On March 26, 1986, an employee of the Army Corps of Engineers was driving through the Village of Hoffman Estates, Illinois. The employee happened to see that work had begun in a former soybean field on a new subdivision called “Victoria Crossings.” The subdivision would occupy a 43-acre square parcel which, is bordered on the west by the Schaumburg Branch of Poplar Creek, on the east by a road, on the north by another subdivision, and on the south by a wetland and a road. The Corps investigated the site; it determined that the subdivision’s owner, Hoffman Homes, Inc. (“Hoffman”), had violated the Glean Water Act (“CWA” or “Act”), 33 U.S.C. § 1251 et seq., when it filled and' graded parts of the site in preparation for construction. Specifically, the Corps felt Hoffman illegally filled two wetlands, “Area A” and “Area B.” Area A was, a bowl-shaped depression at the northeast border of the tract that covered approximately, óne-acre. The basin was lined with relatively impermeable clay; before being filled by Hoffman, Area A collected rain water and snow melt and frequently ponded or saturated during wet weather. Area A contained at least four different types of wetland vegetation, including cattails. Area A was not directly connected to any body of water, either on the surface or by groundwater, and lay approximately 750 feet from Poplar Creek. Area B ran along the entire western and most of the southern borders of the tract. This wetland covered 13.3 acres, of which Hoffman had filled 5.9 acres. Area B is part of a '50-acre wetland area adjacent to the Poplar Creek. The creek flows into the Fox River which is a tributary of the Illinois River which empties into the Mississippi River. Having been designated as wetlands pursuant to 33 C.F.R. § 328.3(b), the sites could not legally be filled unless Hoffman obtained a permit pursuant .to 33 U.S.C. § 1342 or, § 1344. On May 30,1986, the Corps issued a cease and desist order to Hoffman. This order instructed Hoffman to stop filling wetlands at the site and to apply for an after-the-fact permit to fill the areas. Hoffman did so. The Environmental Protection Agency (“EPA” or “Agency”), which shares responsibility with the Corps for administering and enforcing the CWA, then objected to Hoffman’s plans for mitigating the damage to the wetlands. Consequently, on November 20, 1987, the Corps denied Hoffman’s permit application and referred the matter to the EPA. The EPA on December 22, 1987, issued a compliance order pursuant to 33 U.S.C. § 1319(a). The order stated that Hoffman had filled wetlands without a permit, thereby violating 33 U.S.C. § 1311. The compliance order directed Hoffman to cease its filling activities and to submit and carry out a plan to restore the wetlands to their original condition. On January 12, 1988, the EPA also issued an administrative complaint against Hoffman, pursuant to 33 U.S.C. § 1319(g), seeking a $125,000 penalty for Hoffman’s filling activities. Hoffman answered the complaint, admitting it had filled the two areas but denying they were waters subject to the CWA. On October 24, 1988, hearings commenced before an EPA Administrative Law Judge (“ALJ”). The hearings lasted a total of twenty-one days but did not run consecutively. The final hearing was held January 19, 1989. On August 4, 1988, while the hearings before the ALJ were still proceeding, Hoffman brought an action in district court seeking a declaration of the compliance order’s invalidity and an injunction against its enforcement. At that time the EPA had not yet decided whether to enforce its compliance order by bringing an action in a federal court pursuant to 33 U.S.C. § 1319(b). Consequently, the district court dismissed Hoffman’s action in January 1989. The district court held that the CWA precluded pre-enforcement review of the EPA’s compliance order. See Hoffman Group, Inc. v. United States E.P.A., No. 88 C 6695, 1989 WL 165265 at *20003, 1989 U.S. Dist. Lexis 16,599, at *2 (N.D.Ill. Jan. 23, 1989). Hoffman appealed the district court’s decision and we affirmed. We explained that Hoffman was not entitled to judicial review unless the EPA either assessed administrative penalties against Hoffman or sought judicial enforcement of its compliance order. Until such time, Hoffman was not subject to penalties or an injunction for not obeying the EPA’s compliance order. See Hoffman Group, Inc. v. E.P.A., 902 F.2d 567, 568 (7th Cir.1990). Shortly after our decision'Hoffman became entitled to judicial review. On November 19, 1990, the EPA’s Chief Judicial Officer (“CJO”) assessed a $50,000 fine against Hoffman for having discharged “dredged or fill material” into Area A without a permit in violation of 33 U.S.C. § 1311 and § 1314 and affirmed another $50,000 penalty against Hoffman for filling Area B. In fining Hoffman for filling Area A, the CJO was reversing the ALJ. On September 14, 1989, in the ALJ’s “Initial Decision,” the ALJ had found that although Area A was a wetland it was not subject to the CWA’s permit requirements. The ALJ characterized Area A as being “isolated.” Initial Decision at 48. The EPA had not shown, the ALJ found, that Area A had any surface or groundwater connection with Poplar Creek. In the ALJ’s opinion, the Agency also failed to show that Area A performed flood control or sediment trapping in connection with drainage into or the possible flooding of the creek. Id. at 45. Instead, the ALJ found that water drained into Area A from the immediately surrounding area, collected there, and then slowly evaporated or dissipated. Id. at 47. “There is also no basis for determining if Area A has any effect on the Schaumburg Branch [of Poplar Creek], because it simply cannot be determined what the drainage or flow of water would be if Area A were not there.” Id. The ALJ recognized that under EPA and Corps regulations, Area A would be subject to the CWA permit requirements if the wetland affected interstate commerce, see 40 C.F.R. § 230.3(b)(3), 33 C.F.R. § 328.3(a)(3), and further noted that the EPA and Corps consider a wetland to affect interstate commerce if, for instance, the wetland serves as habitat for migratory birds'. Initial Decision at 48. The ALJ, however, found the EPA had not presented evidence of actual use by migratory birds of Area A nor of any special characteristics that would attract migratory birds to Area A. Since there was nothing more “than the theoretical possibility” Area A would be used by migratory birds, the ALJ found'the regulations did not apply. Id. at 49. The EPA appealed the ALJ’s decision to the CJO. The EPA, however, did not challenge the ALJ’s findings regarding Area A’s hydrological isolation; the Agency only challenged the ALJ’s conclusion that given those findings the regulations were inapplicable to Area A. The CJO held that the EPA could not assert jurisdiction over “an isolated, intrastate water body” unless it could demonstrate “that the destruction of that water body will have an effect on interstate commerce.” Final Decision at 9. To satisfy its burden of proof, the CJO required the EPA to “show some minimal, potential effect, on interstate commerce.” Id. This effect was shown, the CJO concluded, when the EPA demonstrated Area A provided “.a suitable habitat for ' migratory birds before it was filled in.” Id. at 2. The CJO' noted that Area B supported migratory bird habitat and by its proximity Area A could as well. Id. at 30. Hoffman appealed the CJO’s decision regarding Area A, but not Area B, to this court. We exercised jurisdiction pursuant to 33 U.S.C. § 1319(g)(8)(B). The developer contended the CWA did not give the EPA regulatory authority over Area A. The EPA maintained it had jurisdiction dué' to the potential use of Area A by migratory birds. We held the EPA’s regulations went beyond the limits of the Clean Water Act and the commerce clause, U.S. Const. art. 1, § 8, cl. 3. Accordingly, on April 22, 1992, we vacated. the EPA’s $50,000 penalty against Hoffman for filling Area A. See Hoffman Homes, Inc. v. Administrator, United States E.P.A., 961 F.2d 1310, 1321-23 (7th Cir.1992). The EPA then filed a petition for rehearing and suggested the rehearing be conducted en banc. On September 4, 1992, we granted the petition for rehearing and vacated our opinion and order. We further ordered that the matter be referred to our senior staff'attorney, Donald J. Wall, for the purpose of conducting settlement negotiations between the parties pursuant to Federal Rule of Appellate Procedure 33 and Circuit Rule 33. See Hoffman Homes, Inc. v. Administrator, United States E.P.A., 975 F.2d 1554, 1554 (7th Cir.1992). Since that time, Mr. Wall'has conferred with counsel to the parties on numerous occasions. On March 25, 1993, he informed the court that the parties were unable to reach a settlement and further negotiations would be futile. The matter is thus back in the hands of the original panel which heard the oral arguments on this case nearly two years ago. II. DISCUSSION Hoffman Homes does not dispute that the EPA and the Corps have correctly characterized Area - A as a wetland pursuant to 33 C.F.R. § 328.3(b) and 40 C.F.R. § 230.3(t). Nor does Hoffman deny having filled Area A. Hoffman disputes only that the small wetland can be regulated under the Clean Water Act. Congress’s objective in enacting the Clean Water Act was “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To that end, the CWA prohibits “the discharge of dredged or fill material into - the navigable waters” without a permit. Id. § 1344(a). The CWA defines “navigable waters” as meaning “the waters of the United States, including the territorial seas.” Id. § 1362(7). The CWA, though, does not define the term “waters of the United States.” The EPA and the Corps have done so in two identically worded-regulations. According to the EPA and the Corps, “waters of the United States” includes, among other things, bodies of water wholly within a state whose use or misuse could affect interstate commerce: (s) The term waters of the United States means: (3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: (i)Which are or could be used by interstate or foreign travelers for recreational or other purposes; or (ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or (iii) Which are used or could be used for industrial purpose by industries in interstate commerce; 40 C.F.R. § 230.3(s)(3) (EPA’s definition); 33 C.F.R. § 328.3(a)(3) (Corp’s definition). The EPA’s Chief Judicial Officer ruled that the regulation extended to Area A by virtue of the wetland’s potential effect on interstate commerce. It was not necessary under the regulation, the CJO held, that the EPA show an actual effect on interstate commerce. The CJO noted the EPA’s regulation explicitly forbids the “degradation or destruction” of intrastate wetlands when such actions “could affect” interstate commerce: “The use of the word ‘could’ means that EPA need not show an actual effect on interstate commerce. ' Showing a potential effect will suffice.” Final Decision at 11. Our job is to determine whether (i) the EPA properly interpreted 40 C.F.R. § 230.-3(s)(3) and (ii) whether the CJO’s finding of a violation of the CWA is supported by “substantial evidence.” See 33 U.S.C. § 1319(g)(8) (mandating standard of review); Arkansas v. Oklahoma, — U.S.-, -, 112 S.Ct. 1046, 1060, 117 L.Ed.2d 239 (1992). Regarding the first question, we have stated that “[a]n agency’s construction of its own regulation binds a court in all but extraordinary cases.” Homemakers N. Shore, Inc. v. Bowen, 832 F.2d 408, 411 (7th Cir. 1987); accord United States v. Baxter Healthcare Corp., 901 F.2d 1401, 1407 (7th Cir.1990) (court gives great deference to agency’s interpretations of its own regulations). . We must uphold the EPA’s interpretation of 40 C.F.R. § 230.3(s)(3) “unless it-is plainly erroneous or inconsistent with the regulation.” United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977) (citation omitted); accord Wisconsin Elec. Power Co. v. Reilly, 893 F.2d 901, 907 (7th Cir.1990). Hoffman Homes has failed to persuade us the EPA has misread 40 C.F.R. § 230.3(s)(3). The regulation speaks of regulating wetlands and other bodies of water whose use, degradation or destruction “could” affect interstate commerce. This includes waters “which are or could be” used by interstate travellers, “[f]rom which fish or shellfish are or could be taken,” and which “are used or could be used” for industrial purposes. Id. (emphasis added). We agree with the CJO that the use of the word “could”' indicates the regulation covers waters whose connection to interstate commerce may be potential rather than 'actual, minimal rather than substantial. We also agree with the CJO that it is reasonable to interpret the regulation as allowing migratory birds to be that connection between a wetland and interstate commerce. Throughout North America, millions of people annually spend more than a billion dollars on hunting, trapping, and observing migratory birds. Yet the cumulative loss of wetlands has reduced populations of many bird species and consequently the ability of people to hunt, trap, and observe those birds. See North American Waterfowl Management Plan 1 (1985); cf. Palila v. Hawaii Dep’t of Land & Natural Resources, 471 F.Supp. 985 (D.Haw.1979) (protecting endangered bird preserves interstate commerce in species and interstate movement of persons wishing to study species), aff'd, 639 F.2d 495 (9th Cir.1981). See generally United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir.1979) (Congress’s commerce clause power “has come to mean that Congress may regulate activities which affect interstate commerce.”). Next we must determine whether the CJO’s finding of a violation of the regulation is supported by “substantial evidence.” The Supreme Court recently emphasized in Arkansas v. Oklahoma, — U.S.-, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992), that a “court reviewing an agency’s adjudicative action should accept the agency’s factual findings if those findings are supported by substantial evidence on the record as a whole.” Id. — U.S. at -, 112 S.Ct. at 1060. “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938). We obviously do not need to examine the EPA’s finding that Hoffman filled Area A; Hoffman has admitted this act. We must ask, however, if the EPA’s finding that Area A, before, being filled, was a suitable or potential habitat for migratory birds is supported by substantial evidence. The ALJ, as noted earlier, found there was no evidence that any migratory birds actually used Area A. The witnesses the EPA presented only testified as to seeing migratory birds at Area' B. The ALJ also foúnd the EPA had failed to present any evidence “that Area A contains any characteristic that would render it any more attractive to birds than any other land that at one time or another contains water.” Initial Decision at 48. The ALJ concluded: “It has not been shown by the preponderance of the evidence that Area A has characteristics whose use by and value to migratory birds is well established and that it is likely that it -will be used by migratory birds.” Id. at 50. Despite the ALJ’s findings, the CJO concluded that on the same evidence Area A was a - site suitable to migratory birds. Final Decision at 26. .First, the CJO noted that Area A was located relatively close to Area B which itself was part of a fifty-acre wetland area and bordered Poplar Creek. Five witnesses testified before the ALJ as to the numerous migratory bird species they had spotted at Area B, including white egrets, blue herons, green herons, Canada geese, mallard ducks,’ red-winged blackbirds, and mourning doves. Id. at 27 n. 25. The CJO reasoned that if Area B would support those migratory birds then Area A would as well. The CJO based this conclusion in part on the transcripts of testimony of two witnesses, Gerald Bade, a fish and wildlife biologist with the United States Fish and Wildlife Service, and Douglas Ehorn, an EPA water quality specialist. In the CJO’s words, “Bade ... testified that the value of Wetland B as a suitable habitat for migratory birds would be replicated at Area A.” Ehorn stated it was a “good possibility” migratory birds would use Area A. Based on our examination of the record, we find the CJO’s conclusion that Area A ^as suitable for migratory bird habitat to be unsupported by substantial evidence on the record as a whole. Bade, for example, testified as to what he had seen at Area B and not Area A. His testimony as to the suitability of Area A was merely speculation based on the assumption that Area A was a wetland similar to Area B. In contrast to Area B, Area A does not border a stream, it does not adjoin a large wetland, its only source of moisture is rainfall, it is only wet part of the year, and it covers approximately one acre instead of fifty. • Bade, moreover, admitted that Victoria Crossing would have a low waterfowl value because of the lack of open water. Similarly, Ehorn said he never observed any large waterfowl at the site. Dana Sanders, a plant ecologist associated with the Corps, also testified and characterized Area A as having only “moderate” suitability as a resting place for migratory birds. It is true, of course, that migratory birds can alight most anywhere. As Gerald Bade testified, he has seen mallards in parking lot puddles. The ALJ, however, was in the unique position to view the evidence, to hear the testimony, and to judge the credibility of the witnesses. He concluded that the evidence did not support the conclusion that Area A had characteristics whose use by and value to migratory birds is well established. We agree. The migratory birds are better judges of what is suitable for their welfare than are we, the ALJ or the CJO. Having avoided Area A the migratory birds have thus spoken and submitted their own evidence. We see no need to argue with them. No justification whatsoever is seen from the evidence to interfere with private ownership based on what appears to be no more than a well intentioned effort in these particular factual circumstances to expand government control beyond reasonable or practical limits. After April showers not every temporary wet spot necessarily becomes subject to government control. III. CONCLUSION Almost one hundred years ago the Supreme Court characterized wetlands as “the cause of malarial and malignant fevers” and opined that “the police power is never more legitimately exercised than in removing such nuisances.” Leovy v. United States, 177 U.S. 621, 636, 20 S.Ct. 797, 803, 44 L.Ed. 914 (1900). We know now that wetlands are not nuisances but instead are vital to the well-being of both humans and wildlife. Nonetheless, it is our conclusion based on the particular facts and findings below that Area A is not subject to regulation under the Clean Water Act. For this reason we vacate the EPA’s order requiring Hoffman Homes, Inc. to pay a $50,000 administrative penalty for the filling of Area A. Vacated. . The effort is not entirely that of the parties and the court.- We acknowledge receipt of amicus curiae briefs by the Pacific Legal Foundation and Eight Wetland Scientists. . Mr. Wall’s communication to the court was limited solely to reporting the fact that settlement negotiations had been conducted but were unsuccessful. . Congress has long recognized the importance of preserving migratory birds. In 1918 Congress approved the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq., and in 1929 it passed the Migratory Bird Conservation Act, 16 U.S.C. § 715 et seq.

Hoffman Homes, Inc. v. Administrator, United States Environmental Protection Agency

MANION, Circuit Judge, concurring in the judgment. I agree with the court’s conclusion that the EPA has no authority to regulate Area A, but for different reasons. I would vacate the EPA’s order in this case for the reasons set out in Hoffman Homes, Inc. v. EPA, 961 F.2d 1310 (7th Cir.1992) (since vacated). I incorporate by reference that previously published opinion as my concurrence, subject to the following additional comments. I agree with the court’s holding that the CJO did not misconstrue the EPA’s permit regulation, 40 C.F.R. § 230.3(s)(3). That regulation provides that the EPA has jurisdiction over all wetlands “the use, degradation, or destruction of which could affect interstate or foreign commerce.” The CJO interpreted this regulation to give the EPA jurisdiction over any wetland that could have a “minimal, potential effect” on interstate commerce. This construction is reasonable, given that it is consistent with the regulation’s assertion of jurisdiction over wetlands that “could affect interstate commerce.” To overturn the CJO’s interpretation of the regulation would be inconsistent with the great deference we give to an agency’s interpretation of its own regulations. The regulation reflects the EPA’s position that the Clean Water Act gives it jurisdiction over all “waters” — including wetlands within reach of the Commerce Clause. Does the Clean Water Act give the EPA jurisdiction over Area A? Area A is an “isolated wetland,” and isolated wetlands by definition have no effect on the waters of the United States. That definition is not pulled from thin air; rather, it is the EPA’s own definition. The ALJ found that Area A has no surface or ground water connection to any other body of water, does not perform any water quality functions as to any other body of water, and is not actually used as a wildlife habitat. The EPA has never challenged these findings, and the CJO did not alter or discard them. Thus, the ALJ’s findings are the EPA’s findings; in other words, the ALJ’s definition of “isolated wetlands” is the EPA’s definition. It follows from the EPA’s own definition of “isolated wetlands” that regulating Area A does not further the.Clean Water Act’s purpose to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” See 33 U.S.C. § 1251. Therefore, the Clean Water Act does not give the EPA authority to regulate Area A, even if the Commerce Clause allows Congress to regulate isolated wetlands. See 961 F.2d at 1312-16 for a fuller discussion of the Clean Water Act’s construction. But even if the EPA were correct that the Clean Water Act authorizes regulation of isolated wetlands, I would still vacate the EPA’s ordeif in this case. For reasons stated in the previous panel opinion in this case, I would hold 'that the Commerce Clause does not empower Congress to regulate isolated wetlands such as Area A. See 961 F.2d at 1316-23. To hold otherwise would be, in effect, to hold that Congress’ power under the Commerce Clause is virtually limitless. The commerce power as construed by the courts is indeed expansive, but not so expansive as to authorize regulation of puddles merely because a bird traveling interstate might, decide to stop for a drink.

United States v. Pozsgai

OPINION OF THE COURT SCIRICA, Circuit Judge. In this civil enforcement action, John and Gizella Pozsgai appeal the district court’s judgment finding them strictly liable for discharging fill material into wetlands on their property in violation of the Clean Water Act. Defendants also appeal various orders granting the government injunctive relief, finding John Pozsgai in contempt of the injunction, and denying the Pozsgais’ motion for relief from judgment. We will affirm. I. In April 1987, the U.S. Army Corps of Engineers received information that fill material was being dumped into wetlands on a 14-acre site in Morrisville, Pennsylvania. The Corps investigated the site, determined that nearly the entire property constituted wetlands, and found that concrete rubble, earth, and building scraps had been dumped onto one-half to three-quarters of an acre of the wetlands portion of the property. Corps biologist and field investigator Martin Miller described the site as “a forested wetland dominated by arrowwood” and noted “areas of standing water were scattered throughout the site,” and “a stream flows along the east border of the. property and wetland and. is a tributary to the Pennsylvania Canal.” Miller also observed several species of vegetation on the site which require a saturated environment to survive, including skunk cabbage, sensitive fern, red maple, sweet gum, ash, and aspen. Soil borings taken by Miller and other Corps biologists confirmed the initial determination of wetlands, revealing water either at or within one inch of the surface of the soil. This so-called hydric soil takes 100 years or more to develop. Unpermitted discharge of dredged or fill materials into certain wetlands violates a regulation promulgated under the Clean Water Act, 33 U.S.C. § 1251 et seq. (1988). Miller’s field report stated that “[t]he violation consists of the placement of fill (concrete rubble, earth, and building scraps) in three portions of the wetland for the purpose of raising the elevation for construction of a garage.” The report identified the violator as John Pozsgai. At the time of the Corps investigation, John and Gizella Pozsgai were considering purchasing the property to expand their truck repair business. John Pozsgai planned to build a garage on the property, a project which would require filling a significant amount of the area. In preparation for this purchase, Pozsgai hired the engineering firm of J.G. Park Associates to examine the suitability of the property for building. On December 12, 1986, J.G. Park President Nicholas Moran advised Pozsgai by letter of the results of its site investigation of the property. The letter stated: Based upon this investigation, it is my professional opinion that the entire site meets the criteria set forth by the Army Corps of Engineers as “wetlands.” This is based upon soils, hydrology and vegetation. Please be advised that any further development that might be considered on this site would have to be approved and reviewed by the Army Corps of Engineers, and it has been our experience in the past that the Corps is most reluctant to issue permits for sites that have conditions such as this. This advice turned out to be accurate. Corps biologist Miller spoke to Pozsgai by telephone and advised him not to place fill in the wetlands until he had obtained a permit. Pozsgai told Miller a previous prospective buyer was responsible for at least some of the filling but that Pozsgai planned to fill enough area to build a garage. Pozsgai also agreed to stop his filling activities until he had complied with the permit requirements and said his engineer would call Miller to discuss these requirements. Pozsgai continued his efforts to purchase the property. Apparently dissatisfied with J.G. Park’s opinion, Pozsgai hired a second engineer, Ezra Golub, to evaluate the property. Golub, too, advised Pozsgai the property was wetlands and the Corps would have to approve any building. Seeking yet a third opinion, Pozsgai hired Majors Engineers, who concurred in the views expressed by the previous two engineers. After receiving the engineers’ reports, Pozsgai renegotiated the sale contract for the property. The original sale contract, for a purchase price of $175,000, made the sale contingent on Pozsgai obtaining building permits for his proposed garage. The revised contract replaced the contingency provision with an “as is” clause and included a $32,000 reduction in the purchase price, from $175,-000 to $143,000. Under this revised sale contract, Pozsgai purchased the property on June 19, 1987. In the meantime, Corps investigator Miller continued to monitor activities at the property. Following his April 1987 visit, Miller had several telephone conversations with Pozsgai. Each time, Miller told Pozsgai to stop his filling activities and explained the permit requirements. Additionally, the Corps issued a cease and desist letter to the Cassalias, the prior owners of the property. The Cassalias responded by letter, stating they had sold the property to Pozsgai but had never given him permission to place fill on the property. Miller returned to the site in August 1987 and observed that fill had been placed on an additional two acres of the property. He reiterated to Pozsgai that he would need a permit to discharge the fill and indicated the Corps would issue a cease and desist order if Pozsgai did not stop filling the wetlands. Pozsgai told Miller that township officials and the police had visited him and shown him the cease and desist letter sent to the Cassa-lias. He also told Miller he had stopped work on the property. On September 3, 1987, the Corps sent John and Gizella Pozsgai a cease and desist letter. The letter stated fill was being placed on the Pozsgais’ property in federally regulated wetlands without a permit in violation of the Clean Water Act and directed the Pozsgais to stop “conducting, contracting, or permitting any further work of this nature.” In response, the Pozsgais’ counsel wrote the Corps on September 24, reporting that John Pozsgai had conferred with engineers regarding the cease and desist letter and expressing Pozsgai’s opinion that the site did not “naturally” contain wetlands but had only become saturated as a result of construction of an overpass near the property. Miller visited the site again on October 6 and observed additional fill. On this visit, Miller determined almost the entire property constituted wetlands. He. ordered Pozsgai not to do any more filling on the property. Pozsgai said he believed the area was not wetlands because he had excavated the stream on the property. Miller returned to the site in November, again observing new fill since his last visit. Miller reiterated the need for Pozsgai to obtain a permit. On December 17, the Corps sent the Pozsgais a second cease and desist letter, directing them to stop filling, and offering them two options to resolve the violation — removing all fill material and restoring the site to its former condition, or obtaining a Water Quality Certification from the Pennsylvania Department of Environmental Resources. In May 1988, the Corps again discovered that John Pozsgai was continuing to fill the wetlands. Subsequent investigation revealed Pozsgai had received several hundred truckloads of fill from at least five different hauling companies. On August 18, 1988, following a complaint from a neighbor about the dumping, the U.S. Environmental Protection Agency installed a video camera in the neighbor’s house. The video camera recorded dumping on the property. On August 24,1988, the United States filed a civil complaint in federal district court, alleging that John and Gizella Pozsgai, and two of the hauling companies hired by the Pozsgais, had violated the Clean Water Act by filling the wetlands on the Pozsgais’ property without a permit. The government sought an order to restore the property to its original state, as well as civil penalties. It simultaneously moved for a temporary restraining order and a preliminary injunction to stop further discharge. The district court entered the TRO. Two days later, on August 26, the video camera recorded 25 truckloads of dirt dumped on the site, and a man, identified by witnesses as John Pozsgai, operating a bulldozer leveling the fill. On September 2, the government obtained an Order to Show Cause why Pozsgai should not be held in contempt for violating the TRO. The district court held a hearing on the contempt proceeding and the preliminary injunction on September 9 and September 16. After the hearing, the court granted the preliminary injunction and held Pozsgai in contempt, ordering him to pay $5,000 within 48 hours. In the meantime, the government initiated a parallel federal criminal proceeding against John Pozsgai. On December 30,1988, a jury convicted Pozsgai of 40 counts of unpermit-ted discharge. The district judge sentenced him to three years for the pre-Sentencing Guideline counts and twenty-seven months for post-Guideline counts, to run concurrently, placed him on 5 years probation, and fined him $200,000. We affirmed the conviction. United States v. Pozsgai, 897 F.2d 524 (3d Cir.), cert. denied, 498 U.S. 812, 111 S.Ct. 48, 112 L.Ed.2d 24 (1990). On January 8, 1990, the district court granted a permanent injunction in the government’s civil action. The court found the property contained wetlands subject to the Corps’ jurisdiction and held the Pozsgais and the haulers strictly liable for the unpermitted discharge. It further ordered defendants to implement the plan developed by the Corps to restore the property. The Pozsgais filed a motion to reconsider which the district court denied. On June 18, the court implemented its restoration order and directed the defendant haulers to restore the property by removing fill from the wetland areas and depositing it in other non-wetland areas of the property. The Pozsgais filed a Fed.R.Civ.P. 60(b) motion for relief from this order, objecting to the locations where the haulers placed the fill and requesting the court to order the haulers to remove the fill from the Pozsgais’ property altogether. The court denied the motion, ruling that the Pozsgais had no “veto power” over the restoration process and that it would be inequitable to require the haulers to move the fill a second time when the Pozsgais had improperly disposed of it in the first place. The court entered final judgment on April 1, 1992. The Pozsgais appealed. II. In furtherance of its purpose to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), the Clean Water Act prohibits the discharge of pollutants into navigable waters without a permit. 33 U.S.C. § 1311; United States v. Riverside Bayview Homes, 474 U.S. 121, 123, 106 S.Ct. 455, 457, 88 L.Ed.2d 419 (1985). The Act defines the operative terms of this prohibition broadly. The term “pollutants” includes fill material such as “dredged spoil, ... rock, sand, [and] cellar dirt,” 33 U.S.C. § 1362(6), and “navigable waters” means “the waters of the United States,” id. § 1362(7). In so defining the term “navigable waters,” Congress expressed a clear intent “to repudiate limits that had been placed on federal regulations by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term.” Riverside Bayview Homes, 474 U.S. at 133, 106 S.Ct. at 462 (citing S. Conf. Rep. No. 92-1236, p. 144 (1972); 118 Cong. Rec. 33756-57 (1972) (statement of Rep. Dingell)). The Corps of Engineers has by regulation interpreted the term “waters of the United States” to include “wetlands,” defined as “areas that are inundated or saturated by surface or ground water at a frequency or duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, [and] generally inelude[s] swamps, marshes, bogs, and similar areas.” 33 C.F.R. § 328.3(b) (1992). The regulation extends the Corps’ authority to wetlands “adjacent” to tributaries of waters presently or formerly used, or susceptible to use, in interstate commerce. Id. The Supreme Court has upheld this regulation as a reasonable interpretation of the Clean Water Act. Riverside Bayview Homes, 474 U.S. at 135, 106 S.Ct. at 463. Section 404 of the Act authorizes the Corps of Engineers to issue permits for “the discharge of dredged or fill material into the navigable waters....” 33 U.S.C. § 1344(a). The permit program is the central enforcement tool of the Clean Water Act. The program reflects the Act’s strategic shift in water pollution policy, which previously had employed only water quality standards. These standards proved unsuccessful in controlling pollution because the Corps had difficulty linking the quality of the water to discharges from a particular source. The Act sought to avoid this problem by focusing pollution control efforts at the point of discharge. See EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 204, 96 S.Ct. 2022, 2024, 48 L.Ed.2d 578 (1976). The Environmental Protection Agency implemented that strategy in part by establishing national effluent standards. The permit system translates these standards into site-specific limitations to accommodate individual circumstances and ease enforcement. Id. at 205, 96 S.Ct. at 2025. Unper-mitted discharge is the archetypal Clean Water Act violation, and subjects the discharger to strict liability. 33 U.S.C. § 1311(a) (“except as in compliance with [a permit], the discharge of any pollutant by any person shall be unlawful”). III. On appeal, the Pozsgais do not dispute they discharged fill onto wetlands without a permit. They urge instead that this conduct did not violate the Clean Water Act. The Pozsgais contend that filling wetlands does not constitute discharge of pollutants “into water” within the meaning of the Clean Water Act, that their wetlands fall outside the Corps’ regulation and permit requirements, and that the regulation as applied to them violates the Commerce Clause. A. We first address the Pozsgais’ argument that they did not discharge pollutants “into water” within the meaning of the Clean Water Act. 33 U.S.C. § 1362(6). They contend that the fill materials deposited on their property were not “pollutants,” and that they discharged only into “wetlands,” which are not equivalent to “water.” To assess these contentions, we look to the statute. The operative section of the Clean Water Act is § 301, which provides that absent a permit, “the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). The Act defines “pollutant” to mean “dredged spoil, rock, sand” and other materials “discharged into water,” id. § 1362(6), and defines “discharge of a pollutant” to mean “any addition of any pollutant to navigable waters from any point source,” id. § 1362(12). The Act defines “navigable waters” to mean “the waters of the United States.” Id. § 1362(7). The Corps’ regulation upheld in Riverside Bayview defines “waters of the United States” to include certain wetlands. (1) In ruling the Pozsgais’ fill material constituted “pollutants,” the district court cited evidence that they placed “concrete rubble” and “cinder block” on their property and cleared and redeposited vegetation there. The court held each of these qualified as “pollutants,” defined to include “dredged spoil, solid waste, ... rock, sand, ... municipal, and agricultural waste.... ” 33 U.S.C. § 1362(6). On appeal, the Pozsgais stress' the absence of the words “fill material” in the definition of “pollutant.” They point to Congress’ use of the term “fill material” in the Act’s permitting provision, id. § 1344, as evidence Congress was aware of this phrase and chose not to include it in the definition of “pollutant.” This argument is unconvincing. Because the term “pollutant”- includes “dredged spoil, rock, [and] sand,” id. § 1362(6), which are the constituents of the fill material used here, the materials discharged by the Pozsgais constituted “pollutants.” (2) The Pozsgais’ second contention is more sweeping. They argue that the phrase “into water” in the definition of “pollutant” forecloses application of the Clean Water Act to their activities, which consisted only of depositing fill material into “wetlands.” Again, the district court disagreed, citing the Corps regulation that defines “waters of the United States” to include “wetlands” adjacent to waters used in interstate commerce, 33 C.F.R. § 328.3(a)(7), and to the Supreme Court’s Riverside Bayview Homes decision upholding this regulation as a reasonable interpretation of the Act, 474 U.S. at 135, 106 S.Ct. at 463. The Pozsgais contend the district court misconstrued the Act. In their view, the phrase “into water” in the definition of “pollutant” is the critical limiting feature of the Act because this phrase determines application of the Act’s permit requirement. They base this argument on the Act’s liability section, which provides that without a permit, “the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). By contrast, they contend, the phrase “waters of the United States” — and the Corps’ regulation interpreting that phrase to include adjacent wetlands — only define the Act’s geographic jurisdiction and cannot alone support a finding of liability. Thus, the Pozsgais maintain, the district court’s reliance on these provisions, and on Riverside Bayview’s interpretation of them, was misplaced. They conclude that because neither Riverside Bay-view nor the Corps regulation address the definition of “pollutant,” these authorities do not obviate the statutory obstacle to liability created by the requirement that materials only constitute “pollutants” if they are discharged “into water.” The interpretive problem raised by the Pozsgais’ argument lies in knitting together the various statutory provisions. Incorporating the definition of “pollutant” in § 1362(6) into the definition of “discharge of a pollutant” in § 1362(12) creates an apparent redundancy, as the term “discharge of a pollutant” then reads: “any addition of any ‘dredged spoil ... discharged into water’ to navigable waters from any point source.” The question then becomes how the phrase “into water” and the phrase “to navigable waters” co-exist in this definition. The Poz-sgais avoid this problem by ignoring the definition of “discharge of a pollutant,” and focusing instead exclusively on the definition of “pollutant” and the use of the word “pollutant” in the Act’s liability section, § 1311. This reading is untenable because although § 1311 contains the word “pollutant,” it does so in the context of expressly prohibiting “discharge of any pollutant.” We read this as a clear cross-reference to the definition of “discharge of a pollutant” in § 1362(12). At oral argument, the Pozsgais argued §§ 1362(6) and (12) are not in conflict. They asserted that because the term “discharge of a pollutant” itself includes the term “pollutant,” the former definition, including its use of “navigable waters,” is necessarily limited by the phrase “into water” in the definition of “pollutant.” The more natural reading of the definition of “discharge of a pollutant” is that the phrase “navigable waters” modifies the phrase “into water,” and accordingly, that the critical definition is that given the term “navigable waters.” As a textual matter, the word “navigable” is an adjective modifying the word “water.” Moreover, the statute contains numerous references to the phrase “navigable waters,” revealing that this phrase, rather than “into water,” is the focus of the Act’s coverage. The Act’s “Congressional declaration of goals and policy” states: “it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.” 33 U.S.C. § 1251(a)(1). Section 404 provides that “[t]he Secretary [of the Army] may issue permits ... for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” Id. § 1344(a). Additionally, the Act defines “navigable waters” to mean “waters of the United States.” Id. § 1362(7). The legislative history also demonstrates the significance and breadth of the term “navigable waters.” The Conference Report states: “[t]he conferees fully intend that the term ‘navigable waters’ be given the broadest possible constitutional interpretation....” S.Conf.Rep. No. 1236, 92d Cong., 2d Sess. 144, U.S. Code Cong. & Admin. News 1972, 3668, reprinted in 1 A Legislative History of the Water Pollution Control Act Amendments of 1972 327 (1973); see also H.R.Rep. No. 911, 92d Cong., 2d Sess. 131 (containing identical language), in 1 Legislative History 818. Moreover, the Senate Report makes clear it is the discharge of materials constituting “pollutants” into “navigable waters” that triggers the Act’s permit requirement. The Report provides: For the first time the Committee would add to the law a definition of the term pollutant. In order to trigger the control requirements over addition of materials to the navigable water, waters of the contiguous zone and the ocean, it is necessary to define such materials so that litigable issues are avoided over the question of whether the addition of a particular material is subject to the control require-ments____ The control strategy of the Act extends to navigable waters____ S.Rep. No. 414, 92d Cong., 1st Sess. 77-78, U.S. Code Cong. & Admin. News 3668, in 2 Legislative History 1494-95. This legislative history supports our view that the phrase “navigable waters” rather than “into water” is the critical statutory language. It also demonstrates the definition of “pollutant” establishes the types of materials whose discharge violates the Act rather than the locus of their discharge, further undermining the significance of the “into water” phrase. Our emphasis on “navigable waters” also comports with the interpretation of the Clean Water Act by other courts, who have reached the same conclusion without expressly considering the “into water” portion of the definition of “pollutant.” In upholding the Corps’ wetlands regulation in Riverside Bayview, the Supreme Court stated simply: “the act prohibits discharges into ‘navigable waters,’ see Clean Water Act §§ 301(a), 404(a), 502(12), 33 U.S.C. §§ 1311(a), 1344(a), 1362(12).” 474 U.S. at 133, 106 S.Ct. at 462. We find significant both the Court’s summary treatment of this question and its citation only to the “discharge of a pollutant” definition, § 1362(12), not to the “pollutant” definition, § 1362(6). The Pozsgais maintain the phrase “navigable waters,” which they note is defined as “waters of the United States,” refers only to the geographic jurisdiction of the Act. Therefore, they contend, that definition does not modify the phrase “into water,” which they read only to describe the conduct regulated by the Act. This distinction is illusory. The purpose of extending the Corps’ geographic jurisdiction to “waters of the United States,” including adjacent wetlands, is precisely so the Corps can control conduct occurring on these wetlands, i.e., the discharge of pollutants. Indeed, such conduct has given rise to this action. For the reasons we have outlined, we believe Congress intended “navigable waters” to be the controlling phrase in defining the scope of the Clean Water Act, and we believe this phrase modifies the more general term “into water” appearing in the definition of “pollutant.” Accordingly, the Pozsgais’ wetlands filling activities constituted “discharge into water” and fall within the statute. Our conclusion that the Act’s permit requirement applies to pollutants discharged into “navigable waters” does not, however, dispose of the Pozsgais’ second statutory argument — that the Corps’ wetlands regulation represents an impermissible construction .of the unambiguous statutory term “water.” B. In asserting the term “water” as used in the Clean Water Act is unambiguous, the Pozsgais seek to bring this ease within the exception to the rule of deference to an agency’s statutory interpretation established by Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, courts should not defer to an agency regulation where legislative language is unambiguous because Congress has chosen to define precisely the statutory meaning and has left no implicit or explicit gap in statutory coverage for the agency to fill. 467 U.S. at 843-44, 104 S.Ct. at 2781-82. Where, on the other hand, a statute is “silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s [regulation addressing the issue] is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. at 2781. Thus, Chevron commands a two-step approach. The court first determines whether the statute is clear, and if it is unclear, the court decides whether the agency’s construction is reasonable. N.L.R.B. v. New Jersey Bell Telephone Co., 936 F.2d 144, 147 (3d Cir.1991). Applying Chevron in Riverside Bayview, the Supreme Court squarely rejected the contention that “water” cannot mean “wetlands.” Like the Pozsgais, the defendant in Riverside Bayview sought to place fill materials on its property without a Clean Water Act permit in preparation for a construction project, and the Corps of Engineers obtained an injunction against the filling. The defendant contended the Corps’ regulation extending the permit requirement to adjacent wetlands exceeded the bounds of the Clean Water Act. Rejecting this contention, the Court determined not only that the phrase “water” lacked a fixed meaning, 474 U.S. at 132, 106 S.Ct. at 462, but also that the Corps “acted reasonably in interpreting the Act to require permits for the discharge of fill material into wetlands adjacent to the ‘waters of the United States,’” id. at 139, 106 S.Ct. at 465. In urging Congress’ use of the term “water” forecloses application of the Act to their activities, the Pozsgais insist the word “water” means “the liquid state of H20,” not “wetlands” or “moist soil” or “dry land that the Corps determines to be water.” In Riverside Bayview, the Supreme Court took a different view, stating: On a purely linguistic level, it may appear unreasonable to classify “lands,” wet or otherwise, as “waters.” Such a simplistic response, however, does justice neither to the problem faced by the Corps in defining the scope of its authority under § 404(a) nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat. In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs — in short, a huge array of areas that, are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of “waters” is far from obvious. ■ 474 U.S. at 132, 106 S.Ct. at 462. Having determined the term “water” was ambiguous, the Court then moved to Chevron’s second step and considered whether the Corps’ interpretation of the term to include adjacent wetlands was reasonable. The Court noted that, in determining “the landward limit of Federal jurisdiction under Section 404 [of the Clean Water Act] must include any adjacent wetlands that form the border of or are in reasonable proximity to other waters of the United States,” the Corps concluded that “water moves in hydro-logic cycles, and the pollution of [adjacent wetlands] ... will affect the water quality of the other waters within that aquatic system.” Riverside Bayview, 474 U.S. at 134, 106 S.Ct. at 463 (quoting 42 Fed.Reg. 37128 (1977)). Upholding this interpretation, the Court recognized “the evident breadth of congressional concern for protection of water quality and aquatic ecosystems” embodied in the Act, 474 U.S. at 133, 106 S.Ct. at 462, and determined: “[w]e cannot say that the Corps’ conclusion that adjacent wetlands are inseparably bound up with the ‘waters’ of the United States— based as it is on the Corps’ and EPA’s technical expertise' — is unreasonable,” id. at 134, 106 S.Ct. at 463. The Pozsgais attempt to distinguish Riverside Bayview on the ground that the Court based its ruling on the “navigable waters” definition rather than the “into water” phrase. But as we have shown, “navigable waters” is the operative phrase. Moreover, as the quoted passage indicates, the Supreme Court’s analysis dealt with a question common to both statutory phrases — whether the Corps reasonably interpreted the term “water” to include adjacent wetlands. The rationales underlying Chevron apply with particular force to the Corps’ application of the Clean Water Act to wetlands. In Chevron, the Court defended deference to agency interpretations on the grounds that unlike a court, an agency has specialized knowledge of the relevant statutory area and is a politically accountable body. 467 U.S. at 865, 104 S.Ct. at 2792 (“[jjudges are not experts in the field, and are not part of either political branch of the Government”); see Cass R. Sunstein, Law and Administration after Chevron, 90 Colum.L.Rev. 2071, 2086-87 (1990). The Chevron Court indicated these rationales are particularly powerful where “the regulatory scheme is technical and complex.” 467 U.S. at 865, 104 S.Ct. at 2792. Like the Clean Air Act in Chevron, the Clean Water Act addresses a scientifically complicated subject, and has an intricate regulatory structure. Thus, the Supreme Court recognized in Riverside Bayview: In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps’ ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act. 474 U.S. at 134, 106 S.Ct. at 463; see also Arkansas v. Oklahoma, — U.S.-,-, 112 S.Ct. 1046, 1061, 117 L.Ed.2d 239 (1992) (reversing Court of Appeals decision to invalidate Clean Water Act permit issued by EPA because that court failed to defer to EPA’s interpretation of its water quality regulation and therefore “made a policy choice that it was not authorized to make”); Chemical Manufacturers Ass’n v. Natural Resources Defense Council, 470 U.S. 116, 125, 105 S.Ct. 1102, 1107, 84 L.Ed.2d 90 (1985) (deferring to EPA interpretation of Clean Water Act because “EPA’s understanding of this very ‘complex statute’ is a sufficiently rational one to preclude a court from substituting its judgment for that of EPA,” and citing Chevron ). The Chevron Court’s concern that agencies have political, accountability, which courts lack, also supports deference to the Corps’ wetlands regulation. In articulating this rationale, the Court reasoned: [t]he arguments over policy that are advanced in the parties’ briefs create the impression that respondents are now waging in a judicial forum a specific policy battle which they ultimately lost in the agency and in the 32 jurisdictions opting for the “bubble concept,” but one which was never waged in the Congress. Such policy arguments are more properly addressed to legislators or administrators, not to judges____ In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. 467 U.S. at 864-66, 104 S.Ct. at 2792-93. The regulation the Pozsgais challenge here represents the product of a nearly twenty-year policy battle over the scope of federal wetlands protection. The Corps initially interpreted the term “navigable waters” to apply only to those waters “subject to the ebb and flow of the tide,” the regulatory definition used by the Corps under the River and Harbor Act of 1899. The Environmental Protection Agency, which shared administrative authority under the Clean Water Act with the Corps, believed the Act should be construed to cover wetlands because of their significance to water pollution control. This fight culminated in a 1975 court decision ordering the Corps to revise and broaden its regulation. Natural Resources Defense Council v. Callaway, 392 F.Supp. 685 (D.D.C.1975). Following this decision, the Corps revised its regulation, a process which lasted two years, engendered more than 4,500 comments, and resulted in a final rule defining the term “navigable waters” to include wetlands. 42 Fed.Reg. 37122 (1977). Nonetheless, during the debate on the Clean Water Act of 1977, “because of the pressure of many farm, forestry and land development groups, there were continued efforts to amend the Act to redefine the term “navigable waters” in a more traditional and restrictive sense____ None passed.” Avoyelles Sportsmen’s League, Inc. v. Alexander, 511 F.Supp. 278, 288 (W.D.La.1981), aff'd, 715 F.2d 897 (5th Cir.1983). Thus, the Avoyelles court concluded, “[w]etlands is a jurisdictional term, the product of the legislative process, of political pressure groups.” 511 F.Supp. at 288; see also Riverside Bayview, 474 U.S. at 138, 106 S.Ct. at 465 (citing Congress’ refusal to limit the definition of “navigable waters” in the 1977 Act as “additional support for a conclusion that Congress in 1977 acquiesced in the Corps’ definition of waters as including adjacent wetlands”). The Pozsgais acknowledge the Corps’ wetlands jurisdiction continues to be the subject of heated political debate. They note “numerous Congressional hearings have been held,” and 52 bills introduced in Congress, to address the regulation of wetlands. Indeed, the dispute over the scope of federal wetlands regulation has been at least as dominant a feature of the political landscape as the debate over the “bubble concept” at issue in Chevron. And like the plaintiffs opposed to EPA’s “bubble” regulation in Chevron, the Pozsgais seek here to “wag[e] in a judicial forum a specific policy battle which [was] ultimately lost in the agency.” 467 U.S. at 864, 104 S.Ct. at 2792. But as the Supreme Court stated last term, “[i]t is not our role ... to decide which policy choice is the better one, for it is clear that Congress has entrusted such decisions” to the Corps of Engineers. Arkansas v. Oklahoma, — U.S. at -, 112 S.Ct. at 1061. Therefore, we hold that the Clean Water Act’s use of the word “water,” both as part of the “into water” phrase in the definition of “pollutant” and in the phrase “navigable waters,” pose no statutory obstacle to the Corps regulation under which the district court found the Poz-sgais liable. IV. The Pozsgais also contend the wetlands on their property fell outside the scope of the Corps regulation prohibiting unpermitted discharge on adjacent wetlands. In disputing application of the regulation to their activities, the Pozsgais make two arguments, one based on the evidence, the other based on the terms of the regulation. In the evi-dentiary argument, the Pozsgais maintain the government failed to prove their wetlands are “adjacent” within the meaning of the regulation. A. The regulation grants the Corps jurisdiction over “waters of the United States,” defined in 33 C.F.R. § 328.3(a) to include: “[a]ll waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce,” § 328.3(a)(1); “tributaries of [these] waters,” § 328.3(a)(5); and “wetlands adjacent to [these] waters [or their tributaries],” § 328.-3(a)(7). Applying this regulation, the district court found the Pozsgais discharged into wetlands (§ (a)(7)), which were “adjacent” to a stream on the Pozsgais’ property which was a “tributary of the Pennsylvania Canal” (§ (a)(5)). The Canal, in turn, flowed into the Delaware River, which, the court ruled, satisfied the requirement that the Pennsylvania Canal .is, was, or could be used in interstate commerce (§ (a)(1)). We review these factual findings under the clearly erroneous standard. Sheet Metal Workers Int’l Assn. Local 19 v. 2300 Group, Inc., 949 F.2d at 1278. The Pozsgais dispute the stream is a tributary of the Pennsylvania Canal. In making this finding, the district court relied on aerial photographs and testimony from Corps biologist Miller. The government has since conceded the photographs are inaccurate. But the government also introduced other evidence which the Pozsgais have not contested. The eyewitness accounts of two Corps biologists, Martin Miller and Michael Claffey, recorded in Miller’s report of his investigation of the property in April 1987, and in Claffey’s affidavit, confirm the stream is a tributary of the Pennsylvania Canal. Given this uncon-tradicted evidence, we believe the district court’s finding was not clearly erroneous. The Pozsgais also dispute that the Pennsylvania Canal is, was, or could be used in interstate commerce. The district court reached this conclusion by noting the Canal flowed into the Delaware River, which it believed was enough to satisfy the broad reach of the Clean Water Act. The Pozsgais argue that this fact, without more, does not establish the Canal itself was, is, or could be used in interstate commerce. Even if time, this argument is unavailing, because the government has pointed to other evidence supporting the conclusion the Canal in the past was used in interstate commerce, which satisfies the terms of § 328.3(a)(1). The government requests that we take judicial notice of the Canal’s historic significance as an interstate commerce route. It cites Robert McCullough & Walter Leuba, The Pennsylvania Main Line Canal (1960), and C.P. Yoder, Delaware Canal Journal (1972), two history books which discuss the Canal’s nearly 100-year history as a shipping route for coal and other commodities. Under Fed.R.Evid. 201, we may take judicial notice of any fact “not subject to reasonable dispute in that it is ... capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” Fed.R.Evid. 201(b). Furthermore, because “judicial notice may be taken at any stage of the proceeding,” Fed.R.Evid. 201(f), we may take judicial notice of a fact although the district court did not. The Pozsgais dispute neither that an appellate court may take judicial notice nor that the history books cited by the government are suitable sources for judicial notice. Instead, they contend only that the books do not prove that the Pennsylvania Canal was ever used in interstate commerce. We disagree. A cursory review of The Pennsylvania Main Line Canal and Delaware Canal Journal reveals the Canal’s important role as a shipping route carrying coal in interstate commerce. In the middle of the century, the Canal consistently carried more than half a million tons of coal per year, reaching its peak volume with 792,000 tons of coal in 1866. Many of the coal barges served the Philadelphia market. Others continued on to New York City, after being towed by steam boats across the Delaware River to Borden-town, New Jersey, where they reached the Delaware and Raritan Canal. In 1939, the Delaware Division Canal Company donated the entire canal property to the Commonwealth of Pennsylvania, which established Roosevelt State Park. In recognition of its vital role in “providing a convenient and economic means of transporting coal to Philadelphia, New York and the eastern seaboard,” the Canal was designated a National Historic Landmark in 1976. United States Army Corps of Engineers, Preliminary Case Report for Neshaminy Water Resources Authority, Point Pleasant Diversion Project, Point Pleasant, Bucks County, Pennsylvania § 2.1 at 7 (1982). This is at least as much evidence of an effect on interstate commerce as that found to satisfy this jurisdictional requirement in prior similar cases. See Quivira Mining Co. v. United States E.P.A., 765 F.2d 126, 130 (10th Cir.1985) (non-navigable creeks and “arroyos” affect interstate commerce because during times of “intense rainfall” there could be a surface connection between these waterways and navigable streams), cert. denied, 474 U.S. 1055, 106 S.Ct. 791, 88 L.Ed.2d 769 (1986); United States v. Ashland Oil and Transportation Co., 504 F.2d 1317, 1329 (6th Cir.1974) (Act constitutionally applies to discharge of oil into non-navigable tributary three waterways removed from navigable river). In so holding, these courts recognized Congress’ intent to give the term “navigable waters” the “broadest possible constitutional interpretation.” Ashland Oil, 504 F.2d at 1324 (citing 118 Cong. Rec. 33756-57 (1972) (statement of Representative Dingell)); Quivira Mining, 765 F.2d at 129. The Pozsgais maintain these cases are distinguishable as both involved discharge into waterways rather than wetlands. But this is a distinction without a difference in light of the Corps’ regulation, which equates adjacent wetlands with waterways. B. The Pozsgais also contend the regulation does not apply because the government failed to establish their discharge affected interstate commerce. The regulations require proof of an effect on interstate commerce, they argue, because their wetlands are “essentially isolated.” In coining the term “essentially isolated,” the Pozsgais seek to take this case outside Riverside Bayview, where the Supreme Court expressly reserved the question whether the Act authorized the Corps to regulate wetlands not “adjacent to open bodies of water.” Id. 474 U.S. at 131 n. 8, 106 S.Ct. at 461 n. 8. They also use the term “essentially isolated” in an effort to bring their wetlands within the section of the regulation governing “isolated” wetlands. That section conditions application of the' permit requirement to “isolated” wetlands on a showing of a site-specific impact on interstate commerce. 33 C.F.R. § 328.3(a)(3). The Pozsgais assert their wetlands are “essentially isolated” because they are “above the headwaters,” the term “headwaters” being defined as “the point on a non-tidal stream above which the average annual flow is less than five cubic feet per second.” 33 C.F.R. § 330.2(b). They note the regulation contains Nationwide Permit 26, which exempts the “discharge of dredged or fill materials” into wetlands above the headwaters from the individual permit requirement provided the discharger meets certain conditions. 33 C.F.R. § 330.5(a)(26). Establishment of this nationwide permit, the Pozsgais claim, reflects the Corps’ policy judgment that these “essentially isolated” wetlands are the functional equivalent of isolated wetlands. Therefore, they conclude, an individualized showing of an interstate commerce effect is required to subject their “essentially isolated” wetlands to the Clean Water Act. The Corps’ decision to establish a nationwide permit for discharge of fill material into wetlands above the headwaters apparently reflects the agency’s expert judgment that these wetlands pose less of a water pollution concern than do certain other wetlands. See 33 C.F.R. § 320.1(a)(3) (justifying the nationwide permit program as “the primary method of eliminating unnecessary federal-control over activities which do not justify individual control or which are adequately regulated by another agency”). But Nationwide Permit 26 hardly suggests wetlands above the headwaters are environmentally insignificant, as it conditions discharge on a water quality certification from the state in which the wetlands are located, 33 U.S.C. § 1341(a)(1) and 33 C.F.R. §§ 330.5(b)(11), 330.9(b)(3), and requires written notification to the Corps prior to discharge, 33 C.F.R. §§ 330.5(a)(26), 330.-7(b). Moreover, the Pozsgais’ contention that discharge into wetlands above the headwaters may only be regulated upon the showing of a specific effect on interstate commerce is foreclosed by § 328.3, in which the Corps distinguished for interstate commerce purposes between adjacent and isolated wetlands, and did not treat separately wetlands above the headwaters. Where, as here, the Pozsgais’ wetlands are both above the headwaters and adjacent, only the latter characteristic matters for interstate commerce purposes. An explanatory statement issued by the Corps upon promulgation of the final regulation supports this conclusion: “[w]e emphasize that the- “headwaters” concept used in this new regulation.... is not to be construed as the point beyond which a stream ceases to be a water of the United States.....” 47 Fed.Reg. 37129 (1977). The Pozsgais’ claim that their wetlands are “essentially isolated” thus reduces to an attack on the “adjacency” regulation upheld in Riverside Bayview. But the use of the adjective “essentially” cannot convert the Poz-sgais’ “adjacent” wetland to an “isolated” wetland. This transparent effort to rewrite the regulation, like the Pozsgais’ argument that the term “water” cannot mean “wetlands,” is a policy question properly put to Congress or the Corps. See Riverside Bayview, 474 U.S. at 134, 106 S.Ct. at 463 (“[w]e cannot say that the Corps’ conclusion that adjacent wetlands are inseparably bound up with the “waters” of the United States— based as it is on the Corps’ and the EPA’s technical expertise — is unreasonable”); Chevron, 467 U.S. at 866, 104 S.Ct. at 2793. Accordingly, because the wetlands here qualify as “adjacent” within the meaning of the regulation, the government was not required to prove that “the use, degradation or destruction of [the Pozsgais’ wetlands] could affect interstate commerce,” 33 C.F.R. § 328.3(a)(3), in order to subject the Pozsgais to liability under the Clean Water Act. Under the regulation, the requisite interstate commerce nexus was established because the wetlands were adjacent to a tributary of a waterway formerly used in interstate commerce. 33 C.F.R. § 328.3(a)(1), (7). V. We now consider the Pozsgais’ argument that the Corps’ adjacent wetlands regulation as applied to them violates the Commerce Clause because the regulation does not require proof of a specific effect on interstate commerce from the Pozsgais’ filling, and because wetlands above the headwaters, as a class of wetlands, do not significantly affect interstate commerce. We review challenges to Congress’ exercise of its Commerce Clause power under a deferential standard. We will uphold application of the law if there is a “rational basis” for the congressional determination that the regulated activity “affects interstate commerce,” and if the means chosen to regulate the activity are reasonable. Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 276, 101 S.Ct. 2352, 2360, 69 L.Ed.2d 1 (1981); United States v. Frame, 885 F.2d 1119, 1126 (3d Cir.1989), cert. denied, 493 U.S. 1094, 110 S.Ct. 1168, 107 L.Ed.2d 1070 (1990). In contending the Constitution requires an individualized effect on interstate commerce, the Pozsgais rely on cases construing other federal statutes — the Sherman Act, the Hobbs Act, the federal arson statute, and two federal labor statutes — which do require an individualized showing. But these cases demonstrate only that in those statutes, Congress chose to satisfy the Commerce Clause by requiring an individualized interstate commerce effect in each application of the law. The Clean Water Act, by contrast, handles the interstate commerce nexus differently. Under the Act, the Corps, acting under its statutorily delegated authority to establish the permit program, 33 U.S.C. § 1344, has determined that wetlands which are adjacent to tributaries of waters usable or formerly used in interstate commerce themselves affect interstate commerce. Several other Courts of Appeal have upheld this regulation against constitutional attack on the ground that congressional regulation of water pollution is permissible under the Commerce Clause, United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir.1979), United States v. Tull, 769 F.2d at 185, United States v. Ashland Oil, 504 F.2d at 1325, and the Supreme Court has upheld this reasoning. Hodel, 452 U.S. at 282, 101 S.Ct. at 2363 (“we agree with the lower federal courts that have uniformly found the power conferred by the Commerce Clause broad enough to permit congressional regulation of activities causing air or water pollution”). The Pozsgais seek to distinguish these cases, contending the challenged activities in each of them involved “substantial effects” on interstate commerce, and arguing the government established no such effects here. But even assuming Congress’ Commerce Power is circumscribed by a “substantiality” requirement, the Pozsgais misapply this standard. In contending their discharge activities did not have substantial effects on interstate commerce, the Pozsgais ignore the well-settled principle that “[w]here the class of activities is regulated and that class is within the reach of the federal [commerce] power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.” Perez v. United States, 402 U.S. 146, 154, 91 S.Ct. 1357, 1361, 28 L.Ed.2d 686 (1971) (quoting Maryland v. Wirtz, 392 U.S. 183, 193, 88 S.Ct. 2017, 2022, 20 L.Ed.2d 1020 (1968)). The Pozsgais claim this so-called “cumulative effect” principle is inapplicable because wetlands above the headwaters, as a “class of activities,” do not substantially affect interstate commerce. But the only evidence they offer in support of this argument is the Corps’ decision to regulate these wetlands under Nationwide Permit 26. As discussed above, however, by the regulation’s terms, this classification has no significance for interstate commerce purposes. The Pozsgais also argue the cumulative effect principle has no application to wetlands generally. In announcing this principle to hold that federal production quotas could constitutionally be applied to a farmer who grew wheat for his own consumption in Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), the Supreme Court stressed that in the aggregate, home consumption of wheat competed with wheat grown for sale and therefore affected interstate commerce. The Pozsgais contend that discharge into wetlands cannot be similarly aggregated because their filling activities cannot be added to filling activities in California or Texas which involve other aquatic systems. This reasoning is factually and legally flawed. In factual terms, it ignores that discharge by other property owners into wetlands above the headwaters within the same aquatic system as the Pozsgais clearly should be aggregated with the Pozsgais’ discharge to determine the amount of pollution in that system. As a legal matter, we find no language in Wickard or its progeny requiring a showing of local or regional aggregation. Indeed, it would be illogical to impose such a requirement on the Corps of Engineers in the course of making national water pollution policy. The regulation reflects the Corps’ expert determination that, in the aggregate, discharge into wetlands above the headwaters which are adjacent to tributaries of waters used or usable in interstate commerce, increases water pollution. It matters not whether the increase is substantial in a particular region, or just in the nation as a whole. Compare Perez v. United States, 402 U.S. at 155, 91 S.Ct. at 1362 (finding Wickard applies to loan sharking, a $350 million per year national business, without discussing cu-mulation of particular transactions in regional or local credit markets). For these reasons, we hold that application of the Corps’ wetlands regulation to the Pozsgais’ discharge activities did not violate the Commerce Clause. VI. We now turn to the Pozsgais’ appeal from various orders entered by the district court during the course of this litigation. The Pozsgais contend the district court’s contempt order was defective because, although labeled as “civil” contempt, the order was in fact “criminal” contempt. The two types of contempt differ in important respects. Civil contempt is remedial in nature, serving to coerce compliance with a court order or to compensate the other party for losses sustained due to noncompliance. By complying with the order, a civil contemnor can purge the contempt. Criminal contempt, by contrast, is a punitive sanction, designed to vindicate the court’s authority for the eontem-nor’s past non-compliance with a court order, and therefore cannot be cured by the con-temnor. Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 631-32, 108 S.Ct. 1423, 1429, 99 L.Ed.2d 721 (1988); 11 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2960 at 583-85 (1973). The purpose and nature of the sanction, rather than the label attached to it, determine whether it is civil or criminal. Hicks, 485 U.S. at 631, 108 S.Ct. at 1429. The two types of contempt also have different burdens of proof. Civil contempt must be proved by “clear and convincing” evidence, Quinter v. Volkswagen of America, 676 F.2d 969, 974 (3d Cir.1982), while criminal contempt must be proved beyond a reasonable doubt, Hicks, 485 U.S. at 632, 108 S.Ct. at 1429. To be valid, a criminal contempt proceeding must comport with Federal Rule of Criminal Procedure 42(b), which requires such proceedings to be “prosecuted on notice ... stat[ing] the time and place of hearing, allowing a reasonable time for the preparation of -the defense, ... stat[ing] the essential facts constituting the criminal contempt, and describing] it as such.” Here, the district court found Pozsgai in contempt for his past violations of the TRO against filling on the property, and ordered him to pay $5,000 within 48 hours or be put in jail. Although the order contains aspects of civil contempt, two significant features convince us it qualifies as criminal contempt. First, it was retroactive in nature, seeking to penalize previous violations. Second, it was punitive rather than remedial, because it did not compensate the government, but rather sought to vindicate the authority of the Court to enjoin Pozsgai from continuing his filling activities. We believe the court afforded Poz-sgai the protections necessary for a valid finding of criminal contempt. The Pozsgais contend the district court’s failure to label' the contempt as criminal in the hearing notice violated Rule 42(b), that this error was compounded by the government’s request for “civil” contempt in its petition for an order to show cause, and that these errors render the proceeding invalid. We disagree. The government’s petition for an order to show cause specifically enumerated past violations for which it sought contempt sanctions. Additionally, the government expressly requested not only that Pozsgai be incarcerated until he complied with the TRO, a civil contempt sanction, but also requested that he be incarcerated five days for each prior violation and fined $25,000 for each continued violation. Because the government sought a retroactive sanction, we believe its petition put Pozsgai on notice of the criminal nature of the contempt proceeding. Additionally, we do not believe Pozsgai was prejudiced by the timing of the notice. The Supreme Court has held a district court’s failure to label a contempt proceeding as criminal in the hearing notice is grounds for reversal only when the failure causes “substantial prejudice” to the defendant resulting from his lack of awareness that the proceeding is criminal. United States v. United Mine Workers of America, 330 U.S. 258, 297-98, 67 S.Ct. 677, 697-98, 91 L.Ed. 884 (1947). Pozsgai has not argued, nor presented any evidence, that “a more explicit motion ... would have aided him in the preparation of his defense.” United States v. Partin, 524 F.2d 992, 999 (5th Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1493, 47 L.Ed.2d 753 (1976). His defense consisted entirely of testimony denying he had violated the TRO. The court chose not to believe him, expressly finding “beyond any doubt whatsoever” not only that Pozsgai knew of the post-TRO dumping but also that it occurred with his approval. The videotape recording this activity provided overwhelming support for this conclusion. Accordingly, we will affirm the district court’s order of contempt. The Pozsgais’ final claims concern the district court’s restoration order, which directed removal of fill material from the wetlands portion of the Pozsgais’ property and redeposit of the material on the non-wetlands portion of the property. The Poz-sgais object to the order on three grounds: (1) that it violates Fed.R.Civ.P. 65(d)’s standards for injunctive remedies because it fails to describe specifically the area of the property to be restored; (2) that the order itself was an abuse of discretion given the small degree of harm caused by the discharge and his financial inability to comply with it; and (3) that the court was wrong to deny the Pozsgais’ Fed.R.Civ.P. 60(b) motion for relief from the restoration order seeking control over where on then.' propei’ty the restoration of the fill would take place. With respect to the particularity of the restoration order, we note the injunction anticipated further negotiation between the Pozsgais and the government regarding the restoration plan, and that such negotiation has taken place, most recently in the parties’ August 15, 1991 stipulation to a new map detailing the wetland areas to be restored. We reject the Pozsgais’ contention that the restoration order was inequitable because of the small degree of harm caused by their discharge and their financial inability to comply with the order. The undisputed facts demonstrating the Pozsgais’ repeated noncompliance with the Act and with the Corps’ directives to stop filling foreclose any such equitable argument. Finally, we consider the Pozsgais’ motion for relief from judgment, in which they seek control to determine the location on the property where the material is redeposited. Denying the motion, the district court found it would be inequitable to give the Pozsgais such veto power — particularly now that the haulers have completed their work — because the Pozsgais caused the improper filling and refused to remedy the condition. We agree fully with this reasoning. Accordingly, we believe the district court did not abuse its discretion in fashioning the restoration order. VII. For the foregoing reasons, we will affirm the judgment of the district court. ORDER Aug. 10, 1993. The Court treats appellants’ counsel’s letter of July 8, 1993, as a petition for panel rehearing and a motion to amend the opinion dated June 25, 1993. The motion to amend is denied, and the petition for panel rehearing is denied. . The regulations only cover wetlands adjacent to tributaries of waters used in interstate commerce and nonadjacent wetlands which may af-feet interstate commerce. 33 C.F.R. § 328.-3(a)(3), (7) (1992). . The district court had jurisdiction under the civil enforcement provision of the Clean Water Act, 33 U.S.C. § 1319(b) (1988). . No criminal action was brought against Gizella Pozsgai. . The haulers, having completed their work, are not parties to this appeal. . We have jurisdiction under 28 U.S.C. § 1291 (1988). We exercise plenary review over the district court’s interpretation of the Clean Water Act and its regulations, which are questions of federal law. United States v. Gordon, 961 F.2d 426, 429 (3d Cir.1992). We review the court's factual findings under a clearly erroneous standard. Fed.R.Civ.P. 52(a); Sheet Metal Workers Int'l Ass'n Local 19 v. 2300 Group, Inc., 949 F.2d 1274, 1278 (3d Cir.1991). We review the court’s grant of injunctive relief, its contempt order, and its denial of the Pozsgais’ motion for relief from the judgment for abuse of discretion. Delaware Valley Citizens’ Council v. Pennsylvania, 755 F.2d 38, 41 (3d Cir.), cert. denied, 474 U.S. 819, 106 S.Ct. 67, 88 L.Ed.2d 54 (1985). . The Pozsgais further contend that subsection (12) seeks to limit subsection (6) by adding the requirement that the discharge be from a "point source.” Assuming this is correct, it does not help them. The Act defines "point source" to include “any discernible, confined and discrete conveyance, including but not limited to any ... container, rolling stock, concentrated animal feeding operation, or vessel ... from which pollutants are or may be discharged....” Id. § 1362(14). Courts have consistently held that dump trucks and bulldozers, such as those used for depositing and spreading fill on the Pozsgais' property, qualify as "point sources.” Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 922 (5th Cir.1983); Matter of Alameda County Assessor’s Parcel, 672 F.Supp. 1278, 1284-85 (N.D.Cal.1987); United States v. Tull, 615 F.Supp. 610, 622 (E.D.Va.1983), aff’d, 769 F.2d 182 (4th Cir.1985), rev’d on other grounds, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987); United States v. Weisman, 489 F.Supp. 1331, 1337 (M.D.Fla.1980). . Other courts considering wetlands filling cases have similarly interpreted the Act to prohibit discharge of pollutants into navigable waters, thus ignoring the "into water” component of the “pollutant” definition. See Town of Norfolk v. U.S. Army Corps of Engineers, 968 F.2d 1438, 1445 (1st Cir.1992); Avoyelles Sportsmen's League, 715 F.2d at 922; United States v. Tull, 769 F.2d at 183; United States v. Larkins, 657 F.Supp. 76, 78 n. 2 (W.D.Ky.1987), aff'd, 852 F.2d 189 (6th Cir.1988), cert. denied, 489 U.S. 1016, 109 S.Ct. 1131, 103 L.Ed.2d 193 (1989); United States v. Lambert, 589 F.Supp. 366, 371 (M.D.Fla.1984); United States v. Bradshaw, 541 F.Supp. 880, 883 (D.Md.1981) (all ruling that discharge of fill material into wetlands violates the Clean Water Act). . The Pozsgais also rely on Nationwide Permit 26 as a separate defense to their unpermitted discharge, arguing the nationwide permit obviated the need for an individual permit. As did the district court, we reject this argument because the Pozsgais did not comply with the required procedures for the use of Nationwide Permit 26. Specifically, they failed to obtain a water quality certification from the State of Pennsylvania, as required by 33 U.S.C. § 1341(a)(1) and 33 C.F.R. §§ 330.5(b)(11), 330.9(b)(3), and failed to provide the Corps with pre-discharge notification for the use of Nationwide Pejrmit 26 mandated by 33 C.F.R. §§ 330.5(a)(26), 330.7(b). The Pozsgais’ failure to comply with the procedural requirements of Nationwide Permit 26 does not, however, foreclose them from arguing that regulation of their wetlands is permissible only upon the showing of an effect on interstate commerce. . As its text indicates, the regulation requires proof only that certain types of events could affect interstate commerce if they occurred in the particular isolated wetland, not, as the Pozsgais contend, proof that a particular discharge into that wetland could affect interstate commerce. . This test also applies where a party challenges a regulation promulgated by an agency acting under its statutorily delegated authority. See United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir.1979)'(upholding Corps' wetlands regulation against Commerce Clause challenge). . The regulations reveal the Corps gave serious consideration to this issue. The interim final regulation issued on July 25, 1975, excluded waters and wetlands above the headwaters from the category of "waters of the United States” and therefore from the Act's coverage, except upon the District Engineer’s specific determination that regulation of these waters "was necessary to protect water quality.” 42 Fed.Rcg. 37129. In the final regulations, issued two years later, in response to "comments and criticisms ... concerning ... the legality of excluding waters in rivers and streams above the headwaters from the definition of waters of the United States,” the Corps decided to regulate waters and wetlands above the headwaters through the nationwide permit mechanism rather than by excluding them from the definition of covered waters. Id. We cannot say the Corps did not have a rational basis for this determination. Cf. Riverside Bayview, 474 U.S. at 134, 106 S.Ct. at 463 (Corps' determination that "waters of the United States” include adjacent wetlands was reasonable because it was based on Corps’ and EPA’s technical expertise). . In view of our disposition on the merits of the Pozsgais’ appeal, we need not and do not reach the government’s contention that John Pozsgai is collaterally estopped from raising these issues because they were resolved against him on his criminal conviction. . We note the government’s petition and the court's order to show cause provided Pozsgai with the essential facts underlying its request for contempt sanction. United States v. Onu, 730 F.2d 253, 257 (5th Cir.), cert. denied, 469 U.S. 856, 105 S.Ct. 182, 83 L.Ed.2d 116 (1984). The order to show cause gave Pozsgai notice of the time and place of the hearing, and the court scheduled a hearing a week after the order, which was a reasonable time to prepare a defense. United Mine Workers, 330 U.S. at 296, 67 S.Ct. at 697 (order to show cause can serve notice function of Rule 42(b)); United States v. Powers, 629 F.2d 619, 625 (9th Cir.1980) (fiveday notice period allowed for hearings in Fed.R.Crim.P. 45(d) adequate preparation time for purposes of Rule 42(b)). . In the same vein, the Pozsgais appeal the temporary restraining order, arguing the court failed to "set forth reasons” as required by Fed.R.Civ.P. 65(d). The TRO states it was "upon consideration of the government’s motion,” and states that defendants "are immediately ordered to cease and desist from discharging fill material onto the site” and "ordered to cease and desist their further violation of the Clean Water Act, 33 U.S.C. § 1311(a).” We believe that under the circumstances of this case, the court's statement gave the Pozsgais adequate notice of the grounds for the TRO.

Hoffman Homes, Inc. v. Administrator, United States Environmental Protection Agency

MANION, Circuit Judge. The Environmental Protection Agency, pursuant to section 309 of the Clean Water Act, 33 U.S.C. § 1319(g), imposed an administrative penalty of $50,000 on Hoffman Homes, Inc. for discharging “dredged or fill materials” into “navigable waters” without a permit in violation of sections 301 and 404 of the Clean Water Act, 33 U.S.C. §§ 1311 and 1344. Hoffman admits that it filled an 0.8 acre, intrastate wetland area without a permit. Hoffman appeals, however, arguing that the Clean Water Act does not give the EPA regulatory authority over the wetland. The EPA claims jurisdiction over the intrastate wetland solely on the ground that migratory birds could, potentially, use the wetland as a place to feed, or nest or as a stopover on the way to the Gulf States for the winter months. Because this goes beyond the limits of the Clean Water Act and the Commerce Clause, we reverse. I. The relevant facts in this case are not in dispute. Hoffman owns a 43-acre parcel of land in Hoffman Estates, Illinois, which it developed into a housing subdivision known as “Victoria Crossings.” In preparation for construction of Victoria Crossings, Hoffman filled and graded parts of the site, including an 0.8 acre, bowl-shaped depression at the northeast border of the site. Before it was filled by Hoffman, this small depression was lined with relatively impermeable clay so that rain water could not drain off quickly and would collect in the bottom. The EPA found that the bowl-shaped depression, known as “Area A,” was an intrastate wetland. Area A had no surface or groundwater connection to any other body of water. It did not perform sediment trapping or flood control functions for any body of water, was not used for industrial or fishing purposes and was not visited by interstate travelers for recreational or other purposes. In fact, there is not even any evidence that migratory birds, or any other wildlife, actually used Area A for any purpose. In March 1986, an employee of the Army Corps of Engineers drove by the Victoria Crossings site and noticed that construction had begun. The Corps investigated the site and determined that Hoffman had violated the Clean Water Act (the “Act”) by placing fill material into Area A. The Corps issued a cease and desist order requiring Hoffman to stop filling Area A and to apply for an after-the-fact permit. Hoffman stopped filling the wetlands and applied for a permit. Because of objections from the EPA, however, the Corps refused to issue a permit, and in December 1987, the EPA issued a Compliance Order pursuant to section 309(a) of the Act, 33 U.S.C. § 1319(a). The order stated that Hoffman had filled wetlands without a permit in violation of section 301 of the Act, 33 U.S.C. § 1311, ordered Hoffman to cease its filling activities and required that Hoffman restore Area A in accordance with EPA-approved plans. In January 1988, the EPA filed an administrative complaint against Hoffman to enforce the Compliance Order and assess administrative penalties. After a lengthy evidentiary hearing, the Administrative Law Judge (“AU”) held that Area A was a wetland within the meaning of the Clean Water Act and EPA regulations. The AU concluded, however, that the EPA did not have authority to regulate Area A. The AU held that Area A was not subject to regulation under the Clean Water Act because it had no effect on interstate commerce. The EPA appealed, and the EPA Chief Judicial Officer (“CJO”) reversed the AU’s decision. The CJO held that the EPA has statutory authority to regulate discharges of fill materials into intrastate wetlands that have a “minimal, potential effect” on interstate commerce. The CJO then found that the EPA established this minimal, potential effect on interstate commerce by showing that migratory birds could potentially use Area A. The CJO fined Hoffman $50,000 for filing Area A. Hoffman appeals this decision arguing that the EPA does not have regulatory authority over Area A. II. Section 404 of the Act prohibits any discharge of dredged or fill materials into “navigable waters” without a permit; it does not mention “wetlands.” See 33 U.S.C. § 1344. “Navigable waters” is defined in the Act as “waters of the United States.” 33 U.S.C. § 1362(7). There is no further guidance in the Act as to what “navigable waters” or “waters of the United States” includes. The EPA, however, has promulgated regulations which further define “waters of the United States.” The EPA regulations define “waters of the United States” to include three types of wetlands: (1) interstate wetlands, 40 C.F.R. 2309.3(s)(2); (2) wetlands adjacent to other “waters of the United States,” 40 C.F.R. 230.3(s)(7); and (3) intrastate, non-adjacent wetlands, “the use, degradation, or destruction of which could affect interstate or foreign commerce,” 40 C.F.R. § 230.3(s)(3). Area A is an intrastate, non-adjacent (or “isolated”) wetland. According to the EPA definition of “waters of the United States,” therefore, the EPA has jurisdiction over such an isolated wetland if “the use, degradation, or destruction” of the wetland “could affect interstate commerce.” The EPA’s regulatory construction of the Clean Water Act “is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress.” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131, 106 S.Ct. 455, 461, 88 L.Ed.2d 419 (1985) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104. S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984)). Accordingly, we must decide whether it is reasonable — in light of the language, policies and legislative history of the Clean Water Act — for the EPA to exercise jurisdiction over intrastate, isolated wetlands. Section 404 of the Clean Water Act and the definition of “navigable waters” as “waters of the United States” originated as part of the Federal Water Pollution Control Act Amendments of 1972. The only guidance as to the meaning of “navigable waters” and “waters of the United States” in the legislative history of the 1972 Amendments is the oft-repeated sentence: “The Conferees fully intend that the term ‘navigable waters’ be given the broadest possible constitutional interpretation.” See H.K.Rep. No. 92-911, p. 131 (1972); S.Conf. Rep. No. 92-1236, p. 144 (1972), reprinted in, 1972 U.S.Code Cong. & Admin.News 3668, 3776, 3822; 118 Cong.Rec. 33692, 33699 (1972) (Oct. 4, 1972 Senate Debate, statement of Senator Muskie); 118 Cong. Rec. 33756-57 (1972) (Oct. 4, 1972 House Debate, statement of Rep. Dingell). There is no mention of wetlands in the legislative history of the 1972 Amendments, however. In fact, the only specific examples in the legislative history of the types of “waters” that the Clean Water Act was intended to cover are actual waters: lakes, streams, rivers, tributaries, and the territorial seas. See S.Rep. No. 92-414, p. 77 (1972), reprinted in, 1972 U.S.Code Cong. & Admin.News 3668, 3742-43; 118 Cong.Rec. 33692, 33699 (1972) (Oct. 4, 1972 Senate Debate, statement of Senator Muskie); 118 Cong.Rec. 33756-57 (1972) (Oct. 4, 1972 House Debate, statement of Rep. Dingell). Thus, there is no indication in the 1972 legislative history that “waters” — no matter how broadly interpreted — include wetlands. Nonetheless, relying primarily on the above snippet from the legislative history, some circuits, including this one, have concluded that Congress' grant of authority under the Clean Water Act extends to all waters, and their adjacent wetlands, within constitutional reach under the Commerce Clause. See United States v. Tull, 769 F.2d 182, 184 (4th Cir.1985), rev’d on other grounds, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987); United States v. City of Fort Pierre, 747 F.2d 464, 465 (8th Cir.1984); United States v. Lambert, 695 F.2d 536, 538 (11th Cir.1983); United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir.1979). See also National Wildlife Federation v. Consumers Power Co., 862 F.2d 580, 589 (6th Cir.1988) (impoundment of waters); Utah v. Marsh, 740 F.2d 799, 802 (10th Cir.1984) (intrastate lake). No circuit, however, has concluded that section 404 jurisdiction extends to wetlands which are not adjacent to “waters of the United States.” In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), the Supreme Court affirmed the view that section 404 jurisdiction extends to adjacent wetlands. The Court focused on the stated purpose of the Clean Water Act “ ‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’ ” Id. at 132, 106 S.Ct. at 462 (quoting section 101 of the Clean Water Act, 33 U.S.C. § 1251). The Court found that Congress intended the Clean Water Act to protect “aquatic ecosystems” and that this intent “demand[s] broad federal authority to control pollution, for ‘[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source.’ ” Id. at 132-33, 106 S.Ct. at 462 (quoting S.Rep. No. 92-414, p. 77 (1972)). Adjacent wetlands, the Court noted, function to prevent flooding, to prevent erosion, and to filter and purify water draining into adjacent bodies of water. Id. at 134, 106 S.Ct. at 463. Thus, “wetlands adjacent to navigable waters do as a general matter play a key role in protecting and enhancing water quality.” Id. at 133, 106 S.Ct. at 462. Protection of adjacent wetlands, therefore, furthers the stated objective of the Clean Water Act. Because wetlands adjacent to “waters of the United States” are an “integral part of the aquatic environment,” the Court concluded that the Corps of Engineers' regulation extending section 404 jurisdiction to adjacent wetlands {see supra, n. 5) was a reasonable interpretation of the Clean Water Act. Id. at 135, 106 S.Ct. at 463. This case involves non-adjacent, or isolated, wetlands. Although the Court in Riverside stated that “Congress chose to define the waters covered by the Act broadly,” id. at 133, it did not hold that section 404 jurisdiction extends to isolated wetlands. Id. at 131, n. 8, 106 S.Ct. at 461, n. 8. The Supreme Court’s reasoning in Riverside leads to the conclusion that the Clean Water Act does not give the EPA authority to regulate isolated wetlands. Isolated wetlands, unlike adjacent wetlands, have no hydrological connection to any body of water. By their very definition, isolated wetlands have no relationship or interdependence with any other body of water. Thus, isolated wetlands, like Area A, are not part of an aquatic ecosystem and do not control floods or pollution in other bodies of water. Protection of isolated wetlands, therefore, would not further the objective of the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The EPA argues that the legislative history of the Federal Water Pollution Control Amendments of 1977 supports the position that section 404 jurisdiction extends to isolated wetlands. In 1977, both the House and the Senate passed bills to amend the Clean Water Act, and there were efforts in both bodies to limit section 404 jurisdiction. The House bill (H.R. 3199) amended section 404 to apply to “navigable waters and adjacent wetlands” and limited the definition of “navigable waters” to “waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce.” H.R.Rep. No. 95-139, pp. 44-45 (1977). By excluding waters not actually or potentially navigable, this proposed definition of navigable waters was even less inclusive than the definition previously used by the Army Corps of Engineers. Id. at 23-24. In the Senate, during the debate over the Senate bill amending the Clean Water Act (S. 1952), an identical amendment was introduced but rejected. 123 Cong.Rec. 26710-26729 (1977) (August 4, 1977 Senate Debate; amendment # 726, introduced by Sen. Bent-sen). The bill that was finally reported out of conference, and passed, excluded the more restrictive language and thus did ,not amend the scope of the section 404 permit authority. H.R.Conf.Rep. No. 95-830, pp. 37-44 (1977), reprinted at 1977 U.S.Code Cong. & Admin.News 4424, 4472-80. We hesitate to attribute any level of significance to Congress’ failure to amend section 404. The views of the 95th Congress in 1977 regarding the extent of the section 404 permit authority established by the 92d Congress in 1972 are, at best, very questionable evidence of the intent of Congress in 1972. Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 110 S.Ct. 2668, 2678, 110 L.Ed.2d 579 (1990) (“But subsequent legislative history is a ‘hazardous basis for inferring intent of an earlier’ Congress.”). However, the Supreme Court in Riverside examined the 1977 legislative history and found it significant to the issue of whether the Act covers adjacent wetlands. The Court noted that Congress’ rejection of the proposed limits to section 404 jurisdiction was based “in large part [on] its concern that protection of wetlands would be unduly hampered by a narrowed definition of ‘navigable waters.’ ” Riverside, 474 U.S. at 137, 106 S.Ct. at 464. The Court also found it significant that “even those who would have restricted the reach of [section 404] jurisdiction would have done so not by removing wetlands altogether from the definition of ‘waters of the United States,’ but only by restricting the scope of ‘navigable waters’ under section 404 to waters navigable in fact and their adjacent wetlands.” Id. at 137, 106 S.Ct. at 464 (emphasis in original). The Court stated that the 1977 legislative history provides “additional support for a conclusion that Congress in 1977 acquiesced in the Corps’ definition of waters as including adjacent wetlands.” Id. at 138, 106 S.Ct. at 465 (emphasis added). The Supreme Court in Riverside did not state that the legislative history to the 1977 Amendments provides support for the extension of the section 404 permit authority to isolated wetlands, and we do not believe that it does. As the Supreme Court recognized in Riverside, the debate in 1977 was about narrowing the definition of “navigable waters” to exclude waters not navigable in fact. Critics, of the proposed changes were opposed to leaving non-navigable waters and their adjacent wetlands unprotected. See, e.g., 123 Cong.Rec. 10405 (1977) (statement of . Rep. McKinney) (“Limiting the definition of wetlands to navigable waterways would have severe implications on efforts to keep our present wetlands intact_”); 123 Cong.Rec. 10416 (1977) (statement of Rep. Bonior) (“I would like the same protection for other wetlands along smaller bodies of water which are presently not used for commerce although they may have been in the past.”). A “narrower definition of ‘navigable waters,’ ” opponents of the amendment argued, “would exclude vast stretches of crucial wetlands from the Corps’ jurisdiction, with detrimental effects on wetland ecosystems, water quality, and the aquatic environment generally.” Riverside, 474 U.S. at 136, 106 S.Ct. at 464. There was no suggestion that section 404 jurisdiction should extend to wetlands not adjacent to open bodies of water. There is no mention of isolated wetlands in the 1977 legislative history. Rather, the congressmen who opposed the proposed changes discussed the important functions of adjacent wetlands and the need to protect such wetlands. For example, in the House, Representative Bonior stated: Under this definition of ‘navigable waters’ only wetlands adjacent to navigable waters would be protected by the act. Wetlands are one of this Nation’s largest resources because they provide a natural filtration system for our waterways, and the sedimentation process, and provide a spawning ground for a huge variety of fish and waterfowl. Wetlands are a very fragile resource which is constantly in danger of being eliminated by dredge and fill operations and contractor’s quests for more land. This valuable, fragile resource must be protected. Yet under this definition of ‘navigable waters,' 90 percent of this Nation’s wetlands would not be protected. Wetlands are especially necessary for the filtration of waterways near large urban areas where the pollution is the worst. Many of the waterways near urban centers are not navigable and their wetlands would not be protected under this bill. 123 Cong.Rec. 10416 (1977). Senator Baker also noted that wetlands provide natural treatment of. pollutants and protection from floods, and stated: I might add that if we did not have those wetlands, the cost of abating pollution in this country by industry and municipalities wouid be enormously increased because of the additional costs that would be required by the technology to take the place of what nature has provided us. 123 Cong.Rec. 26718 (1977). See also 123 Cong.Rec. 10415 (1977) (statement of Rep. Lehman) (“wetlands provide free of charge $140 billion worth of flood protection and water purification services”); 123 Cong. Rec. 26716-17 (1977) (statement of Sen. Chafee) (wetlands “retard the flow of water from the land and thus reduce the opportunities for flooding,” “prevent erosion” and “serve to purify the water by filtering out and absorbing silt, nutrients, and pollutants that otherwise would enter into domestic water supplies”). Only adjacent wetlands, of course, have these important attributes. Thus, even in 1977, Congress was only concerned with protecting wetlands adjacent to waters of the United States. Neither the Clean Water Act nor its legislative history, either in 1972 or 1977, mention isolated wetlands. Further, both the stated policy of the Act and the legislative history demonstrate that Congress did not intend the Act to protect isolated wetlands. The stated policy of the Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. The legislative history merely documents this section’s concern for maintaining the ecological balance of our nation’s waters. Wetlands which are adjacent to open bodies of water control pollution and flooding in those waters, thus contributing to maintaining “the chemical, physical, and biological integrity of the Nation’s waters.” Accordingly, although it is difficult to say “wetlands” are “waters,” the Supreme Court in Riverside held that adjacent wetlands are within the scope of the Act. But, wetlands which are not adjacent to open bodies of water, isolated wetlands, do not control pollution or flooding of any waters. Isolated wetlands do not contribute to maintaining “the chemical, physical, and biological integrity of the Nation’s waters.” Accordingly, they are not within the scope of the Act. The EPA’s construction of section 404 to include authority over isolated wetlands, including Area A, is unreasonable. 40 C.F.R. § 230.-3(s)(3), as it applies to isolated wetlands, is contrary to the Act and therefore invalid. III. Despite our conclusion that the Clean Water Act does not regulate isolated wetlands, we still must address this court’s previous statement in United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir.1979), that Congress intended the Clean Water Act to regulate “all the ‘navigable waters’ within its constitutional reach” under the Commerce Clause. The Byrd case involved only adjacent wetlands; we held that adjacent wetlands were within “constitutional reach.” The court in Byrd, however, was not faced with defining the outer limits of section 404 jurisdiction and did not decide that Congress intended to regulate isolated wetlands. Nonetheless, the court did state that “the legislative history of the Amendments establishes that Congress wanted to give the term ‘navigable waters’ the ‘broadest possible constitutional interpretation.- ” Id. (quoting S.Conf.Rep. No. 92-1236, p. 144 (1972)). Even if Congress did intend to regulate all “navigable waters,” including all wetlands, within its constitutional reach under the Commerce Clause, however, the EPA’s claim of authority to regulate Area A is unreasonable if Area A is beyond that constitutional reach. The issue thus becomes: Is Area A within constitutional reach under the Commerce Clause? See Id. at 1209 (“Given a Congressional intent to extend its water pollution regulations to all ‘navigable waters’ within its constitutional reach, the next step is to determine whether the particular regulations at issue fall within that reach.”). We believe that Area A is not within the reach of the Commerce Clause; this is a second reason for reversing the EPA’s decision. The Constitution grants Congress the power “[t]o regulate Commerce ... among the several States_” Art. I, § 8, cl. 3. Despite the language of the Commerce Clause, “[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among states.” United States v. Darby, 312 U.S. 100, 118, 61 S.Ct. 451, 459, 85 L.Ed. 609 (1941). Rather, the Commerce Clause power has been broadly interpreted to extend to “the regulation through legislative action of activities intrastate which have a substantial effect on the commerce or the exercise of the Congressional power over it.” Id. at 119-20, 61 S.Ct. at 460. See also Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 358, 13 L.Ed.2d 258 (1964) (“Thus the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce.”); . Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 89, 87 L.Ed. 122 (1942) (“But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce_”). Further, “[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.” Perez v. United States, 402 U.S. 146, 154, 91 S.Ct. 1357, 1361, 28 L.Ed.2d 686 (1971) (quoting Maryland v. Wirtz, 392 U.S. 183, 193, 88 S.Ct. 2017, 2022, 20 L.Ed.2d 1020 (1968)). In addition, our review of congressional action pursuant to the Commerce Clause is “relatively narrow.” Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 276, 101 S.Ct. 2352, 2360, 69 L.Ed.2d 1 (1981). “[W]hen Congress has determined that an activity affects interstate commerce, the courts need inquire only whether the finding is rational.” Id. at 277, 101 S.Ct. at 2360. “A court, may invalidate legislation enacted . under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce.... ” Hodel v. Indiana, 452 U.S. 314, 323-24, 101 S.Ct. 2376, 2383, 69 L.Ed.2d 40 (1981). However, “there are constitutional limits on the power of Congress to regulate pursuant to the Commerce Clause.” Virginia Surface Mining, 452 U.S. at 309, 101 S.Ct. at 2390 (Rehnquist, J., concurring). “Some activities may be so private or local in nature that they simply may not be in commerce.” Id. at 310, 101 S.Ct. at 2391. See also Katzenbach v. McClung, 379 U.S. 294, 302, 85 S.Ct. 377, 383, 13 L.Ed.2d 290 (1964) (“The activities that are beyond the reach of Congress are those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general power of the government.”) (citation omitted). “Moreover, simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.” Virginia Surface Mining, 452 U.S. at 311, 101 S.Ct. at 2391 (Rehnquist, J., concurring). Congress’ findings are reviewable and should not merely be rubber-stamped by the courts. To support its regulation of Area A, the EPA relies on the following sentence from Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 282, 101 S.Ct. 2352, 2363, 69 L.Ed.2d 1 (1981): Finally, we agree with the lower federal courts that have uniformly found the power conferred by the Commerce Clause broad enough to permit congressional regulation of activities causing air or water pollution, or other environmental hazards that may have effects in more than one State. Despite the broad language of this quote, Virginia Surface Mining does not support the EPA’s position that the Commerce Clause is broad enough to permit regulation of Area A. In Virginia Surface Mining, the Supreme Court discussed how the pollution (in that case, surface mining activities) affected interstate commerce. The Court quoted extensively from congressional findings on the adverse impact of surface coal mining on interstate commerce, see id. at 277-80, 101 S.Ct. at 2361-62, and concluded, “we cannot say that Congress did not have a rational basis for concluding that surface coal mining has substantial effects on interstate commerce.” Id. at 280, 101 S.Ct. at 2362. The lower court cases which the Supreme Court cited in Virginia Surface Mining also upheld regulations of pollution under the Commerce Clause because the pollution affected interstate commerce. The first case cited by the Supreme Court in Virginia Surface Mining is this circuit’s opinion in United States v. Byrd, 609 F.2d 1204 (7th Cir.1979), holding that the Commerce Clause power is broad enough to allow Congress to regulate adjacent wetlands. The defendant in Byrd had been enjoined from filling the waters and adjacent wetlands of Lake Wawasee, Indiana. Id. at 1205. Lake Wawasee is “a 2,500 to 3,000 acre fresh water lake used by interstate travelers and seasonal residents for water-related recreational purposes.” Id. The defendant in Byrd argued that Congress lacked authority under the Commerce Clause to regulate the wetlands adjacent to Lake Wawasee. Id. at 1209-11. The court rejected this argument, noting, as did Congress in the legislative history and the Supreme Court in Riverside, that destruction of the adjacent wetlands would “degrad[e] the water quality of the lake.” Id. at 1210. If Lake Wawasee was polluted, interstate travelers would no longer use the lake thus affecting interstate commerce: The recreational use of inland lakes has a significant impact on interstate commerce, as is testified to by the number of out-of-state visitors to Lake Wawasee in particular. The value of these lakes depends, in part, on the purity of their water for swimming, or the abundance of fish and other wildlife inhabiting them or the surrounding wetland and land areas. The Corps, among other authorities, has come to recognize the importance of wetlands adjacent to lakes in preserving the biological, chemical, and physical integrity of the lakes they adjoin. Destruction of all or most of the wetlands around Lake Wawasee, for example, could significantly impair the attraction the lake holds for interstate travelers by degrading the water quality of the lake, thereby indirectly affecting the flow of interstate commerce. Id. at 1210. The court concluded, therefore, “that Congress constitutionally may extend its regulatory control of navigable waters under the Commerce Clause to wetlands which adjoin or are contiguous to intrastate lakes that are used by interstate travelers for water-related recreational purposes.” Id. The Supreme Court in Virginia Surface Mining also cited United States v. Ashland Oil & Transportation Co., 504 F.2d 1317 (6th Cir.1974). In that case, Ashland Oil was fined $500 for discharging oil into Little Cypress Creek, a tributary of a navigable stream. The Sixth Circuit upheld the 1972 Amendments to the Clean Water Act over a Commerce Clause attack noting the many interstate commerce effects of polluting navigable streams: Obviously water pollution is a health threat to the water supply of the nation. It endangers our agriculture by rendering water unfit for irrigation. It can end the public use and enjoyment of our magnificent rivers and lakes for fishing, for boating, and for swimming. These health and welfare concerns are, of course, proper subjects for Congressional attention because of their many impacts upon interstate commerce generally. But water pollution is also a direct threat to navigation — the first interstate commerce system in this country’s history and still a very important one. Id. at 1325-26. Utah v. Marsh, 740 F.2d 799 (10th Cir.1984), decided after Virginia Surface Mining, reached the same conclusion as Byrd and Ashland Oil. In Marsh, the State of Utah sought a declaration that the Army Corps of Engineers did not have regulatory authority over Utah Lake. Id. at 801. Utah Lake, with a surface area of 150 square miles, is the largest freshwater lake in Utah. Id. at 800. The Utah Lake State Park, owned and. operated by the State of Utah, is located on the east shore of the lake. The State of Utah argued that “the reach of congressional power under the Commerce Clause does not extend to Utah Lake because that lake has no navigable connection in interstate commerce and the lake, by itself, does not affect interstate commerce.” Id. at 803. The Tenth Circuit rejected this argument and concluded that “the discharge of dredged or fill material into Utah Lake by plaintiff or others could well have a substantial economic effect on interstate commerce.” Id. In support of its conclusion, the court listed the extensive interstate activities supported by the waters of Utah Lake: Waters from Utah Lake are used to irrigate crops which are sold in interstate commerce, and the lake supports the State’s most valuable warm water fishery which markets most of the catch out of state. The lake also provides recrea-tionists with opportunities to fish, hunt, boat, water ski, picnic, and camp, as well as the opportunity to observe, photograph, and appreciate a variety of bird and animal life; nonresident visitation at the lake has averaged 6,919 persons per year, or 2% of total visitation over the 1967-1980 period. Such interstate movement of travelers has been held to be within the reach of the Commerce Clause. Finally, the lake is on the flyway of several species of migratory waterfowl which are protected under international treaties. Id. at 803-04 (citations omitted). These cases, and Virginia Surface Mining, state only that the Commerce Clause is broad enough to allow regulation of perceived pollution that “may have effects in more than one state” — that is, pollution that affects interstate commerce. See also United States v. Tull, 769 F.2d 182, 185 (4th Cir.1985), rev’d on other grounds, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987) (following Virginia Surface Mining and Byrd). The case law leaves little doubt that tributaries of navigable waters, intrastate waters which are used to irrigate crops, support a fishery, or are visited by interstate travelers, and wetlands adjacent to such waters may be regulated under the Commerce Clause. Polluting such waters and their adjacent wetlands affects interstate commerce. In this case, however, the EPA has not even attempted to construct a theory of how filling Area A affects interstate commerce. And, no evidence on the record would support any such theory. For example, there is no evidence that filling Area A would affect navigation. There is no evidence that filling Area A would pollute another open body of water used for irrigation, fishing or recreational activities. There is no evidence that interstate travelers visited Area A (and it is hard to imagine any . purpose for their doing so). In Marsh, one of the many perceived impacts on interstate commerce was the ability of people to observe and appreciate a variety of bird and animal life; also, Utah Lake was a “flyway” for migratory waterfowl protected under international treaties. Not only is there no evidence that interstate travelers came to Area A to watch or photograph birds protected by an international treaty, there is no evidence that migratory birds of any feather ever actually used Area A. Rather, the EPA claims jurisdiction solely because migratory birds could, potentially, use Area A. Since creation (of the states), migratory birds have flown interstate. But this annual traverse by itself does not affect commerce. The birds obviously do not engage in commerce. Until they are watched, photographed, shot at or otherwise impacted by people who do (or, we suppose, have the potential to) engage in interstate commerce, migratory birds do not ignite the Commerce Clause. The idea that the potential presence of migrating birds itself affects commerce is even more far-fetched. No federal court has ever held that the mere presence of wildlife — actual or potential, interstate or intrastate — is enough to invoke the Commerce Clause power. In Douglas v. Seacoast Products, Inc., 431 U.S. 265, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977), the Supreme Court held that a Virginia licensing statute which prohibited non-citizens from fishing commercially in state waters was preempted by a federal licensing statute regulating fishing in state waters. During its discussion of the preemption issue, the Supreme Court noted that the Commerce Clause was broad enough “to regulate the taking of fish in state waters.” Id. at 281-82, 97 S.Ct. at 1750. But, the Court did not uphold the constitutionality of the licensing scheme just because fish were swimming in the waters. Rather, the Court stated that the power to regulate exists “where there is some effect on interstate commerce.” “The movement of vessels from one State to another in search of fish, and back again to processing plants, is certainly activity which Congress could conclude affects interstate commerce.” Id. at 282, 97 S.Ct. at 1750. In other words, the “taking” of the fish by people fishing interstate (not the fish themselves) activated the Commerce Clause. A similar conclusion was reached by the Ninth Circuit in United States v. Helsley, 615 F.2d 784 (9th Cir.1979). Helsley involved a challenge to the Airborne Hunting Act, 16 U.S.C. § 742j — 1, which prohibits hunting for any bird, fish or other animal “while airborne in an aircraft.” The court held that the federal statute was a proper exercise of the Commerce Clause power because Congress was “acting to promote safety in an artery of commerce.” Id. at 787. The court relied on the effect airborne hunting has on commerce. The birds were incidental. The law’s purpose was to “regulate for the safety of the national air space.” Id. Thus, although the wildlife attracted the airborne hunters, it was the hazard the hunters created, not the presence of the birds, that justified the law. The Endangered Species Act, 16 U.S.C. § 1531 et seq., which prohibits the importing, exporting, taking, selling, and transporting of endangered species, was upheld against a Commerce Clause attack in Palila v. Hawaii Dept. of Land and Natural Resources, 471 F.Supp. 985 (D.Ha.1979), aff'd, 639 F.2d 495 (9th Cir.1981). Even in this case, directly involving the regulation of wildlife, the court did not rely on the mere presence of animals, interstate or intrastate. Rather, the court pointed to the interstate commerce effects of protecting endangered species: “In this context, a national program to protect and improve the natural habitats of endangered species preserves the possibilities of interstate commerce in these species and of interstate movement of persons, such as amateur students of nature or professional scientists who come to a state to observe and study these species, that would otherwise be lost by state inaction.” Id. at 995. The court concluded that the state’s program of preserving herds of “wild” sheep and goats which destroyed the habitat of an endangered bird constituted an unlawful “taking” of the bird by the state. Id. Thus, in these Commerce Clause precedents, the government has come forward with some connection, no matter how tenuous, with human activity. In this case, however, the EPA has not even attempted to put forth any theory about how filling Area A affects interstate human activity. There is no evidence of interstate visitors or any adverse impact on interstate commerce in migratory birds. Area A was not used for hunting or fishing. The EPA has presented no relevant authority for its position that the mere presence, or potential presence, of wildlife is sufficient to invoke the Commerce Clause power. Without such authority, and without evidence connecting Area A with some human economic activity, we cannot hold that filling Area A has any effect on interstate commerce. Thus, “it is clear that there is no rational basis,” see Hodel, 452 U.S. at 323-24, 101 S.Ct. at 2383, for Congress to have found that filling Area A affected interstate commerce. Area A is not within constitutional reach under the Commerce Clause. IV. To summarize, the EPA’s regulation of Area A is beyond the limits of the Commerce Clause and the Clean Water Act. There is nothing in the Clean Water Act, congressional findings, or the record to suggest that the filling of Area A has any effect on interstate commerce. Hoffman’s filling of this 0.8 acre, isolated “wetland” is a purely local activity. The EPA has provided evidence of only one interstate connection: Area A is a potential landing site for migratory birds. Although we recognize that the Commerce Clause power is broad, it has never been extended to reach all areas in (much less those only potentially in) migratory bird flyways. Such an extension, we believe, “ ‘would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.’ ” Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 309, 101 S.Ct. 2352, 2390, 69 L.Ed.2d 1 (1981) (Rehnquist, J., concurring) (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 624, 81 L.Ed. 893 (1937)). After all, what area of the United States is not a potential landing spot for migratory birds? The Commerce Clause, at the very least, requires some connection to human commercial activity. It does not allow regulation of animals just because they are animals which we want to protect. Commerce is a uniquely human activity; thus, Congress, or the EPA, must demonstrate some human impact before the Commerce Clause comes into play. The EPA has not even attempted to show any human impact in this case, and Area A, therefore, is outside of the reach of the Commerce Clause power. Even if the Commerce Clause allowed regulation of Area A, the Clean Water Act does not give the EPA authority over Area A. The legislative history of the Clean Water Act indicates that Congress intended to protect the “aquatic ecosystems” of this nation’s waters. But Area A is an intrastate, isolated wetland. Such wetlands are not part of aquatic ecosystems and protection of them would not further the stated policy of the Act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The Clean Water Act is not a comprehensive wildlife protection statute. Although the Act mentions wildlife as an important result of controlling pollution, the purpose of the Act is to restore and maintain clean water, not to conserve wildlife. Congress can act to conserve this country’s wildlife and has demonstrated its ability to do so. The United States Code is filled with statutes, enacted as early as 1918, explicitly designed to conserve this country’s wildlife, including migratory birds. Statutes such as the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq:, and the Endangered Species Act, 16 U.S.C. § 1531 et seq., make it unlawful to hunt, take, kill, sell, ship, import or export certain species of wildlife. Several statutes explicitly authorize the Secretary of the Interior to acquire land for migratory bird refuges. See, e.g., 16 U.S.C. § 690 et seq. (Bear River Migratory Bird Refuge Act); 16 U.S.C. § 691 et seq. (Cheyenne Bottoms Migratory Bird Refuge Act); 16 U.S.C. § 695 et seq. (The Migratory Waterfowl and Other Wildlife Refuge in California Act); 16 U.S.C. § 715 et seq. (The Migratory Bird Conservation Act). Wetlands, too, are protected in federal conservation statutes. The Water Bank Act, 16 U.S.C. § 1301 et seq., authorizes the Secretary of Interior to enter agreements with private landowners to preserve wetlands. The landowners agree not to drain, fill or otherwise destroy wetlands they own in exchange for an annual payment from the federal government. Such statutes have been upheld as proper exercises of the Treaty Power and the Property Clause. In Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920), the Supreme Court upheld the Migratory Bird Treaty Act which prohibited the killing, capturing or selling of any migratory bird included in the terms of a migratory bird treaty with England. The Court stated that “[i]f the treaty is valid there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of government.” Id. at 432, 40 S.Ct. at 383. In Kleppe v. New Mexico, 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976), the Supreme Court upheld a statute authorizing the Secretary of the Interior to protect wild free-roaming horses and burros on public lands as a proper exercise of congressional power under the Property Clause. The Court stated that “the Property Clause also gives Congress the power to protect wildlife on the public lands, state law notwithstanding.” Id. at 546, 96 S.Ct. at 2295 (citations omitted). See also North Dakota v. United States, 460 U.S. 300, 310, 103 S.Ct. 1095, 1101, 75 L.Ed.2d 77 (1983) (“In the absence of federal legislation to the contrary, the United States unquestionably has the power to acquire wetlands for waterfowl production areas, by purchase or condemnation, without state consent.”). Regulating privately-owned land pursuant to the Commerce Clause as a means to protect the environment, including wildlife, is of relatively recent origin. Until the 1970’s, the federal government’s conservation efforts relied primarily on the Treaty Power and the Property Clause. Perhaps the reliance on the Commerce Clause is the result of the Supreme Court’s jurisprudence constricting application of the Takings Clause. See, e.g., Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987); Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980); Penn Central Transportation Co. v. New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). However, after the Supreme Court decides Lucas v. South Carolina Coastal Council, 404 S.E.2d 895 (1991), cert. granted, — U.S. -, 112 S.Ct. 436, 116 L.Ed.2d 455 (Nov. 18, 1991), argued March 2, 1992, the federal government or, more accurately, taxpayers, might be forced to bear the cost of our national conservation efforts, rather than imposing such costs on fortuitously chosen landowners like Hoffman Homes, Inc. V. For the foregoing reasons, the petition for review of the final decision of the Environmental Protection Agency is GRanted, and the EPA’s order, as far as it requires Hoffman Homes to pay a $50,000 administrative penalty for the filling of Area A, is Vacated. . The EPA defines wetlands as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” 40 C.F.R. 230.3(t). The EPA found that Area A was a wetland because it had wetland hydrology (it was inundated with water a sufficient period of time), had a hydric soil (Peotone soil), and supported hydrophytic vegetation (cattails). Hoffman does not challenge this finding on appeal. .The Army Corps of Engineers and the EPA share responsibility for administering and enforcing the Clean Water Act. The EPA has authority to seek penalties for discharge of pollutants into waters of the United States without a permit in violation of 33 U.S.C. § 1311. The EPA can issue an order requiring compliance with the Act, 33 U.S.C. § 1319(a)(3), can bring a civil action for an injunction and penalties, 33 U.S.C. § 1319(b), or may seek administrative penalties, 33 U.S.C. § 1319(g). The Army Corps of Engineers has authority to issue permits to discharge dredged or fill materials into waters of the United States. 33 U.S.C. § 1344(a). In issuing such permits, the Corps applies guidelines established by the EPA. 33 U.S.C. § 1344(b). The Corps also has authority to enforce violations of these permits. 33 U.S.C. § 1344(s). The EPA, however, has a veto power over the issuance of permits when it determines, after consulting with the Corps, that the dredging or fill materials “will have an unacceptable adverse effect on municipal water supplies, shellfish beds ... wildlife, or recreational areas.” 33 U.S.C. § 1344(c). . Prior to the EPA’s filing of the administrative complaint, Hoffman filed an action in district court seeking review of the Compliance Order. That action was dismissed as an impermissible pre-enforcement review of agency action, and this court affirmed. Hoffman Group, Inc. v. Environmental Protection Agency, 902 F.2d 567 (7th Cir.1990). . The proceedings below also involved a 4.8 acre area on the southern and western borders of the Victoria Crossings site, known as "Area B." Area B is adjacent to and a drainageway for the Schaumburg Branch of Poplar Creek. Poplar Creek is connected to the Fox River which is a tributary of the Illinois River. Both the ALJ and the CJO determined that Area B was a wetland and that Hoffman filled Area B without a permit. Hoffman was fined $50,000 for filling Area B: Hoffman does not appeal the finding that Areas A and B were wetlands, the finding that it filled those areas without a permit, or the $50,000 penalty assessed for the filling of Area B. . The EPA regulation defines "waters of the United States” as follows: (s) The term "waters of the United States” means: (1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) All interstate waters including interstate wetlands; (3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate' or foreign commerce including any such waters: (i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or (ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or (iii) Which are used or could be used for industrial purposes by industries in interstate commerce; (4) All impoundments of waters otherwise defined as waters of the United States under this definition; (5) Tributaries of waters identified in paragraphs (s)(l) through (4) of this section; (6) The territorial sea; (7)Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(l) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States. 40 C.F.R. § 230.3(s). The Corps definition of "waters of the United States,” 33 C.F.R. § 328.2, is identical. . As noted above, the CJO held that the EPA regulation, 40 C.F.R. 230.3(s)(3), requires only "potential, minimal effect" on interstate commerce and that potential use by migratory birds satisfies this requirement. The CJO's interpretation of the regulation is entitled to even more deference than the EPA’s regulatory construction of the Clean Water Act. Wisconsin Electric Power Co. v. Reilly, 893 F.2d 901, 907 (7th Cir.1990) ("Further, we defer even more to an agency’s construction of its own regulation.”). However, because we conclude that the regulation— so far as it purports to give the EPA jurisdiction over intrastate, isolated wetlands — is not a reasonable interpretation of the Clean Water Act, we need not decide whether the CJO’s "potential, minimal effect” test is a reasonable interpretation of the regulation. . The Supreme Court also cited with approval a series of cases holding that Congress has authority under the Commerce Clause to regulate air pollution. This conclusion is based on the congressional finding that the movement of pollutants in air and across state lines interferes with interstate commerce. See, e.g., United States v. Bishop Processing Co., 287 F.Supp. 624, 629-32 (D.Md.1968), aff’d, 423 F.2d 469 (4th Cir.), cert. denied, 398 U.S. 904, 90 S.Ct. 1695, 26 L.Ed.2d 63 (1970). . The EPA also cites Leslie Salt Co. v. United States, 896 F.2d 354 (9th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 1089, 112 L.Ed.2d 1194 (1991), which arguably supports its position. Leslie Salt involved a dispute about the Corps’ jurisdiction under the Clean Water Act over intrastate waters. The court stated, in dicta and without explanation, that "[t]he commerce clause power, and thus the Clean Water Act, is broad enough to extend the Corps’ jurisdiction to local waters which may provide habitat to migratory birds.” Id. at 360 (citing Marsh and Palila). Two cases involving the Rivers and Harbors Act, which were not cited by the EPA, could also be stretched to support the EPA’s arguments. In United States v. Stoeco Homes, Inc., 498 F.2d 597 (3d Cir.1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975), the defendant was enjoined from filling a lagoon on the coast of New Jersey. The court stated, also in dicta and without explanation, that "undoubtedly Congressional legislative power under the Commerce Clause would be broad enough to encompass federal regulation of any activities affecting the marine ecology." Id. at 607. In Zabel v. Tabb, 430 F.2d 199 (5th Cir.1970), cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971), landowners sued to compel the Corps to issue a permit allowing them to fill part of the navigable waters in Coca-Ciega Bay near St. Petersburg, Florida. Although the point was not contested by the parties, the court stated, without explaining, that “the destruction of fish and wildlife in our estuarine waters does have a substantial, and in some areas a devastating, effect on interstate commerce.” Id. at 204. These cases are obviously distinguishable, from this case on the facts. Further, the broad statements in the cases are perfunctory dicta made without any analysis, and therefore, we do not give them any weight. . In fact, when attempting to answer this question at oral argument, the EPA admitted that migratory birds would land and drink from a puddle in the median of a highway, thus, presumably, allowing regulation of the puddle under the EPA’s broad reading of the Commerce Clause. Although the EPA magnanimously conceded that it would not have authority over such a puddle because it would not classify as a wetland, this answer does not in any way restrict the limitless scope of the Commerce Clause power under the EPA’s interpretation. . The Migratory Bird Treaty Act has subsequently been amended to include treaties with Mexico, Japan and the U.S.S.R. 16 U.S.C. § 703. . Article II, § 2 of the Constitution states, in part, that "The President ... shall have Power, by and with the Advice and Consent of the Senate, to make Treaties...." Article I, § 8 gives Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States," including laws to execute valid treaties. .The Property Clause, Article IV, § 3, cl. 2, gives Congress the power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." . See, e.g. L. Gordon Crovitz, Justices Have No Reason to Fear Private Property, Wall St J., Nov. 27, 1991, at All ("The Takings Clause, if enforced, would stop endless debates about wetlands, timber inhabited by spotted owls, landmark designations and rent control. All these could be regulated — but only if taxpayers decide it’s worth compensating the owners, who would have less reason to object."). . The part of the EPA order requiring Hoffman Homes to pay a $50,000 administrative penalty for filling Area B was not appealed to this court and is not affected by this decision.

Holy Cross Wilderness Fund v. Madigan

STEPHEN H. ANDERSON, Circuit Judge. The central question in this case is whether the Army Corps of Engineers violated the National Environmental Policy Act (“NEPA”) and section 404 of the Clean Water Act (“CWA”) when it issued a permit to allow construction of the Homestake II water project in the Holy Cross Wilderness Area, located in the White River National Forest outside Denver, Colorado pri- or to the completion of studies designed to develop a plan to mitigate any adverse impact on wetlands in the Wilderness Area. The appellant contends as follows: (1) the Corps violated NEPA when it issued its section 404 permit on the basis of an inadequate Final Environmental Impact Statement (“FEIS”) which did not discuss mitigation measures and by failing to supplement the FEIS after obtaining additional information disputing certain of its conclusions; and (2) the Corps violated the CWA and various implementing regulations when it issued the permit before all environmental studies were completed and subjected to a full public interest review. The Fund seeks an order invalidating the permit and enjoining the Corps from issuing a new permit until the Corps prepares a supplemental EIS and conducts a “proper” public interest review under the CWA. The district court held there was no NEPA or CWA violation and dismissed the complaint. We affirm. The crux of our holding is that, in the face of considerable conflicting expert views as to the probable impacts of the Project on Wilderness Area wetlands, the Corps’ decision to issue the permit with the specific condition that there would be no wetlands losses, and with the requirement that a long-term monitoring and mitigation plan be implemented, was not arbitrary or capricious or in violation of any applicable regulations. BACKGROUND The Homestake II project is the second phase of a long-term water development project designed to provide the Colorado cities of Colorado Springs and Aurora (the “Cities”) with additional water. It involves the diversion of water from the Cross Creek and Fall Creek drainages in the Wilderness Area to the Homestake Reservoir through a series of surface diversion structures and underground tunnels. Plaintiff Holy Cross Wilderness Defense Fund is a private non-profit organization formed for the express purpose of protecting the Wilderness Area. The Wilderness Area is an area so designated by Congress under the Colorado Wilderness Act, Title I of Public Law 96-560, 94 Stat. 3266 and to be managed under the Wilderness Act, 16 U.S.C. §§ 1131-1136. The Homestake II project is, however, exempt from the Wilderness Act’s ban on water projects in wilderness areas. The Project nonetheless required authorization from the Forest Service under Title V of the Federal Land Policy and Management Act (“FLPMA”) so that a portion of the Project could be built on National Forest land. To this end, the Cities sought in January 1982 a land use easement from the Forest Service. In accordance with regulations of the Council on Environmental Quality (“CEQ”), 40 C.F.R. 1500, et seq., implementing NEPA, 42 U.S.C. § 4332(2)(C), the Forest Service conducted an environmental analysis. In May 1982 the Forest Service issued its draft Environmental Impact Statement (“DEIS”). In the DEIS the Forest Service analyzed six project alternatives. It then conducted more than 20 public hearings to receive input on the proposed project. Among the main areas of concern expressed to the Forest Service was the one which is the focus of this case — the impact of the project on wetlands areas in the Wilderness Area. In 1983, the Forest Service completed its FEIS, concluding that the Homestake project would have no significant impact on wetlands areas or other environmental resources. The Forest Service subsequently issued its Record of Decision (“ROD”) and granted the land use easement to the Cities. The easement contained 29 specific mitigation restrictions with which the Cities must comply. In granting the easement, the Forest Service Supervisor concluded that the grant was consistent with Executive Order 11990, “Protection of Wetlands.” The decision to grant the easement is not itself at issue in this case. The Cities then sought from the Army Corps of Engineers the dredge and fill permit which is at issue in this case. In order to discharge fill material into creek drain-ages in the Wilderness Area in the course of constructing the water diversion structures contemplated by the Project, the Cities were required under section 404 of the Clean Water Act, 33 U.S.C. § 1344, to obtain a permit from the Secretary of the Army, acting through the Corps. Before issuing a permit, the Corps must also comply with NEPA. Apparently concerned that the Forest Service FEIS may not have adequately addressed the question of the impact of the Project on wetlands, the Corps asked its Environmental Laboratory to review the FEIS. In its July, 1983 report, the Laboratory concluded that the Forest Service had not adequately shown that wetland areas would be unaffected by the Project, and it recommended that the Corps acquire additional information. At approximately the same time, the U.S. Fish and Wildlife Service did its own review of the possible impact of the Project on wetlands, and concluded there would be no detrimental impact. Addendum Vol. II to Appellees’ Briefs at B357. The Corps thereafter hired a consultant, Aqua Resources, Inc. (“ARI”), to study the matter. In its May, 1984 report, ARI concluded that “[t]here is a potential for significant adverse impacts to downstream wetlands in terms of sequentially (over time) lowering the water table associated with several Cross and Fall creek wetlands.” Addendum to Appellant’s Opening Brief at A43. It recommended that specific additional studies be done, that pre- and post-construction monitoring be required, and that mitigation measures be developed if the additional studies showed an expected adverse impact on wetlands. Id. at A44. After reviewing the ARI Report, the Environmental Protection Agency (“EPA”) concluded that “the performance of additional studies ... should be considered before any construction is undertaken in the project area to identify probable wetland impacts.” Id. at A49. The Corps did not in fact conduct additional studies prior to issuance of the permit. It did not prepare a supplemental EIS or its own EIS or other environmental analysis. Instead, it adopted the Forest Service’s FEIS as its own and issued a permit subject to specific conditions. As the Record of Decision by the Army Corps District Engineer recognized: [t]he Forest Service has made a reasoned decision and their judgment may ultimately prove correct. I believe, however, that due to specific mandates of my authority to protect the waters of the United States, I must take a more conservative approach. I must assume that without mitigating measures the wetlands in the Fall and Cross Creek drainages would be severely degraded by the Homestake II project. Corps ROD at 5, Addendum Volume II to Appellees’ Answer Briefs at B477 (emphasis added). He therefore issued the permit, but with the following conditions: I intend that these wetlands be preserved, but I do not wish to unnecessarily prolong the permitting process or restrict the City’s development of their water rights. Therefore, I am issuing the permit with the condition that the applicants gather the appropriate hydro-logic field data, recommended by Aqua Resources Incorporated, and design a plan to prevent the loss of wetlands in the Holy Cross Wilderness area. This plan would be coordinated with the same technical experts that reviewed the draft ARI report, and must receive my approval prior to construction of permitted facilities. The plan also must include post construction monitoring for prevention of long-term impacts of the water diversions. Id. (emphasis added). The permit explicitly stated that “the applicants shall prevent the loss of wetlands.” Dept, of the Army Permit at 3, id. at B470. In accordance with the permit’s condition of developing a plan to prevent wetlands loss, the Cities directed the preparation of a nine volume Wetland Baseline Report and a Monitoring and Mitigation Plan, issued in September 1986 and March 1987. That Report concluded that the Project “will not cause wetland losses.” Id. at B503. The Monitoring and Mitigation Plan was revised many times in response to comments and suggestions from numerous groups, including the Chief of the Corps’ Regulatory Section and plaintiff Holy Cross Wilderness Fund. The district court concluded it was “well satisfied that public participation and input have been maximized in this case, not only as to the FEIS, but also concerning the nine-volume Wetlands study and the original and final Wetlands Monitoring and Mitigation Plans of September, 1986, and February, 1988.” Opinion and Judgment of the District Court at 7, Appellant’s Opening Brief at Tab A. In its final version, the Plan was approved by the Corps District Engineer in March 1988. It directed the establishment of an extensive, long-term and on-going monitoring program, with detailed mitigation measures to remedy or prevent wetlands loss. In approving the Monitoring and Mitigation Plan, the Corps opined that “[t]he concepts and methods presented in the Plan will prevent the loss of wetlands in the Holy Cross Wilderness Area.” Addendum Vol. II to Appellees’ Answer Briefs at B485-486. Both the Forest Service and the Corps agreed that the Baseline Report and the Monitoring and Mitigation Plan did not require the preparation of a Supplemental Environmental Impact Statement under 40 C.F.R. § 1502.9(c)(1)(i) and (ii). This lawsuit commenced in October 1985, when the Fund filed suit to set aside the land use easement issued by the Forest Service and the section 404 permit issued by the Army Corps of Engineers, claiming both were granted in violation of NEPA. The Fund further claimed that the Corps had violated the CWA. In February 1986, the district court granted the Cities’ motion to intervene in the lawsuit. Cross motions for summary judgment were filed by all parties. After a trial on the merits, the district court dismissed the case, and in the course of dismissal denied all pending motions for summary judgment. The court concluded that under applicable statutory and case law, the Corps had committed no violation of NEPA or any other law. This appeal followed. DISCUSSION The ultimate issue in this case is whether the Corps’ decision to grant the section 404 permit violated NEPA and/or the CWA. We review such a permitting decision under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A) to determine whether it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See Roanoke River Basin Ass’n v. Hudson, 940 F.2d 58, 61 (4th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1164, 117 L.Ed.2d 411 (1992); Bowles v. Army Corps of Engineers, 841 F.2d 112, 116 (5th Cir.), cert. denied, 488 U.S. 803, 109 S.Ct. 33, 102 L.Ed.2d 13 (1988); Friends of the Earth v. Hintz, 800 F.2d 822, 830-31 (9th Cir.1986); Sierra Club v. Army Corps of Engineers, 701 F.2d 1011 (2nd Cir.1983). A number of subsidiary decisions led up to that ultimate decision, and each one has been challenged. Thus, the adequacy of the Forest Service FEIS and the Corps’ decision not to supplement that FEIS are relevant to our analysis of the propriety of the Corps’ permitting decision. We turn first to the general contours of NEPA and the CWA. A. NEPA Under NEPA, “major Federal actions significantly affecting the quality of the human environment” must be preceded by an environmental impact statement or EIS. 42 U.S.C. § 4332(2)(C). See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348-49, 109 S.Ct. 1835, 1844-45, 104 L.Ed.2d 351 (1989); City of Aurora v. Hunt, 749 F.2d 1457, 1464 (10th Cir.1984); Johnston v. Davis, 698 F.2d 1088, 1091 (10th Cir.1983). The EIS requirement serves two important functions: It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision. Robertson, 490 U.S. at 349, 109 S.Ct. at 1845. NEPA specifies five specific issues which must be addressed in the EIS: (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. § 4332(2)(C). Thus, “through a set of ‘action-forcing’ procedures” NEPA requires agencies to take a “hard look” at the environmental consequences of proposed actions. Robertson, 490 U.S. at 350, 109 S.Ct. at 1846; Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730, n. 21, 49 L.Ed.2d 576 (1976); Park County Resource Council, Inc. v. United States Dept. of Agric., 817 F.2d 609, 620 (10th Cir.1987); Johnston v. Davis, 698 F.2d 1088, 1091 (10th Cir.1983). It is “well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.” Robertson, 490 U.S. at 350, 109 S.Ct. at 1846. Council on Environmental Quality (“CEQ”) regulations, 40 C.F.R. § 1500, et seq., expand upon the appropriate form and content of an EIS. See Oregon Env’t Council v. Kunzman, 817 F.2d 484, 492 (9th Cir.1987). An agency need not, however, always develop its own EIS. It may “adopt a Federal draft or final environmental impact statement or portion thereof provided that the statement or portion thereof meets the standards for an adequate statement under these regulations.” 40 C.F.R. § 1506.3(a). See also 33 C.F.R. § 230.21 (Corps may adopt another agency’s EIS as its own, unless it finds “substantial doubt as to technical or procedural adequacy or omission of factors important to the Corps decision.”). This is what the Corps did in discharging its obligation to take a “hard look” at the environmental consequences of the Project before issuing its section 404 permit. 1. Adequacy of an EIS. The Fund charges that the FEIS prepared by the Forest Service and adopted by the Corps was inadequate. A court reviewing the adequacy of an EIS merely examines “whether there is a reasonable, good faith, objective presentation of” the topics NEPA requires an EIS to cover. Johnston v. Davis, 698 F.2d 1088, 1091 (10th Cir.1983); see also Lake Hefner Open Space Alliance v. Dole, 871 F.2d 943, 947 (10th Cir.1989); Lidstone v. Block, 773 F.2d 1135, 1137 (10th Cir.1985); City of Aurora v. Hunt, 749 F.2d 1457, 1465-66 (10th Cir.1984); Environmental Defense Fund v. Andrus, 619 F.2d 1368, 1376-77 (10th Cir.1980). a. Discussion of Mitigation Measures. The Fund particularly argues the FEIS was inadequate in failing to include a plan to mitigate any adverse impacts on wetlands. As the relevant statutes, regulations and case law make clear, “the discussion of steps that can be taken to mitigate adverse environmental consequences” plays an important role in the environmental analysis under NEPA. Robertson, 490 U.S. at 351, 109 S.Ct. at 1846; see also 40 C.F.R. § 1508.25(b), § 1502.14(f), § 1502.-16(h), § 1505.2(c). The Supreme Court in Robertson considered how detailed and specific the mitigation discussion contained in an EIS must be. After noting the “fundamental distinction” between “a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been evaluated” and “a substantive requirement that a complete mitigation plan be actually formulated and adopted,” the Court refused to require “a fully developed plan that will mitigate environmental harm before an agency can act.” Robertson, 490 U.S. at 352-53, 109 S.Ct. at 1847. Nor does NEPA impose any substantive requirement that mitigation measures be implemented. Id. at 353, 109 S.Ct. at 1847; see also Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 206 (D.C.Cir.) (“NEPA not only does not require agencies to discuss any particular mitigation plans that they might put in place, it does not require agencies — or third parties — to effect any.”), cert. denied, — U.S. -, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991). There must, however, be a “reasonably complete discussion of possible mitigation measures.” Robertson, 490 U.S. at 352, 109 S.Ct. at 1847. Thus, in Robertson, an EIS describing specific mitigation measures which could be taken by third parties, although containing no assurance that they would in fact be taken by those third parties, was held adequate. The Fund contends that, even under Robertson, the EIS in this case contained an inadequate discussion of mitigation measures and therefore violated NEPA. b. Incomplete or Unavailable Information. The CEQ regulations specify how an agency should proceed when faced with “incomplete or unavailable” information relating to its evaluation of “reasonably foreseeable significant adverse effects on the human environment.” 40 C.F.R. § 1502.22. The agency must obtain and include in the EIS information on “reasonably foreseeable significant adverse impacts” if the costs of obtaining such information are not exorbitant. If the costs of obtaining the information are exorbitant “or the means to obtain it are not known” the agency must follow four specific steps. The Fund argues that the ARI Report demonstrated that the Forest Service FEIS contained incomplete information about wetland impacts. Thus, the Corps was obligated, under the applicable regulations, to obtain complete information and include it in the FEIS or a subsequent NEPA document, or to follow the specific steps contained in the regulations and applicable if complete information is unobtainable. The Fund argues the Corps did neither of these things. 2. Supplementation of an EIS. Under applicable CEQ regulations, agencies [s]hall prepare supplements to either draft or final environmental impact statements if: (i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. 40 C.F.R. § 1502.9(c)(1); see also 33 C.F.R. § 230.13(b). The Fund argues that there were both “substantial changes in the proposed action” resulting from the Cities’ suggested mitigation measures, and “significant new circumstances or information” in the form of the ARI Report and the Wetlands Baseline Report. Courts review an agency decision regarding the need for a supplemental EIS under the “arbitrary and capricious” standard of the APA, 5 U.S.C. § 706(2)(A). Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). This is so because the decision whether to prepare a supplemental EIS “is similar to the decision whether to prepare an EIS in the first instance,” and is highly factual. Id. at 374, 377, 109 S.Ct. at 1860, 1861; see also Village of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970 (10th Cir.1992); Sierra Club v. Lujan, 949 F.2d 362, 367 (10th Cir.1991). Accordingly, “as long as the Corps’ decision not to supplement the FEISS was not ‘arbitrary and capricious,’ it should not be set aside.” Marsh, 490 U.S. at 377, 109 S.Ct. at 1861. That standard of review is narrow. See id. at 378, 109 S.Ct. at 1861 (“in making the factual inquiry concerning whether an agency decision was ‘arbitrary or capricious,’ the reviewing court ‘must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ This inquiry must be ‘searching and careful,’ but ‘the ultimate standard of review is a narrow one.’ ”) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971)). The agency’s discretion is broad: When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive. On the other hand, in the context of reviewing a decision not to supplement an EIS, courts should not automatically defer to the agency’s express reliance on an interest in finality without carefully reviewing the record and satisfying themselves that the agency has made a reasoned decision based on its evaluation of the significance—or lack of significance—of the new information. Id. 490 U.S. at 378, 109 S.Ct. at 1861. The Fund argues that the Corps’ failure to supplement the FEIS was arbitrary and capricious. B. Clean Water Act Under the Clean Water Act, discharges of pollutants into waters of the United States are prohibited unless in compliance with the provisions of the Act. 33 U.S.C. § 1311(a), § 1344(a). Thus, the Cities were unable to discharge any dredged or fill material produced in connection with the Project without obtaining a permit, commonly known as a section 404 permit, from the Corps. 33 U.S.C. § 1344(a). “Waters of the United States” includes wetlands. 33 C.F.R. § 328.3(a)(2), (3), (7); 40 C.F.R. § 232.2(q)(2), (3), (7); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985); United States v. Marathon Dev. Corp., 867 F.2d 96, 98 (1st Cir.1989); Missouri Coalition For the Env’t v. Army Corps of Eng’rs, 866 F.2d 1025, 1028 n. 2 (8th Cir.), cert. denied, 493 U.S. 820, 110 S.Ct. 76, 107 L.Ed.2d 42 (1989). The Corps has a particular duty under the CWA to protect wetlands. See 33 C.F.R. § 320.4(b). As part of the permit process, the Corps is obligated to conduct a “public interest review.” 33 C.F.R. § 320.4(a). In addition to complying with its own regulations, the Corps, in issuing section 404 permits, must also comply with guidelines developed in conjunction with the EPA, known as 404(b)(1) Guidelines. 40 C.F.R. Part 230. Finally, 33 C.F.R. Part 230 contains regulations for implementation of NEPA by the Corps, which are intended to supplement the CEQ regulations implementing NEPA. 40 C.F.R. § 1500, et seq. The EPA may veto the issuance of a permit which will have an “unacceptable adverse effect” on, inter alia, a wetland ecosystem. See section 404(c) of the CWA, 33 U.S.C. § 1344(c); 40 C.F.R. § 231.1(a), 231.-2(e). That has not been done in this case. Wetland protection is a distinct part of the Corps’ responsibility. Indeed, as the Fund points out, the Corps’ regulations specifically provide that “[n]o permit will be granted which involves the alteration of wetlands identified as important ... unless the district engineer concludes, on the basis of the [public interest review] that the benefits of the proposed alteration outweigh the damages to the wetlands resource.” 33 C.F.R. § 320.4(b)(4). The Fund argues the Corps violated the CWA by failing to fully and properly conduct the required public interest review prior to issuance of the section 404 permit. In particular, it charges the Corps violated its own regulations requiring a public interest review, as well as the 404(b) Guidelines, by acting (1) on the basis of an incomplete record; (2) without sufficient information to evaluate the economics of the Project; (3) without sufficient information to make the required determination of private and public need for the Project; and (4) without sufficient information to determine if there were practicable alternatives to the Project. It also argues the Corps violated its own regulations requiring mitigation to be considered “throughout the permit application review process.” 33 C.F.R. § 320.-4(r)(1). The Fund claims that, by issuing the permit with the condition that mitigation of adverse impacts on wetlands be addressed, the Corps impermissibly presumed that such mitigation could occur, rather than engaging in a rigorous and thorough analysis of that question prior to issuance of the permit. C. Our Analysis We hold that: (1) there was no NEPA violation because the FEIS was adequate and was properly adopted by the Corps; the need to seek out additional information on “reasonably foreseeable significant adverse impacts” was obviated by the decision to issue the permit with the specific condition that there be no wetlands losses; the decision not to supplement the FEIS with either the information contained in the ARI Report or the Baseline Report and Monitoring and Mitigation Plan was not arbitrary or capricious; and (2) there was no violation of the CWA or applicable regulations. We first consider whether the Corps violated NEPA by simply adopting the Forest Service FEIS rather than completing its own EIS. As indicated, this the Corps may do if the statement is adequate under applicable regulations. 40 C.F.R. § 1506.3(a); see also 33 C.F.R. § 230.21 (Corps may adopt another agency EIS unless it finds “substantial doubt as to technical or procedural adequacy or omission of factors important to the Corps decision.”). We therefore evaluate first the adequacy of the FEIS. The thrust of the Fund’s challenge to the adequacy of the FEIS is that it failed to adequately discuss wetland impacts or include a sufficient mitigation plan. We disagree. The Forest Service FEIS specifically addressed the impact of the Project on wetlands. It simply reached a different conclusion from that reached by the Fund and its experts. We cannot say that the FEIS’s conclusion that, due to other water sources, stream diversions in the Wilderness Area would not adversely affect wetlands reveals a lack of a “reasonable, good faith, objective presentation” of adverse environmental effects. Considering the standard by which this circuit reviews the adequacy of an EIS, we must conclude that the FEIS in this case was adequate. See Johnston v. Davis, 698 F.2d 1088, 1091 (10th Cir.1983); see also Lake Hefner Open Space Alliance v. Dole, 871 F.2d at 947. The lack of a detailed mitigation plan in the FEIS then flows from that initial conclusion that there would be no adverse effect on wetlands. While the Fund may disagree with the correctness of that conclusion, it may not complain that the FEIS is inadequate in failing to discuss specific mitigation measures directed at an adverse environmental impact the Forest Service did not, in good faith, think would occur. We therefore conclude that the Corps did not err in adopting the Forest Service FEIS, rather than completing its own EIS. We turn now to whether the Corps’ should have complied with various regulations governing agency action when faced with “incomplete or unavailable” information relating to its evaluation of “reasonably foreseeable significant adverse effects on the human environment.” 40 C.F.R. § 1502.22. The Fund argues that the ARI Report recommending additional studies to determine possible adverse impacts on wetlands demonstrated that the FEIS contained “incomplete” information. In our view, the necessity for specifically seeking out and including in either the FEIS or a subsequent or supplemental NEPA document such additional information was obviated by the Corps’ decision to issue its permit with the specific condition that there be no wetlands losses. By making that decision, the Corps no longer needed to evaluate “reasonably foreseeable significant adverse impacts” on wetlands, because it assumed such impacts and essentially guaranteed that the Cities mitigate those impacts. Thus, no NEPA violation follows from the Corps’ alleged noncompliance with regulations concerning unavailable or incomplete information. Similarly, we hold that the Corps’ decision not to supplement the FEIS, after learning from ARI that additional data were needed to fully evaluate the impact of the Project on wetlands, and after directing the development of a comprehensive Monitoring and Mitigation Plan, was not arbitrary or capricious under Marsh, 490 U.S. 360, 109 S.Ct. 1851. The arbitrary and capricious standard of review is a “narrow one,” which mandates considerable deference to agency decisions. Id. at 378, 109 S.Ct. at 1861. Our own careful review of the record in this case reveals that, throughout this entire dispute, expert views on the highly technical question of how best to determine the possible impacts of the Project on wetlands in the Wilderness Area have differed. While the initial Forest Service FEIS concluded there would be no adverse impacts on wetlands, the ARI Study questioned that conclusion. But the Baseline Report again concluded there would be no wetlands losses. The Forest Service and the Corps have been aware of, and have responded to, these differing views at various stages and in different contexts. “When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh, 490 U.S. at 378, 109 S.Ct. at 1861; see also Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir.1991), petition for cert. denied, — U.S. -, 112 S.Ct. 1559, 118 L.Ed.2d 207 (1992); Friends of the Earth v. Hall, 693 F.Supp. 904, 922 (W.D.Wash.1988) (“A federal court is not in the business of resolving scientific disagreements between plaintiffs’ experts and the Corps’ experts.”). We conclude that the Corps’ decision not to supplement the FEIS with information and studies provided by its expert consultants and generated by the Baseline Report and the Monitoring and Mitigation Plan, was a “reasoned decision based on its evaluation of the significance — or lack of significance — of the new information.” Marsh, 490 U.S. at 378, 109 S.Ct. at 1861. This is particularly true in light of the decision to issue the permit with the specific condition of no wetlands losses. As we just concluded in connection with the “unavailable or incomplete” information argument, that conditioned permit essentially obviated the need for a supplemental EIS. The point of a supplemental EIS, like an original EIS, is to foster informed and thoughtful agency decisions and to promote public involvement in actions affecting our environment. See Robertson, 490 U.S. at 349, 109 S.Ct. at 1844-45; Park County Resource Council, Inc. v. United States Dept. of Agric., 817 F.2d 609, 620 (10th Cir.1987). When the Corps determined that there would be no adverse impacts on wetlands, and developed a plan to ensure that result, the need for publication of studies relating to possible effects on wetlands disappeared. Marsh! s specific conclusion that NEPA imposes no substantive requirement that an EIS, or by implication a supplement thereto, contain “a fully developed plan that will mitigate environmental harm before an agency can act” supports our decision that the Monitoring and Mitigation Plan itself did not necessarily need to be the subject of a supplemental EIS. Thus, we affirm the district court’s conclusion that there was no NEPA violation in the Corps’ actions in this case. Finally, we consider whether the Corps’ permitting decision violated the CWA and applicable regulations. We hold it did not. The Fund asserts that a number of regulations were violated. We address each one in turn. The Fund argues that the Corps violated Corps regulations requiring mitigation to be considered “throughout the permit application review process.” 33 C.F.R. § 320.4(r)(1). We agree with the Corps that the record in this case is replete with a consideration of mitigation measures. Indeed, the ARI Report was sought so that possible impacts of the Project on wetlands, and possible measures to mitigate those impacts, could be evaluated. The Corps’ permitting review process culminated in a permit requiring a comprehensive mitigation plan to prevent wetlands losses. It is simply a mischaracterization of the record in this case to assert that mitigation was not considered throughout the permit review process. The Fund also asserts that the Corps violated its own regulations and the 404(b) Guidelines by failing adequately to evaluate practicable alternatives to the Project. Again, we believe the record undermines the Fund’s argument. The Fund in particular focuses on two alternatives which it says were inadequately considered by the Corps: Plan D, involving tunnels, a pumping station and pipelines for the diversion of water below the wetlands and pumping of water to the Homestake I Reservoir; and a water trade alternative. We agree with the Corps and the Cities that the record reveals that Plan D was viewed as similar to Alternative 4, which was discussed in detail in the FEIS. The primary difference between Plan D and Alternative 4 is that Plan D would use an existing reservoir and Alternative 4 would require a new one. The Corps, in its ROD, rejected alternatives involving pumping water, rather than using a gravity flow system, because inter alia, “pumping would consume large quantities of electrical energy.” Corps ROD, Addendum Vol. II to Appellees’ Answer Briefs at B475. While the Fund correctly points out that a new reservoir (Alternative 4) is probably more environmentally damaging than using an existing reservoir (Plan D), one of the specific problems identified by the Corps as a reason to reject Alternative 4 — large electrical energy consumption for pumping — is common to both plans. The water trade alternative was rejected in the FEIS and by the Corps in its ROD as too speculative and dependent upon too many uncertainties. We cannot say that that decision was in error. See National Indian Youth Council v. Watt, 664 F.2d 220, 226 (10th Cir.1981); see also City of Aurora v. Hunt, 749 F.2d 1457, 1467 (10th Cir.1984) (“An agency need not analyze the environmental consequences of alternatives it has in good faith rejected as too remote, speculative, or as in this case, impractical or ineffective.”). In sum, we view the Forest Service FEIS and the Corps’ discussion of alternatives to be adequate. “We uphold [an agency’s] discussion of alternatives so long as the alternatives are reasonable and the agency discusses them in reasonable detail.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.Cir.), cert. denied, — U.S. -, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991). The Fund also argues the Corps acted without sufficient information to evaluate the economics of the Project or to make the required determination of the private and public need for the Project. 33 C.F.R. § 320.4(a)(2)(i). Our careful review of the record leads us to conclude that the Corps satisfied its obligations in these two regards. While the Corps and the Forest Service were careful to indicate that the FEIS “is not a substitute for State and local land and water use planning,” Forest Service ROD at 4, Addendum Vol. I to Appellees’ Answer Briefs at B280, their consideration of the economics and the public and private need for the Project was sufficient such that the Corps’ permitting decision based thereon was not arbitrary or capricious. Cf. North Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1541-42 (11th Cir.1990) (“NEPA does not confer the power or responsibility for long range local planning on federal or state agencies.”) (footnote omitted). Finally, the Fund argues that the Corps engaged in an impermissible “permit first — mitigate later” plan, in violation of the CWA. We disagree. As we have stated before, the permit in this case specifically stated that no wetlands losses would be allowed, and that a mitigation plan would have to be developed to ensure that result. While we agree with the district court that “the normal order of events is not what occurred in this case, there is no doubt that the Corps’ permitting decision was not arbitrary or capricious, or in violation of any applicable laws. CONCLUSION This is an unusual case. We would not normally expect to see deviations from the typical order of events in NEPA and CWA cases. Nonetheless, the particular circumstances of this case lead us to conclude that the agencies involved took many “hard looks” at the Project’s environmental consequences, that their decisions were informed even if disputable, and that no NEPA or CWA violations occurred. For the foregoing reasons, the decision of the district court is AFFIRMED. . The Project contemplates the construction of four diversion structures and approximately eleven miles of tunnels. All the diversion structures and most of the tunnels would be in the Wilderness Area. . In December 1982, the Subcommittee on Public Lands and National Parks of the House of Representatives Interior Committee criticized the DEIS as "inadequate to satisfy the requirements of’ NEPA and certain sections of the Colorado Wilderness Act. It requested that the Forest Service republish the DEIS and “provide additional opportunity for the general public to submit oral and written comments.” Addendum to Appellant’s Opening Brief at A37-A38. The Forest Service did not in fact republish the DEIS and provide additional opportunity for comment. It explained its refusal on the basis that it found no substantive information or alternatives that would warrant republishing the DEIS for public comment. . After noting that one of five specific issues of particular importance was the Project's effect on wetlands, the Regional Forester concluded in the ROD that "[sjince much of the wetland area lies outside of the floodplain and sufficient water is available from sources other than the streams, I conclude that the project will not have a significant effect on wetlands.” Forest Service ROD at 3, Addendum Vol. I to Appellees’ Answer Briefs at B279. He further concluded "[sjignificant adverse effects will not occur and this action minimizes the loss of wetlands.” Forest Service ROD at 10, Id. at B286. . Executive Order 11990, issued by President Carter in 1977, directed federal agencies to minimize the destruction, loss, or degradation of wetlands. . Pursuant to 36 C.F.R. § 211.18, the decision of the Regional Forester was appealed to the Chief of the Forest Service. Twenty-six parties, including the plaintiff Fund, participated in the appeal. After a hearing and the receipt of written materials from various parties, including the Fund, the Chief of the Forest Service upheld the Regional Forester’s decision. In so doing, the Chief recognized the: difference of opinion among scientists and knowledgeable persons representing or advising the Forest Service, the Cities, and appellants concerning the adequacy and interpretations of available hydrologic, meteorologic, and biologic information, and of observed on-the-ground conditions. Decision of the Chief, USDA Forest Service at 8, Addendum Vol. I to Appellees’ Answer Briefs at B254. He also noted that there were “contentions that the methodologies used by the Forest Service scientists were inappropriate and are outdated.” Id. He further directed the Regional Forester to consider the “need for additional mitigating measures that may be required” to compensate for the possible loss of beavers whose activities influence the wetlands. Id. at B255. With that last recommendation, he approved the Regional Forester’s decision. .The Corps had also been a "cooperating agency” with the Forest Service in the Forest Service’s preparation of its FEIS. . Under section 404 of the Clean Water Act, the Corps and the EPA share responsibility for implementing the specific requirements of the Act. . The Forest Service concluded that the Report and Plan did not present any significant new information relevant to the Project's environmental concerns. The Corps District Engineer similarly concluded that there were no significant changes or new circumstances or information requiring a supplemental EIS. . As this court stated in Johnston: Judicial review of an EIS is limited to a consideration of the following: (1) does the EIS discuss all of the five procedural requirements listed in 42 U.S.C. § 4322(C); (2) does the EIS constitute a good faith compliance with the demands of NEPA; and (3) does the statement contain a reasonable discussion of the subject matter involved in the five respective areas? Johnston v. Davis, 698 F.2d at 1091 (quoting Save Our Invaluable Land (SOIL), Inc. v. Needham, 542 F.2d 539, 542 (10th Cir.1976), cert. denied, 430 U.S. 945, 97 S.Ct. 1580, 51 L.Ed.2d 792 (1977)). . The Fund also argues in its Reply Brief that a line of cases from other circuits “suggests that citizen groups cannot bring suit to enforce the mitigation conditions which the Corps places on 404 permits.” Appellant’s Reply Brief at 14 n. 13 (citing Dubois v. Thomas, 820 F.2d 943 (8th Cir.1987); Harmon Cove Condo. Ass'n v. Marsh, 815 F.2d 949 (3rd Cir.1987); Sierra Club v. Train, 557 F.2d 485 (5th Cir.1977); National Wildlife Fed’n v. Laubscher, 662 F.Supp. 548 (S.D.Tex.1987)). The Fund argues the application of that line of authority could "effectively bar meaningful citizen review of Corps mitigation decisions at every stage of the process.” Appellant’s Reply Brief at 15 n. 13. Those cases hold that individuals may not seek judicial review of an agency’s discretionary decision not to take action to enforce the conditions of a permit. This court explored the rule applied in those cases in Sierra Club v. Hodel, 848 F.2d 1068, 1074-76 (10th Cir.1988). We noted the general rule that "an ‘agency’s decision not to take enforcement actions should be presumed immune from judicial review under § 701(a)(2) [of the APA].’ ” Id. at 1075 (quoting Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)). However, we further noted that judicial review may lie where " ‘the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.’ ” Id. (quoting Chaney, 470 U.S. at 832-33, 105 S.Ct. at 1656). Thus, in Sierra Club v. Hodel, we held that the Bureau of Land Management’s ("BLM”) refusal to act under FLPMA, arguably characterized as "a decision not to take enforcement action,” was nevertheless reviewable because FLPMA provides "law to apply” in the form of imposing on the Department of the Interior, and therefore the BLM, the responsibility to define and protect wilderness areas and areas having wilderness characteristics. The question of the enforceability of the permit conditions in this case is not before us, and we decline at this point to address that issue. . As the Fund explains in its brief: The Corps contemplated substantial changes to the Homestake II project by suggesting that a mitigation plan be developed by the Cities. Thus, the action approved is no longer the construction of Homestake II as planned by the Cities and described in the EIS as Alternative 6; it now includes structural and operational changes in the mitigation plan developed after the EIS. Appellant’s Opening Brief at 19. . The “public interest review” includes a "careful weighing of all those factors which become relevant in each particular case. The benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments." 33 C.F.R. § 320.4(a)(1). Additionally, the Corps must consider the "relative extent of the public and private need" for the proposed project and "reasonable alternative locations and methods to accomplish the objective" of the proposed project. 33 C.F.R. § 320.4(2)(i) and (ii). Mitigation is important in the Corps' permit process. "Consideration of mitigation will occur throughout the permit application review process and includes avoiding, minimizing, rectifying, reducing, or compensating for resource losses." 33 C.F.R. § 320.4(r)(1). See also 40 C.F.R. § 230.70-§ 230.77 (section 404(b) Guidelines detailing mitigation measures). .The 404(b) Guidelines place four general restrictions on discharges: there must be no "practicable alternative”; the discharge must not cause a violation of any other statute or law; the discharge must not “cause or contribute to significant degradation of the waters of the United States”; and all "appropriate and practicable steps” must be taken to "minimize potential adverse impacts” of the discharge — i.e. mitigation measures must be implemented. 40 C.F.R. § 230.10(a), (b), (c) and (d). Additionally, under 40 C.F.R. § 230.12 the proposed discharge of dredged or fill material must be specified as (1) complying with the Guidelines or (2) complying with the Guidelines with "appropriate and practicable discharge conditions” or (3) failing to comply with the Guidelines where there are practicable, less environmentally harmful alternatives, or there are inadequate mitigation measures, or the discharge will result in "significant degradation of the aquatic ecosystem,” or “[t]here does not exist sufficient information to make a reasonable judgment as to whether the proposed discharge will comply” with the Guidelines. The Corps concluded that the proposed discharge complied with the Guidelines "with inclusion of appropriate and practicable mitigation measures." Addendum Vol. II to Appellees’ Answer Brief at B479. . The Corps argues that we should not consider this question since the Fund failed to raise it during the administrative proceedings in this case — i.e. in the appeal to the Chief of the Forest Service from the Forest Service’s grant of the land use easement. The Fund responds that the issue of the economics was raised by another party (the Vail Valley Water District) during the administrative proceedings. That, it argues, is sufficient to permit argument before this court. Further, the Fund argues the issue is fairly before this court because it was fully briefed and argued before the district court. We reach the merits of this issue, infra at 1528. . The alternative which generated the most discussion throughout the entire FEIS and permitting process was the water exchange alternative, which would obviate the need for any construction in the Wilderness Area. That alternative was rejected as too speculative. . 33 C.F.R. § 320.4(r)(1) provides as follows: Mitigation is an important aspect of the review and balancing process on many Department of the Army permit application. Consideration of mitigation will occur throughout the permit application review process and includes avoiding, minimizing, rectifying, reducing, or compensating for resource losses. . The Fund also suggests that the FEIS was inadequate in failing to discuss all practicable alternatives. NEPA requires an EIS to include alternatives to the proposed action. 42 U.S.C. § 4332(2)(C). The CEQ regulations state that the discussion of alternatives is "the heart of the environmental impact statement.” 40 C.F.R. § 1502.14. Because the Corps’ regulations and the 404(b) Guidelines require the same discussion of alternatives, and no one suggests that the nature of the requirement differs significantly under NEPA or the CWA, we discuss this issue in the context of our analysis of whether the Corps violated the CWA and applicable regulations in issuing the section 404 permit. See infra at 1528. . The Corps and the Cities argue the Fund did not urge the alternative of Plan D on the Corps or the Forest Service, and may therefore not raise it on appeal to this court. We have held that "[w]e will not review information that [a party] failed to include in the administrative record or present before [the agency].” New Mexico Env’t Improvement Div. v. Thomas, 789 F.2d 825, 835-36 (10th Cir.1986); see also Wilson v. Hodel, 758 F.2d 1369, 1373 (10th Cir.1985) ("[A] reviewing court will not consider contentions which were not pressed upon the administrative agency.”). While that requirement does not undermine an agency’s responsibility to consider all reasonable and practicable alternatives, we view with suspicion the Fund’s championing now of an alternative whose elimination long ago by the Forest Service and the Corps went unchallenged.

United States v. Ellen

OPINION WILKINSON, Circuit Judge: This case presents several issues pertaining to defendant’s conviction for illegally discharging pollutants into wetlands in violation of the Clean Water Act, 33 U.S.C. § 1251 et seq. Defendant appeals his conviction, and both defendant and the United States appeal the district court’s application of the Sentencing Guidelines. We affirm both the conviction and the sentence. I. Defendant William B. Ellen received a degree of Bachelor of Science in Engineering from Old Dominion University in 1972. For the following four years, he was a staff environmental engineer with the Virginia Marine Resources Commission and was responsible for reviewing the regulation of certain wetlands projects. In 1976, Ellen formed William B. Ellen, Inc., which specialized in the design of, and acquisition of permits for, construction projects in tidal wetlands and subaqueous areas. In August 1987, Ellen was hired by Paul T. Jones II to assist in the development of property on the Eastern Shore of Maryland into a personal and corporate retreat that would serve as a hunting preserve and wildlife sanctuary. Ellen advised Jones as to the acquisition of the property — named Tudor Farms — and, after the purchase, became the project manager responsible for land clearing, road construction, and pond excavation. Tudor Farms is low, wet land. It is surrounded on three sides by tidal waters and marshes, and the property itself contains large areas of wooded wetlands and tidal marshes and some upland fields and roads. Prior to the construction on the property, Tudor Farms served as habitat for an endangered species, the Delmarva fox squirrel, as well as an American bald eagle, various migratory birds, and wood ducks. Ellen supervised extensive excavation and construction at the Tudor Farms site. Ellen admits that he was responsible for acquiring environmental permits and complying with the various state and federal environmental regulations. Indeed, throughout construction at Tudor Farms, Ellen made clear — to officials of the Maryland Department of Natural Resources, to the Dorchester County Highway Department, and to Army Corps of Engineers (Corps) enforcement officials, among others — that he assumed the responsibility for acquiring all needed environmental permits. In February 1988, a Corps enforcement official visited the site, indicated to Ellen what could and could not be done without a Corps permit, and issued a cease and desist letter that ordered Tudor Farms to stop filling wetlands. When Corps officials returned to the site in January 1989, they found several wetlands sites where work had progressed without the necessary permits. They instructed the site manager that all work, in wetlands cease, but construction continued nonetheless. The Corps issued a second cease and desist letter on February 15. Upon visiting the site on March 3, Corps officials noticed additional violations. When Ellen refused to comply with their order to stop work, the Corps officials contacted the subcontractors directly, and only then did work cease. Upon learning that Ellen had not obtained all necessary environmental permits, Jones fired Ellen. Ellen was tried on six counts of knowingly filling in wetlands without a permit in violation of the Clean Water Act, 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A). He did not controvert the United States’ allegations as to the construction activity that occurred at Tudor Farms. Instead, Ellen disputed two elements of the offenses alleged: that the areas where work occurred were wetlands and, if they were wetlands, that Ellen knew they were wetlands and that permits were required. The jury convicted Ellen on five of the six counts. The district court imposed a sentence of six months’ imprisonment and one year of supervised release, with the latter conditioned upon four months’ home detention and sixty hours of community service. Both Ellen and the United States have appealed. II. We pause briefly at the outset to describe the relevant statutory provisions. Congress enacted the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Id. § 1251(a). To this end, the CWA prohibits the discharge “of any pollutant to navigable waters from any point source” without a permit. 33 U.S.C. §§ 1311(a), 1362(12)(A). The CWA defines navigable waters as “the waters of the United States,” id. § 1362(7), though it does not define the latter phrase. Both the Environmental Protection Agency (EPA), see 40 C.F.R. § 230.3(s)(2), (7) (1991), and the Army Corps of Engineers, see 33 C.F.R. § 328.3(a)(2), (7) (1991), define “waters of the United States” to include wetlands, and both define wetlands as follows: [ Tjhose areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. 40 C.F.R. § 230.3(t) (1991); 33 C.F.R. § 328.3(b) (1991). This regulatory definition has remained unchanged since 1977. See Proposed Revisions to 1989 Wetlands Manual, 56 Fed.Reg. 40,446, 40,446 (1991) [hereinafter Proposed Revisions]. Four federal agencies — EPA, the Corps, the Fish and Wildlife Service, and the Soil Conservation Service — are principally involved in the identification and delineation of wetlands. See Federal Interagency Committee for Wetland Delineation, Federal Manual for Identifying and Delineating Jurisdictional Wetlands 1 (1989) [hereinafter 1989 Manual ]. The Corps is authorized by CWA § 404 to issue permits for the discharge of dredged and fill materials into wetlands, see 33 U.S.C. § 1344(a), though both EPA and the Corps are responsible for making wetlands determinations under § 404. See 1989 Manual, supra, at 1. Prior to 1989, EPA and the Corps each developed its own procedures for identifying and delineating wetlands, which were set forth in technical manuals. See Environmental Protection Agency, Wetland Identification and Delineation Manual (1988); Environmental Laboratory, Dep’t of the Army, Corps of Engineers Wetlands Delineation Manual (1987). The absence of a uniform federal methodology resulted in inconsistent wetlands determinations for similar areas. See Proposed Revisions, supra, at 40,449. As a result of these inconsistencies, in 1989 the four federal agencies merged their methods and issued a single wetlands delineation manual, which provides a uniform national procedure for wetland determinations. See 1989 Manual, supra. Application of the 1989 Manual resulted in a significant increase in lands identified as wetlands as compared with the EPA and Corps manuals. See Proposed Revisions, supra, at 40,450; S.Rep. No. 80, 102d Cong., 1st Sess. 54 (1991). In August 1991, the four agencies proposed a revised manual, application of which would result in fewer lands classified as wetlands than under the 1989 Manual. See Proposed Revisions, supra. III. Ellen argues that his conviction violated the Due Process Clause and the Ex Post Facto Clause. His argument under both clauses is essentially the same. The five counts for which he was convicted involved discharging pollutants from a point source in areas alleged to be wetlands. The United States was required to prove at trial that the areas in which the conduct occurred were, in fact, wetlands. Ellen concedes that the regulatory definition of “wetlands” promulgated by EPA and the Corps remained unchanged since the commencement of the charged conduct and was the definition included in the district court’s instructions to the jury. The constitutional problems arise, according to Ellen, because some government witnesses at trial based their conclusions that the areas were wetlands on the more inclusive 1989 Manual, while the conduct for which he was charged occurred in 1987 and 1988, before its promulgation. Ellen asserts that the district court’s admission of such testimony permitted the jury to convict him on the basis of subsequently developed standards — which assertedly violates the non-retroactivity principle of the Ex Post Facto and Due Process Clauses. For the reasons set forth below, we reject Ellen’s ex post facto and due process arguments and therefore affirm his conviction. A. The Ex Post Facto Clause provides: “No ... ex post facto Law shall be passed.” U.S. Const., art. I, § 9. As the text of the Clause makes clear, the ex post facto prohibition applies only to “laws.” Accordingly, “[t]he constitutional prohibition against ex post facto laws ... is directed to the legislative branch of government rather than to the other branches.” Prater v. U.S. Parole Comm’n, 802 F.2d 948, 951 (7th Cir.1986) (en banc). This is not to say, however, that all actions of administrative agencies are exempt from Ex Post Facto Clause scrutiny. “When Congress has delegated to an agency the authority to make a rule instead of making the rule itself, the resulting administrative rule is an extension of the statute for purposes of the [Cjlause.” Rodriguez v. United States Parole Comm’n, 594 F.2d 170, 173 (7th Cir.1979). The reason for applying the Clause to such legislative rules is straightforward: Congress “should not be allowed to do indirectly what it is forbidden to do directly.” Prater, 802 F.2d at 954. But when an agency promulgates an interpretive rule, the Ex Post Facto Clause is inapplicable. “[Ijnterpretive rules simply state what the administrative agency thinks the statute means, and only ‘remind’ affected parties of existing duties.” Jerri’s Ceramic Arts, Inc. v. Consumer Product Safety Comm’n, 874 F.2d 205, 207 (4th Cir.1989). Unlike legislative rules, which “ha[vej the force of law,” id., interpretive rules “are statements of enforcement policy. They are ... ‘merely guides, and not laws: guides may be discarded where circumstances require; laws may not.’ ” Prater, 802 F.2d at 954 (quoting Inglese v. United States Parole Comm’n, 768 F.2d 932, 936 (7th Cir.1985)). Whether the Ex Post Facto Clause applies in this case, therefore, depends on whether the 1989 Manual is a legislative rule or merely an interpretive guide. Ellen has presented no reasons why the 1989 Manual is legislative rather than interpretive in nature, and we find no indication that promulgation of the 1989 Manual was an exercise of the agencies’ delegated legislative function. Rather, it seems clear that the four agencies that promulgated the 1989 Manual intended it to be only an interpretive guide to the regulatory definition of wetlands, primarily for the use of agency personnel. The agencies have described the manual as “a technical guidance document” that “provides internal procedures for'agency field staff for identifying and delineating wetlands.” Proposed Revisions, supra, at 40,-446. The manual does not purport to “create[] new law or impose[] new rights or duties,” Jerri’s Ceramic Arts, 874 F.2d at 207, and it was not promulgated through the notice and comment rulemaking procedures of the Administrative Procedure Act, 5 U.S.C. § 551 et seq., through which all legislative rules must pass. See Jerri’s Ceramic Arts, 874 F.2d at 208. We conclude, therefore, that the 1989 Manual is interpretive rather than legislative in nature and, as a result, it is not a “law” within the meaning of the Ex Post Facto Clause. Accordingly, Ellen’s ex post facto argument is without merit. B. Ellen bases his due process argument on Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). In Marks, the defendants were convicted of the interstate transportation of obscene material. The convictions were based on the definition of obscenity announced in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), even though the conduct on which the convictions rested occurred while the narrower definition of obscenity in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), governed. The Supreme Court held that application of the Miller definition violated the Due Process Clause because the defendants lacked “fair warning of that conduct which will give rise to criminal penalties.” Marks, 430 U.S. at 191, 97 S.Ct. at 992-93. Ellen argues that this case is analogous to Marks: there the Court invalidated the use of a subsequently developed judicial interpretation of the statutory term “obscenity,” whereas here the court should invalidate the use of subsequently developed administrative criteria for determining what property falls within the regulatory definition of “wetlands.” We believe that Ellen overreads the Marks decision. The essence of the due process argument in Marks was that the new interpretation of obscenity was unforeseeable. See id. at 192, 97 S.Ct. at 993. As the Court recently noted, Marks turned on the fact that, at the time of the conduct for which they were charged, “[t]he defendants] could not suspect that [their] actions would later become criminal.” Osborne v. Ohio, 495 U.S. 103, 117, 110 S.Ct. 1691, 1700, 109 L.Ed.2d 98 (1990). Viewed in this light, Ellen’s due process contention is without merit, for Ellen’s argument that he lacked fair warning that the areas in question were wetlands is foreclosed by the jury’s verdict. Ellen was convicted of five counts of “knowingly” filling wetlands without a permit. See 33 U.S.C. § 1319(c)(2)(A). Thus, the jury found, beyond a reasonable doubt, that Ellen knew that the areas • named in the indictment were wetlands at the time that the work there was undertaken. If Ellen knew that these areas were wetlands, then he cannot claim that the criminal nature of his conduct was unforseeable. The jury verdict is clearly supported by substantial evidence, for the record is replete with indications that Ellen possessed actual knowledge that he was working in wetlands. As early as October 1987, for example, a civil engineer hired by Ellen to provide surveying assistance at Tudor Farms told Ellen that environmental maps indicated that Ellen was working or planning to work in wetlands and, as a result, a Corps permit was required. And in February and March 1988, Corps enforcement officials toured Tudor Farms with Ellen and indicated to him areas that were wetlands. On their March visit, the Corps officials actually tied survey ribbons on trees and bushes to indicate to Ellen how to minimize the impact of proposed construction upon wetlands. These and other warnings to Ellen involved core wetlands — areas that would qualify as wetlands under any definition of that term. His disregard of those warnings — and of subsequent cease and desist letters — undercuts any argument that he was unaware of the nature of the land under development. In sum, because the jury’s conclusion that Ellen possessed actual knowledge that he was filling wetlands is supported by substantial evidence, we must conclude that Ellen had fair warning that he was subject to the CWA’s criminal penalties and that his due process argument is without merit. IV. We turn now to the district court’s application of the Sentencing Guidelines. The district court based Ellen’s sentence on a total offense level of twelve, which it calculated as follows. The base offense level was six. See U.S.S.G. § 2Q1.3(a) (1991). The district court then imposed a four-level upward adjustment for “an ongoing, continuous, or repetitive discharge, release, or emission of a pollutant into the environment,” id. § 2Q1.3(b)(l)(A), and a two-level upward adjustment because “the offense involved a discharge without a permit,” id. § 2Q1.3(b)(4). Ellen argues that the district court should not have applied § 2Q1.3 and challenges both enhancements; the United States challenges the district court’s refusal to impose a two-level upward adjustment for the use of a special skill, id. § 3B1.3. We address these arguments in turn. A. Ellen first argues that the district court should have disregarded § 2Q1.3 because it is inconsistent with the Guidelines’ enabling legislation. The Sentencing Reform Act of 1984 directs the Sentencing Commission to “insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense.” 28 U.S.C. § 994(j). Ellen is a first offender who was not convicted of a crime of violence. The imposition of a sentence of imprisonment is consistent with the Guidelines' enabling legislation, therefore, only if filling wetlands without a permit is “an otherwise serious offense.” Ellen asserts that his offense was not serious because it caused “no public health, welfare or safety threat, no public economic harm and no deprivation of public use or enjoyment.” Because Guidelines § 2Q1.3 imposes a sentence of imprisonment for a non-serious offense, concludes Ellen, the district court should have declined to apply it. This argument need not detain us long. Section 2Q1.3 does not contravene the Guidelines’ enabling legislation because the Sentencing Commission acted well within its discretion in classifying the instant offense as a serious one. Through the Clean Water Act and other environmental laws, Congress has determined that harm to the environment — even absent imminent threats to public health, welfare, or safety — is a public policy concern of the greatest magnitude. In the CWA in particular, Congress determined that “the restoration of the natural chemical, physical, and biological integrity of the Nation’s waters is essential,” S.Rep. No. 414, 92d Cong., 2d Sess. 7 (emphasis added), reprinted in 1972 U.S.Code Cong. & Admin.News. 3668, 3674, and set a national goal of fully eliminating what Ellen did here: the discharge of pollutants into the waters of the United States. See 33 U.S.C. § 1251(a)(1). The importance of these goals is reflected in the heavy punishments Congress selected for knowing violations of the CWA: “a fine of not less than $5,000 nor more than $50,-000 per day of violation, or ... imprisonment for not more than 3 years, or ... both.” Id. § 1319(c)(2). Ellen’s actions caused the destruction of substantial habitat and of approximately 86 acres of environmentally critical wetlands — damage that will cost an estimated $1 million to remedy. That Ellen believes that an offense of this magnitude is trivial or unimportant ironically exemplifies the need not to foreclose punishment by imprisonment in enforcing laws aimed at environmental protection. B. Ellen next challenges the district court’s imposition of the upward adjustments for “ongoing, continuous, or repetitive” discharge of a pollutant, see U.S.S.G. § 2Q1.3(b)(l)(A) (1991), and for discharge without a permit, see id. § 2Q1.3(b)(4). He argues that the base offense for which he was charged had as elements discharge of a pollutant and discharge without a permit and that, as a result, imposition of the enhancements results in impermissible double counting. Ellen’s argument is foreclosed by precedent. As we recently noted, “[t]he Sentencing Commission plainly understands the concept of double counting, and expressly forbids it where it is not intended.” United States v. Williams, 954 F.2d 204, 207 (4th Cir.1992). Because “the Guidelines are explicit when double counting is forbidden,” id., “[a]n adjustment that clearly applies to the conduct of an offense must be imposed unless the Guidelines expressly exclude its applicability,” id. at 207. Since by their terms both adjustments apply to Ellen’s conduct, the district court did not err in applying the upward adjustments in U.S.S.G. § 2Q1.3(b)(l)(A) and (4). In any event, those enhancements “rationally reflect[ ] the Guideline’s graduated adjustment scheme.” Williams, at 206. In this context as elsewhere, the Guidelines establish an “incremental adjustment schedule” that serves to advance “the Guidelines’ fundamental goal of proportionality in sentencing.” Id. at 207. Thus, the § 2Q1.3(b)(l)(A) enhancement differentiates punishment according to whether the discharge was “ongoing, continuous or repetitive” or occurred on only one occasion. Further, § 2Q1.3 applies to offenses that do not involve the discharge of a pollutant, see, e.g., 33 U.S.C. § 403 (prohibiting, inter alia, the obstruction of navigable waters); therefore, the § 2Q1.3(b)(l)(A) enhancement ensures that such offenses are treated less severely than are those involving-such a discharge. Likewise, § 2Q1.3 applies to offenses not involving the failure to obtain a permit, see, e.g., 33 U.S.C. §§ 409, 411 (requiring the marking and removal of sunken vessels), and the § 2Q1.3(b)(4) enhancement for discharge without a permit therefore functions to increase the penalty for those offenders who violate a permit requirement. C. Finally, the United States argues that the district court erred in not imposing the upward adjustment for use of a special skill. The Guidelines provide an enhancement “[i]f the defendant ... used a special skill[ ] in a manner that significantly facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3 (1991). Special skill is defined as “a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts.” Id. § 3B1.3 comment. (n.2). x The United States urged the district court to apply the two-level enhancement of § 3B1.3, arguing that Ellen’s extensive experience in wetlands construction and permit acquisition constituted a special skill that significantly facilitated the commission of the offense. The district court refused to apply the enhancement because it concluded that any special skills possessed by Ellen did not facilitate the commission of the offense. According to the court, Ellen simply failed to obtain a permit and, in this ease, such inaction was not facilitated by any expertise he possessed. The government challenges this determination on appeal and characterize.-- the district court’s ruling as creating an exemption to the special skills enhancement for defendants who commit regulatory crimes within the course of their professions. We believe that the government misconstrues the district court’s holding. Although the court did indicate that it could not conclude that special skills significantly facilitated an offense “simply because somebody in a regulated profession commits a regulatory offense,” at no point did the court purport to create an exemption to the special skills enhancement. Rather, the court’s decision not to apply the enhancement was based on its factual determination that any special skills possessed by Ellen did not facilitate his particular offenses. Because district courts are in a unique position to make such determinations, their conclusions are entitled to substantial deference. Here the district court’s factual determination is not clearly erroneous, see 18 U.S.C. § 3742(e); United States v. Hummer, 916 F.2d 186, 191 (4th Cir.1990), and we therefore decline to set aside the court’s decision not to impose the enhancement. V. Finding no constitutional infirmities in Ellen’s conviction and no errors in the district court’s application of the Sentencing Guidelines, we affirm both the conviction and the sentence. AFFIRMED. . Jones subsequently pleaded guilty to one count of negligently filling wetlands. See 33 U.S.C. § 1319(c)(1)(A). He was placed on probation for eighteen months and ordered to pay a $1 million criminal fine and $1 million for restoration of the property to its original condition and to place 2500 acres of the property in a conservation trust. . We reject Ellen’s claim that the district court’s instruction to the jury as to the definition of "knowledge” was erroneous. In its instruction, the court stated that the jury, in determining whether Ellen acted knowingly, "should consider all the information you find was available to the defendant! ]■” Ellen argues that this allowed the jury impermissibly to convict on the basis of what a reasonable person in Ellen’s situation should have known, rather than on what Ellen actually did know. We think that this is a cramped reading of the instruction. We do not read the instruction as allowing the jury to convict on the basis of a reasonable person standard. Rather, the instruction drew the jury’s attention to Ellen’s actual knowledge: The district court made clear that knowledge involves the "state of a person’s mind” and that a conviction could not be based on the defendant’s "ignorance.” The court also stated that "the Government must prove that the defendant acted knowingly,” that ”[t]his requirement applies to all four elements of the offense,” and that "[wjhether the defendant acted knowingly may be proven by the defendant’s conduct, and by all the facts and circumstances surrounding the case." Thus, this case is quite unlike United States v. Stephens, 569 F.2d 1372 (5th Cir.1978), on which Ellen relies, for in that case the jury instruction explicitly contained a reasonable person standard, see id. at 1374. In sum, read as a whole, the instruction "‘fairly and adequately state[d] the pertinent legal principles involved’” and is not grounds for reversal. United States v. Dee, 912 F.2d 741, 746 n. 8 (4th Cir.1990) (quoting Hogg's Oyster Co. v. United States, 676 F.2d 1015, 1019 (4th Cir.1982)). We also reject Ellen’s separate argument that the district court failed to instruct the jury that an element of the offense was that Ellen knew that a permit was required by the CWA. The district court instructed the jury that absence of a permit was an element of the offense, and it unambiguously stated that the United States had to prove that Ellen acted knowingly with regard to each element. . These enhancements involved guided downward departures from the Guidelines, which provide for a six-level adjustment under § 2Q1.3(b)(l)(A) and a four-level adjustment under § 2Q1.3(b)(4). This downward departure of two levels for each enhancement is authorized by the application notes, see U.S.S.G. § 2Q1.3, comment, (nn.4, 7) (1991), and has not been challenged on appeal by the United States.

United States v. Larkins

PER CURIAM. Defendants-appellants Thomas R. Lar-kins and Herbert M. Larkins (defendants) appealed from the district court’s order permanently enjoining them from modifying “wetlands” adjacent to the Obion Creek in Carlisle County, Kentucky, ordering them to restore wetlands they had earlier destroyed, and imposing a penalty of $40,000. The record disclosed the following facts. This action arose out of alleged violations of Section 301(a) of the Clean Water Act (CWA), 33 U.S.C. § 1311(a), which prohibits the discharge of pollutants, including fill dirt, into navigable waters of the United States and the fresh water wetlands adjacent thereto without first obtaining a permit from the Secretary of the Army, Army Corps of Engineers. 33 U.S.C. § 1344(a). The defendants, brothers, acquired 550 acres of land in the flood plain of Obion Creek, a tributary of the Mississippi River in Carlisle County, Kentucky in 1976. When they purchased the land, Thomas Larkins noted that 10-12 acres were covered with knee deep water. After acquisition of the land, the defendants dug drainage ditches, cut timber, blasted beaver dams, and began filling low spots. In 1980, the defendants began constructing dikes' and levees on the land. On February 1, 1982, the Corps notified the defendants that its aerial inspection disclosed that the defendants had been discharging materials into approximately 110 acres of the land which the Corps believed were classified as wetlands subject to the CWA. The defendants nevertheless completed the dikes and levees. The levees formed an 18 acre im-poundment or pond, which collected much of the water that previously saturated the land. On February 10, 1984, the United States commenced the present action in the United States District Court for the Western District of Kentucky alleging CWA violations as a result of the construction of the dikes and levees. At trial, the government introduced a number of aerial photographs showing standing water on the land where the impoundment was eventually constructed and the land northeast thereof. The defendants acknowledged that much of this land was covered by standing water, but attributed that condition to beaver activity. Photographs taken in 1972 and 1979 also revealed that this area was forested and contained numerous sloughs and depressions which collected standing water. The government presented three expert witnesses to identify the vegetation depicted in the various aerial photographs. These experts had been trained in identifying vegetation from aerial photographs by its “signature,” i.e., the color, shade, tint, and texture of the vegetation. Martin Keller (Keller) testified that the area was “an area of black willow, buttonbush and several different species of herbaceous aquatic and semi-aquatic plants.” Keller further testified that a 1980 photograph was “typical of the many thousands of similar sites that we have seen over the last 10 years of areas such as this, and in every case these areas have been classified as wetlands.” Thomas Welborn (Welborn) of the U.S. Environmental Protection Agency, testified that he had inspected the land in 1984 and discovered an undisturbed area of vegetation consisting of spike rush, wild millet, and nut sedge, all vegetation indicative of V wetland conditions. Welborn testified that in a 1980 aerial photograph the signature of this area was the same as the area where the impoundment is now located and the land northeast thereof. Welborn therefore concluded that the entire area was wetlands in 1980. In 1980, a forested area was located due east of what is now the impoundment which forest was subsequently cleared by the defendants. Expert David Parsons (Parsons) examined aerial photographs of this area and concluded that it was “palust-rum forested broadleaf deciduous seasonally inundated wetlands.” Another government expert witness, Charles Newling (Newling), dug soil samples in 1984 in the northeast area and concluded from the reduced amount of oxygen in the soil that in the past 2,000 years the soil had developed under wetland conditions. Parsons acknowledged that this oxygen test was incapable of disclosing whether the area had been wetlands for the last 200 years. Welborn took a soil sample east of the impoundment and reached a similar conclusion. An official Carlisle County Soil Survey compiled by the U.S. Department of Agriculture in 1937 indicated that the entire area north and east of the impoundment was composed of Waverly and Falaya soils which are “hydric” or wetland soil types. With regard to the land southwest of the impoundment, Newling testified that during a court ordered inspection of the land in May, 1985, he observed water marks or silt marks on the trees approximately 30 inches above ground level. Keller, Welborn, and Parsons all conducted a vegetation survey of this area and discovered that the predominant vegetation in this area was that which thrived in saturated soil (“group 1 vegetation”) and that which could tolerate saturated soil (“group 2 vegetation”). Newling conducted soil tests on this area of land and concluded that this soil also developed under wetlands conditions. Newling also observed that water filled the sample holes while he was taking samples in this area. The defendants introduced the testimony of two local farmers who stated that flood waters on the property tended to drain away quickly. On cross-examination, both witnesses agreed that, before being purchased by the defendants, the land tended to be covered by standing water. Following a bench trial, the district court found that the 110 acres in dispute were indeed wetlands subject to regulation under the CWA. The court further concluded that the defendants’ construction activities were not entitled to the “farm exception” under 33 U.S.C. § 1344(f) which exempts normal farming activity from the permit requirement so long as no “discharge of dredged or fill material into the navigable waters incidental to any activity [has] as its purpose bringing an area of the navigable waters into a use to which it was not previously subject_” 33 U.S.C. § 1344(f)(2). The court determined that the defendants “constructed the dikes and levees for the purpose of bringing the wetlands adjacent to Obion Creek under cultivation, a use to which the site was not previously subject,” and that they were not therefore entitled to the exemption. Their failure to obtain a permit before constructing the dikes and levees was, therefore, in violation of the CWA. United States v. Larkins, 657 F.Supp. 76 (W.D.Ky.1987). The defendants thereafter commenced this timely appeal. On appeal, defendants first asserted that the district court erred in concluding that the land in question was “wetlands” as defined in 33 C.F.R. § 328.3(b) prior to 1980 because the court failed to examine the amount and frequency of the soil’s saturation, i.e., its “hydrology,” in making its determination. This assignment of error is without merit. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), the Supreme Court rejected the notion that 33 C.F.R. § 328.3(b) required that land be frequently inundated to be considered wetlands and concluded that the regulation’s only requirement was that “the saturation is sufficient to and does support wetland vegetation.” 474 U.S. at 130, 106 S.Ct. at 461. The presence of vegetation that requires saturated soil conditions for growth and reproduction on land adjacent to a body of navigable water is sufficient to bring the land under the regulation’s definition of “wetlands.” 474 U.S. at 130-31, 106 S.Ct. at 461. See also United States v. Cumberland Farms of Conn., Inc., 826 F.2d 1151, 1154 (1st Cir.1987) (“[T]he Corps further extended its jurisdiction over wetlands by eliminating the requirement that the wetland be periodically inundated, requiring only that it be inundated or saturated by surface or groundwater at a sufficient frequency to support vegetation adapted for life in saturated soils.”), cert. denied, — U.S. -, 108 S.Ct. 1016, 98 L.Ed.2d 981 (1988). Accordingly, the district court properly found that the land adjacent to the Obion Creek was “wetlands” under 33 C.F.R. § 328.3(b) because it was sufficiently saturated to and did support wetland vegetation. Furthermore, given the evidence summarized above, the finding that the land was sufficiently saturated to and did support wetland vegetation was not clearly erroneous. Fed.R.Civ.P. 52(a). The defendants also argued that the district court erroneously concluded that they were not entitled to the “farm exception” under 33 U.S.C. § 1344(f), which provides, in part: (1) Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill material— (A) from normal farming, silvicul-ture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices; Sji * # * * * is not prohibited by or otherwise subject to regulation under this Section.... (2) Any discharge of dredged or fill material into the navigable waters 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, shall be required to have a permit under this section. (emphasis added) The district court concluded that because the land had not previously been used as farmland, the defendants were not entitled to the farm exception. Aerial photographs taken before the dikes and levees were constructed showed pooled water and inundated areas and that much of the land was covered by trees. There was no evidence that the land in question had been cultivated for farming. Defendants nevertheless asserted the land was used for “silviculture,” i.e., tree farming, and that when they cleared the land, they were merely harvesting trees. Trees were not replanted, they asserted, because they merely made an economic decision to plant more profitable crops, i.e., soybeans, after the trees had been removed. This argument is without merit. The silviculture exception contained in 33 U.S.C. § 1344(f)(1)(A) applies to the normal harvesting of timber, not to the activity of clearing timber “to permanently change the area from wetlands into non-wetland agricultural tract for row crop cultivation.” Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 926 n. 46 (5th Cir.1983) (citations omitted). See also 33 C.F.R. § 323.4(c) (“[A] permit will be required for ... the conversion of a wetland from silviculture to agricultural use when there is a discharge of dredged or fill materials into waters of the United States in conjunction with the construction of dikes, ditches or other works or structures used to effect such conversion.”). Consequently, the district court did not err in determining that the defendants were not entitled to the farming exception. This court has considered defendants’ remaining assignments of error and concludes that they are without merit. Accordingly, the judgment of the district court is hereby AFFIRMED. . The United States Army Corp of Engineers’ regulations defines wetlands as follows: (b) The term "wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. 33 C.F.R. 328.3(b) (formerly 33 C.F.R. 323.2(c)). . Under the district court’s order of March 16, 1987, the penalty will be lifted if defendants complete the restoration within six months of this court’s disposition of this appeal. .Under the CWA, the term " ‘navigable waters’ means waters of the United States....’’ 33 U.S.C. § 1362(7). In regulations promulgated by the Environmental Protection Agency and the Army Corps of Engineers, "waters of the United States" are defined to include tributaries of navigable waters and the wetlands adjacent to such tributaries. 33 C.F.R. § 328.3(a)(5) & (7) (formerly 33 C.F.R. § 323.2(a)(5) & (7)). See also 40 C.F.R. § 230.3(s)(5) & (7). Because the defendants did not argue that the CWA does not permit the Army Corps of Engineers to exercise its regulatory jurisdiction over wetlands adjacent only to tributaries of navigable waters, this court does not decide that issue. . The Corps’ Memphis District Guidelines, developed by Keller, divided vegetation into three groups: Group 1. These species are considered to be the most water tolerant woody species in the District. While the presence of these species on a site does not insure the presence of wetlands, these species are generally consistent as to the sites where they are commonly found (swamps, sloughs and backwater flats). Group 2. This group includes those species that, while showing varying degrees of adaptation to life in saturated soil conditions, may also be commonly found on more mesic sites which would not be considered wetlands. Group 3. These species may on occasion be found in wetlands but are not considered to be typically adapted for life in saturated soil conditions (where these species are well established, wetlands are not present). . The defendants are free, of course, to move the district court to stay its order requiring the restoration of wetlands pending their proper application for a permit. Such a stay would, in the event that a permit was issued, prevent the needless destruction of the significant work that went into transforming the wetlands in question into productive farm land.

United States v. Larkins

MERRITT, Circuit Judge, concurring. I want to make an issue clear that the landowner at oral argument expressly declined to raise. I mention it simply to make it clear that we do not reach the issue. The Clean Water Act does not mention “wetlands,” nor does it use any language which explicitly includes “wetlands.” Instead, it defines the pollution jurisdiction of the Corps of Engineers as limited to “navigable waters,” see § 404 of the Clean Water Act, 33 U.S.C. § 1344. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), the Supreme Court defined the “navigable waters” jurisdiction of the Corps to include “wetlands" adjacent to “navigable” or “open waters,” even though the wet area is not caused by flooding or ground water flowing from the adjacent waters. 106 S.Ct. at 462. The Supreme Court arrived at this expansive interpretation by pointing to the legislative history of § 404, which indicates, in a general way, a desire to adopt legislation for the “protection of aquatic ecosystems.” Id. The Supreme Court’s actual holding in Riverside Bayview Homes is limited, however, by the important fact that the “wetlands” in question in that case were “located adjacent to a body of navigable water, since the area characterized by saturated soil conditions and wetland vegetation extended beyond the boundary of respondent’s property to Black Creek, a navigable waterway.” Id. at 461 (emphasis added). In footnote 8 of its opinion, the Supreme Court reserved the question of the jurisdiction of the Corps of Engineers under § 404 over “wetlands that are not adjacent to bodies of open water.” Id. at 461 (“[w]e do not express any opinion on that question”). Had the landowners at oral argument not said that they do not raise the issue, this case would present the issue the Supreme Court reserved in Riverside Bay-view Homes. Obion Creek, so far as we can tell from the record before us, is a small nonnavigable creek or stream that empties into the Mississippi River many miles away. The land at issue in this case is adjacent to Obion Creek. The Corps of Engineers, as plaintiff, had the burden in this case of proving that the land in question is adjacent to a “body of open water,” the phrase used by the Supreme Court in footnote 8 of Riverside Bayview Homes. If this is true, then the Corps has now expanded the definition of “navigable waters” to include any creek or stream or moist area. It has arrived at the precise point predicted in our earlier opinion in the Riverside Bayview Homes case, which the Supreme Court reversed. There we said: “Under such a construction [as proposed by the Corps of Engineers] low lying backyards miles from a navigable waterway would become wetlands.” United States v. Riverside Bayview Homes, Inc., 729 F.2d 391, 401 (6th Cir.1984), rev’d, 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). The Corps’ definition has apparently detached and untied the “wetlands” jurisdiction of the Corps from any concept of “open waters” or navigable waters. A farmer’s low lying farmland or a homeowner’s low lying backyard — adjacent to a small stream or creek but many miles from any navigable waterway — has apparently been converted into government property no longer subject to control or improvement by the owner without government permission. A statute that does not mention “wetlands” has apparently been read to include simply “moist land adjacent to a creek.” The framers of the Constitution were solicitous of the rights of landowners — especially small farmers struggling for survival — not to have land appropriated by the government. They therefore adopted the provision of the Fifth Amendment of the Constitution prohibiting the taking of private property for public use without just compensation. Although the Supreme Court has stated that “[a] requirement that a person obtain a permit before engaging in a certain use of his or her property does not itself ‘take’ the property in any sense,” 106 S.Ct. at 459, the injunction the Corps has been granted in this case will force the Larkins to destroy the terracing work they have done on their land and to restore the land to its original nonagricultural use. Because farming appears to be the only economically viable use of the land in question, see Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980), it is arguable that the Larkins could successfully assert a takings claim if they are not allowed to keep the work they have already done. See Riverside Bayview Homes, 106 S.Ct. at 460 n. 6 (“Because the Corps has now denied respondent a permit to fill its property, respondent may well have a ripe claim that a taking has occurred.”) It is arguable that the injunction issued in this case constitutes a taking without compensation. Since the landowner has not raised this issue and at oral argument expressly declined to raise any question about whether Obion Creek is navigable, or constitutes “open waters,” the Court’s opinion should not be read to decide this issue.

United States v. Vesterso

HEANEY, Circuit Judge. Appellants Kent Melvin Vesterso, Warren August Anderson, and David Leas appeal their convictions under 16 U.S.C. § 668dd(c) for damaging property located in waterfowl production easements contained in the National Wildlife Refuge System. We affirm. BACKGROUND In 1964 and 1965, the United States purchased easements in Towner County, North Dakota, pursuant to section 4 of the Migratory Bird Hunting Stamp Act of March 16, 1934, 48 Stat. 451, as amended by section 3 of the Act of August 1, 1958, Pub.L. No. 85-585, 72 Stat. 486 (codified as amended at 16 U.S.C. § 718d(c) (Stamp Act)). These easements contained wetlands which provided habitat for wildlife. See North Dakota v. United States, 460 U.S. 300, 302-03, 103 S.Ct. 1095, 1097-98, 75 L.Ed.2d 77 (1983). These easements are now a part of the National Wildlife Refuge System and are managed by the United States Fish and Wildlife Service. See 16 U.S.C. § 668dd(a)(l) (Wildlife Refuge Act). In 1983, the Towner County Water Resource District Board (County Water Board), began considering two drainage projects. Appellants Anderson and Vesterso were members of the County Water Board at this time. One project affected two parcels of property, one owned by George Murdock and the other by William and Martha Brunnemeyer. The other project affected property owned by Marcel and Dessie Mantei. All three of these parcels of property were subject to federal easements protecting wetlands. The appellants claim they considered undertaking the projects because a number of landowners complained of flooding as a result of a build-up of vegetation, rocks, and silt in the wetlands on the three parcels of property. This flooding affected other parcels of property not subject to federal easements. In July of 1983, Water Board Chairman Anderson applied to the North Dakota Water Commission for permission to undertake the two projects. In their applications the appellants asked the State Water Commission for a permit to “clean out” two “watercourses” which the appellants stated flowed through the Murdock and Brunnemeyer properties and the Mantei property respectively. The County Water Board informed the North Dakota State Water Commission that one of the federal easements might be affected by one of the projects. Although the North Dakota Water Commission granted a permit to the County Water Board to proceed without a hearing because the project was not of statewide significance, it also advised the County Water Board to review the federal easement affected by the project and to “abide by its conditions.” After receiving the permit, the County Water Board hired a surveyor to design and lay out the path and grade of two ditches which would allow water to flow through the two wetland areas. It was at this time that David Leas joined the County Water Board. A construction company performed the digging with a backhoe. Vesterso and Leas supervised the digging. The completed ditches were flat-bottomed, about fifteen feet wide, and meandered through various parcels of property including the three tracts subject to the federal easements. The ditches sloped slightly from beginning to end in order to permit water to flow through them. According to the appellants, the ditches followed two recognized “watercourses.” According to the United States, the ditches followed “lineal wetlands.” At no time before completion of the project was the United States Fish and Wildlife Service (Fish and Wildlife Service), which was in charge of managing the easements, see 16 U.S.C. § 668dd(a)(l), notified of the projects. The Fish and Wildlife Service first discovered the ditches while on a routine observation flight on March 30, 1984. After inspecting the ditches from the ground, the Fish and Wildlife Service decided that a violation had occurred. The appellants were charged on December 19, 1985, with damaging federal easements, a petty offense. After a bench trial, the district court found the three appellants guilty. Each appellant was placed on probation for two years terminable upon restoration of the easements to their former condition. DISCUSSION The appellants make the following arguments for the overturning of their convictions: first, that the County Water Board, as a political subdivision of the State of North Dakota, had authority to dig the ditches because the ditches followed watercourses in which the State had an ownership interest or over which the State had regulatory authority; second, that the United States had not properly delineated the wetlands restricted by federal easements and shown that the appellants in fact damaged federal property; third, that the appellants, as members of the County Water Board, were not “persons” within the meaning of 16 U.S.C. § 668dd(c); fourth, that the evidence submitted at trial does not support their conviction. 1. Authority to Dig the Ditches Pursuant to State Law The appellants advance two arguments in support of their authority to dig the ditches through the federal easements. First, the State of North Dakota has an ownership interest in all watercourses in the State. Because the United States only purchased an interest from private landowners, the State’s property interest in the watercourse remained intact and, therefore, the appellants could not have harmed federal property in digging the ditches. Second, the National Wildlife Refuge Act explicitly stated that it had no effect on North Dakota water law. Because state water law permitted the County Water Board to take the actions it did, the County Water Board members did not violate federal law. a. The State’s Property Interest in Watercourses The district court concluded that it did not have to consider whether the ditches which were dug followed watercourses as defined by state law. It concluded that the State had no authority to alter the natural topography of the wetlands contained in the easements owned by the Fish and Wildlife Service, even though the State may have had a limited power to clean out the watercourses. Because the district court made no finding regarding the status of the ditches, we assume the appellants are correct in classifying them as watercourses. We believe that the district court’s interpretation comports with federal and state law. Under North Dakota constitutional and statutory law, the State of North Dakota does seem to have at least a limited property interest in either the water in or the “integrity” of watercourses. Article XI, Section 3, of the North Dakota Constitution states that “[a]ll flowing streams and natural watercourses shall forever remain the property of the State for mining, irrigating, and manufacturing purposes.” This section, although “not framed to divest the rights of riparian owners in the waters and bed of all natural water courses in the state,” was intended to place “the integrity of our water courses beyond the control of individual owners.” State v. Brace, 76 N.D. 314, 36 N.W.2d 330, 335 (1949) (quoting Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570, 573 (1896)). Furthermore, N.D.Cent.Code section 61-01-01 states that “[w]aters on the surface of the earth excluding diffused surface waters but including surface waters whether flowing in well defined channels or flowing through lakes, ponds, or marshes which constitute integral parts of a stream system, or waters in lakes * * * belong to the public.” This section, the North Dakota Supreme Court stated, expresses the public trust doctrine, which, in North Dakota, “permits alienation and allocation of such precious state [water] resources only after an analysis of the present supply and future need.” United Plainsmen v. North Dakota Water Conservation Comm’n, 247 N.W.2d 457, 462-63 (N.D.1976). But cf. Summa Corp. v. California ex rel Land Comm’n, 466 U.S. 198, 104 S.Ct. 1751, 80 L.Ed.2d 237 (1984) (explaining limitation on California public trust doctrine). There are, however, clear limitations on the State’s interests in watercourses. As the North Dakota Supreme Court has recognized, “[t]he ownership of beds of streams and lakes is quite a different matter from the right to control waters.” North Dakota State Water Comm’n v. Board of Managers, 332 N.W.2d 254, 258 (N.D.1983) (quoting State v. Adams, 251 Minn. 521, 546, 89 N.W.2d 661, 678 (1957), cert. denied, 358 U.S. 826, 79 S.Ct. 45, 3 L.Ed.2d 67 (1958)) (emphasis added). While North Dakota may own the beds under navigable streams and lakes, see United Plainsmen, 247 N.W.2d at 461, its ownership has not been interpreted to extend to beds of nonnavigable watercourses. See Ozark-Mahoning Co. v. State, 76 N.D. 464, 37 N.W.2d 488, 493 (1949) (section 210 of the North Dakota Constitution, currently Article XI, section 3, “has application only to the waters of flowing streams and natural water courses and not to lands underlying non-navigable streams and water courses”); see also North Dakota State Water Comm’n v. Board of Managers, 332 N.W.2d at 257-58; Beck & Hart, The Nature and Extent of Rights in Water in North Dakota, 51 N.D.L.Rev. 249, 262 (1974). Thus, unless otherwise conveyed, the watercourse bed remains the property of the landowner. As stated in its easement agreements, the United States purchased from the landowner the right to prevent the draining of “any surface water including lakes, ponds, marshes, sloughs, swales, swamps, or potholes, now existing or reoccurring due to natural causes” on the easement tract. Although the United States may not have exclusive ownership rights to the water contained in these features, it clearly has a property interest which permits it to maintain the beds and the banks of these features, through which the non-navigable watercourses in this case passed, in their natural state. See United States v. Welte, 635 F.Supp. 388, 390 (D.N.D.), affirmed, 696 F.2d 999 (8th Cir.1982) (citing, e.g., United States v. Virginia Electric and Power Company, 365 U.S. 624, 627, 81 S.Ct. 784, 787, 5 L.Ed.2d 838 (1961) (flowage easement is “property” within the meaning of the fifth amendment)); United States v. Seest, 631 F.2d 107, 109 (8th Cir. 1980). We do not have to define with greater precision the extent of the United States’ property interest in the beds of the watercourses, for it is clear that the district court properly found that the work done under the supervision of the County Water Board damaged wetland property not owned by the State. As the district court stated, the ditches “interfered with the natural topography of the land and altered the flow of the natural waters, including the waters in the wetland basins.” Experts for the United States testified that the channels went through a number of identifiable wetlands. Mr. Brunnemeyer testified that the project widened the watercourse as it crossed his property at least three feet and deepened it about two feet. The contractor whose company performed the digging testified on cross-examination by the appellants’ attorney that in digging the flat-bottomed ditches on both projects, he broadened the banks and leveled the v-shaped bed. In doing so, he removed a significant amount of clay along the banks of the channels. Even the appellants’ expert witness admitted that he saw one wetland that was affected in a “major” way by the ditch on the Murdock and Brunnemeyer properties. Therefore, the trial court did not err in finding that wetlands not owned by the State had been damaged. b. The State’s Regulatory Authority The appellants’ second assertion is that the Wildlife Refuge Act permitted state water law to govern the easements. Thus, the County Water Board would have the same authority to widen or deepen a watercourse as under state law. See N.D.Cent. Code § 61-16.1-09(6) (1985) (as amended). The appellants cite 16 U.S.C. § 668dd(i). This provision states that “[njothing in this Act shall constitute an express or implied claim or denial on the part of the Federal Government as to exemption from State water laws.” According to the appellants, this section was intended to preserve continued and unaltered state regulation of water and hence regulation of watercourses flowing through tracts subject to federal easements. We believe the express terms of section 668dd(i) demand a different interpretation. If the provision omitted the word “denial” and simply stated “[njothing in this Act shall constitute an express or implied claim * * * on the part of the Federal Government as to exemption from State water laws,” this would be a different matter. In such an instance state water laws would probably be interpreted to apply to the federal property interests as they would to private interests. “Denial,” however, is included in the statute. We believe the clear purpose of this provision was simply to prevent a general preemption of state water laws as they affected the federal easements. In other words, the terms of the Wildlife Refuge Act were to be given their full effect, and any conflict with state law would be dealt with on a case-by-case basis. Any state regulatory authority which might permit the widening and deepening of watercourses and hence the draining of wetlands on federal easements would directly conflict with the very essence of the Wildlife Refuge Act and the Stamp Act. The Wildlife Refuge Act states that “[n]o person shall knowingly disturb, injure, cut, burn, remove, destroy, or possess any real or personal property of the United States, including natural growth, in any area of the System.” 16 U.S.C. § 668dd(c). If nothing else, the digging certainly “disturbed” “natural growth” on the easements. The language in the easement agreements forbids the landowners, their heirs, successors, and assigns from “draining or permitting the draining, through the transfer of appurtenant water rights or otherwise, of any surface water including lakes, ponds, marshes, sloughs, swales, swamps or potholes, now existing or reoccurring due to natural causes on the above-described tract, by ditching or any other means * * Although the easement states its claim against the landowner, the easement agreements’ language also defines the extent of the United States’ property interest. Clearly that interest included the preservation of wetland areas in an essentially natural state. Ditching is expressly prohibited. 2. Delineation of the Acres Covered by the Easements The appellants claim that the United States did not establish that the wetlands damaged in this case were actually covered by federal easements. According to the appellants, Congress allowed the State to limit the number of acres which could be subject to federal easements. The appellants assert that the limit established by the State has been exceeded. Because it has not been established which wetlands were within the limitation and which were without it, it has not been established beyond a reasonable doubt that the appellants damaged federal property. There are limitations on the number of acres of wetlands that the United States can purchase pursuant to the Stamp Act. Under the Stamp Act, 16 U.S.C. § 715k-5, state gubernatorial consent is required for the purchase of easements in the state. North Dakota v. United States, 460 U.S. at 310 n. 13, 103 S.Ct. at 1101 n. 13 (interpreting section 715k-5). The State of North Dakota consented to the acquisition of easements covering 1.5 million acres between 1961 and 1977. Id. at 310, 103 S.Ct. at 1101. Such acquisitions were limited to a specified number of acres in each county. Id. at 305, 103 S.Ct. at 1098-99. The appellants attempted to submit evidence that in Towner County, the State imposed an acreage limitation of 27,000. They also attempted to submit evidence that the acreage of the parcels encumbered with the easements in Towner County was 151, 743. The trial court denied these offers of proof. We hold that the trial court did so properly. The decisions of this Court and the Supreme Court have established that the acreage limitation in the gubernatorial consents applies to the established wetland within a parcel and not to the entire parcel subject to the easement. Thus, in North Dakota v. United States, the Supreme Court stated: As the easement agreements make clear * * * the restrictions apply only to wetlands areas and not the entire parcels. The consents obtained by the United States authorize it to acquire up to 1.5 million “acres of wetlands.” * * * The fact that the easement agreements include legal descriptions of much larger parcels does not change the acreage of the wetlands over which easements have been acquired. 460 U.S. at 311 n. 14, 103 S.Ct. at 1102 n. 14. This obviously means that the restrictions mentioned in the easement agreements do not apply to portions of property, which, although included within the easements’ legal description, do not meet the definition of a wetland as expressed in the easement agreements. This coincides with the clear purpose of identifying acreage limitations in the gubernatorial consents — to limit the amount of property that can be subject to restrictions. Before the United States can prove a person damaged federal property as prohibited by section 668dd(c), it does not have to describe legally each wetland to which the restrictions apply and further determine whether the total wetland acreage exceeds the limits of the gubernatorial consent for a county. The presence of the recorded easement agreements describing wetlands in clear terms and the existence of identifiable wetlands on the parcel are sufficient proof that the United States has a property interest in the wetlands on the parcel. The gubernatorial consent to the acquisition of the federal easements described in the easement agreements has already been given. It cannot now have an effect on that property interest. As the Supreme Court stated in North Dakota v. United States, 460 U.S. at 315, 103 S.Ct. at 1103-04: “Clearly, Congress intended the States to play an important role in the planning process. But once plans have been made and the Governor’s approval has been given, the role of the State indeed is at an end.” Cf. State of Nevada v. United States, 547 F.Supp. 776 (D.Nev.), affirmed, 731 F.2d 633 (1982) (finding that invocation of state consent provision in 16 U.S.C. § 715f was barred by the statute of limitations in 28 U.S.C. § 2409a(f) and in dictum that section 715f must be enforced at the time of the transaction). Thus, it is sufficient for the United States to prove beyond a reasonable doubt that identifiable wetlands were damaged and that those wetlands were within parcels subject to federal easements. See United States v. Welte, 635 F.Supp. at 389-90. 3. Not “persons” Within the Meaning of the Act The appellants contend that the language of the Wildlife Refuge Act does not permit the prosecution of state officials acting in their official capacity. The appellants point to 16 U.S.C. § 668dd(c), which states that “no person shall knowingly disturb, injure, cut, burn, remove, destroy, or possess any real or personal property of the United States.” The Wildlife Refuge Act defines “persons” as “any individual, partnership, corporation, or association.” 16 U.S.C. § 668ee(a). “State” is separately defined as one of the “several States of the United States.” 16 U.S.C. § 668ee(c). According to the appellants, they could not be properly prosecuted because they acted in their official capacity, i.e., as the “State” and never as individuals or “persons” who are prohibited from doing the enumerated acts. A reading of 16 U.S.C. § 668dd(c) in the context of the entire Wildlife Refuge Act refutes the appellants' argument. The Act clearly uses the term “person” in such a way as to include public officials within its meaning. We find no evidence of a contrary legislative intent. Therefore, we conclude that the Wildlife Refuge Act’s express language is conclusive as to its meaning. See Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). For example, in section 668dd(c) itself, an exception from the prohibited acts is made for “persons authorized to manage” waterfowl production areas. It stands to reason that a person authorized to manage these areas would likely be a government official, for instance, a refuge manager from the Fish and Wildlife Service. Or, in some instances, that “authorized person” could be a state official acting under the express authority of the Wildlife Refuge Act in managing, controlling, or regulating “fish and resident wildlife under State law or regulations in any area within the System.” 16 U.S.C. § 668dd(c). Nonetheless, in either case, what is crucial is that the Wildlife Refuge Act does not use the term “authorized official” or just “official” in an attempt to draw a distinction between officials and private individuals. Rather, the operative distinction is between “authorized” and “unauthorized persons.” Clearly the County Water Board members, regardless of whether they were also state officials, were not “authorized persons” under the Wildlife Refuge Act. Moreover, even if the statute were not so clear, the case law demonstrates that federal criminal statutes generally have not made a distinction between acts done by public officials in their official and unofficial capacity. “Criminal activity is private activity even when it is carried out in a public forum and even though the activity can only be undertaken by an official’s use of a state given power.” United States v. Thompson, 685 F.2d 993, 1001 (6th Cir.) (en banc), cert. denied, 459 U.S. 1072, 103 S.Ct. 494, 74 L.Ed.2d 635 (1982) (applying 18 U.S.C. § 1961 of the Racketeer Influenced and Corrupt Organizations Act (RICO) to officials connected with state governor’s office). In addition, although state legislators or legislative officials have an immunity from federal civil suit, see Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), they do not have such immunity from federal criminal prosecution, even for acts done in an official capacity. United States v. Gillock, 445 U.S. 360, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980). In Gillock, a Tennessee state senator, among other things, agreed to introduce state legislation which would enable four persons to obtain master electricians’ licenses which they had been unable to gain through existing examination processes. The United States indicted the senator for violating RICO. The main issue in Gillock was whether the senator had a privilege under the Speech or Debate Clause of the Federal Constitution, federal common law, or the Federal Rules of Evidence which would bar introduction of evidence of the legislative acts of the senator. The Court held that he did not have such a privilege. 445 U.S. at 374, 100 S.Ct. at 1194. As the Court stated, “the cases in this Court which have recognized an immunity from civil suit for state officials have presumed the existence of federal criminal liability as a restraining factor on the conduct of state officials.” Id. at 372, 100 S.Ct. at 1193. Finally, application of 16 U.S.C. § 668dd(e) to the appellants is congruent with the purpose of the Wildlife Refuge Act. Certainly Congress contemplated that state officials acting through state agencies, as well as private individuals, might threaten wetlands on federal easements. This is especially true in light of the substantial regulatory powers of the State of North Dakota over its watercourses. As the United States points out, the County Water Boards consist of appointed officials from the county. If these officials could avoid prosecution, pressure from citizens might convince the County Water Board to do what the citizens could not. Or, it is possible that County Water Board officials might themselves have an interest furthered by the destruction of wetlands on federal easements. The district court found in this case that two of the appellants had private farming operations which were benefited by the County Water Board projects. If the ultimate goal of the Act is to prevent the destruction of wildfowl habitat, that goal would be significantly hampered if state officials were not subject to its criminal provisions. 4. Sufficiency of the Evidence The appellants claim both that there was insufficient evidence to show that each appellant did the proscribed acts and that each appellant violated the Act “knowingly.” We cannot overturn the trial court’s findings unless they are clearly erroneous. United States v. Picone, 773 F.2d 224 (8th Cir.1985) (per curiam). The district court found that Vesterso, Leas, and Anderson “actively participated in the direction and construction of each of these projects,” and that they did so knowing that their actions would affect the federal easements. This finding is not clearly erroneous. The State Engineer testified that he reviewed the applications for the two projects sent to the State Water Commission and that Anderson had signed them. Numerous witnesses testified that Vesterso and Leas contacted them about the projects. Mr. Brunnemeyer testified that Vesterso and Leas visited him before the project across his land was undertaken. They described to Mr. Brunnemeyer where the ditch would go, how it would be dug, and who would pay for it. Mr. Brunnemeyer also mentioned to Vesterso and Leas that his property was subject to a federal easement. Murdock only remembered talking to Vesterso who first mentioned to him the proposed project. Mantei first heard about the project when a neighbor asked him to go to a meeting. Vesterso and Anderson were at the meeting. Mantei mentioned the federal easement on his property at the meeting and was told that “they would check on it.” The surveyor who worked on the project stated that Leas talked to him on the telephone about the proposed project. Vesterso drove along the route of the ditch and pointed out the channel which the surveyor was to follow. The contractor who did the actual digging stated that he dealt with Vesterso as the representative of the County Water Board and that Vesterso came to the field to monitor the progress. The appellants offered no evidence that any one of them was not involved in the project. Instead, the defense primarily concentrated on establishing that each of the appellants acted for the County Water Board in planning and supervising the projects. The trial court’s finding that each of the appellants did the proscribed acts is not clearly erroneous. It is also clear that each appellant knew that the Murdock, Brunnemeyer, and Mantei properties were subject to federal easements. They had constructive knowledge of the easement agreements as public records, the State Water Commission notified them that the parcels were encumbered by federal easements, and some of the landowners told each of them that their properties were subject to federal easements. The appellants counter that they did not know which portions of the parcels were subject to the restrictions in the easement agreements. They claim they did not know because they were unsure whether the acreage limitations established in the consents were exceeded and because the United States had not identified with aerial photographs or drawings where the protected wetlands were on each parcel. If the appellants did not know, their lack of knowledge was caused by “willful blindness.” Here, if the appellants had any doubts, they could have easily consulted the Fish and Wildlife Service to find which areas in the easements were wetlands. There is substantial evidence that the appellants deliberately did not do this. Thus, “knowledge” can be found in this case because each appellant consciously avoided enlightenment. See United States v. Massa, 740 F.2d 629, 642-43 (8th Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985). The trial court’s finding that the appellants knowingly damaged federal property is not clearly erroneous. CONCLUSION We realize that the federal wetland easements in North Dakota have generated controversy and, in some instances, frustration for landowners. See North Dakota v. United States, 460 U.S. at 306, 103 S.Ct. at 1099. We point out, however, that the State of North Dakota and landowners are not without recourse if the easements cause flooding, for example, which results from nonnatural obstructions to water flow. The prudent course in any event requires consultation with the Fish and Wildlife Service before undertaking drainage on parcels covered by easements. As the evidence in this case shows, the Fish and Wildlife Service at one time permitted Mr. Brunnemeyer to clean out, under its supervision, the watercourse running through the easement on his property. There is no evidence in the record indicating that this cooperation would not have been forthcoming in this case. Instead of seeking cooperation, the appellants acted on their own by digging a ditch approximately three feet deep and fifteen feet wide across the easement in clear violation of the Wildlife Refuge Act. . Created in 1981 by the North Dakota State Legislature, Water Resource District Boards control and manage "water resources” in the state. N.D.Cent.Code § 61-16.1-01 (1985). The Board of County Commissioners in each county within the Water Resource District boundaries appoints from three to five members to the Water Resource District Board. N.D.Cent.Code § 61-16-07 (1985). A majority of the members is necessary to transact business. N.D.Cent. Code § 61-16-09 (1985). . The easement encumbering the Murdock property was purchased on May 13, 1965, covering the East Vi of Section 19, Township 161 N., Range 65 West of the 5th P.M., Towner County, North Dakota, from Walter and Katherine Winchell. The easement encumbering the Brunnemeyer property was purchased on January 22, 1965, covering all of Section 24, Township 161, N., Range 65W of the 5th P.M. in Towner County, North Dakota from William and Martha Brunnemeyer. The easement encumbering the Mantei property was purchased on October 29, 1964, covering most of section 6, Township 160 N., Range 65 West of the 5th P.M., Towner County, North Dakota, from Marcel and Dessie Mantei. Under each of the easements, the original landowners of the parcels: for themselves and for their heirs, successors and assigns, covenant and agree that they will cooperate in the maintenance of the aforesaid lands as a waterfowl production area by not draining or permitting the draining, through the transfer of appurtenant water rights or otherwise, of any surface water including lakes, ponds, marshes, sloughs, swales, swamps, or potholes, now existing or reoccurring due to natural causes [on their property] by ditching or any other means; by not filling in with earth or any other material or leveling, any part or portion of the [easement area] on which surface water or marsh vegetation is now existing or hereafter reoccurs due to natural causes; and by not burning any areas covered with marsh vegetation. It is understood and agreed that this indenture imposes no other obligations or restrictions upon the [landowners] and that neither they nor their successors, assigns, lessees, or any other person or party claiming under them shall in any way be restricted from carrying on farming practices such as grazing, hay cutting, plowing, working and cropping wetlands when the same are dry of natural causes, and that they may utilize all of the subject lands in the customary manner except for the draining, filling, leveling, and burning provisions mentioned above. . Under state law, permits are required for draining water from a pond, slough, or lake comprising eighty acres or more. See N.D.Cent. Code § 61-16.1-41 (1985). . This is not to say, however, that the United States has an absolute right to allow a watercourse crossing an easement to become plugged with debris to the extent that it no longer flows and floods adjacent property not subject to a federal easement. In this case, there was some evidence at trial that portions of the watercourses flowing through the Murdock and Brunnemeyer parcels had become unnaturally plugged due to plowing over the watercourses while the watercourses were dry. Such plowing of dry areas is permitted by the terms of the easement agreements. In addition, on the Mantei property large rocks had apparently been dumped in the watercourse. Such unnatural restrictions on the flow may have caused more flooding on adjacent parcels of property than had occurred in previous years. Either the State of North Dakota, as discussed above, or adjacent property owners may have a right to have unnatural restrictions removed from watercourses crossing federal easements. This right of the adjacent landowners could stem from the reasonable use doctrine which would prohibit a neighboring landowner from restricting or expanding the natural flow of surface waters so as to cause an undue burden on the adjacent landowner’s property. See Nilson v. Markestad, 353 N.W.2d 312, 315 (N.D.1984) (citing Lemer v. Koble, 86 N.W.2d 44 (N.D. 1957)). . The legislative history of the 1966 Act is "not illuminating” as to the meaning of section 668dd(i). The appellants cite the legislative history of the Wilderness Act which contains an identical provision. See 16 U.S.C. § 1133(d)(6). As the appellants note, under this provision, Congress intended that "Federal-State relationships concerning water laws and wildlife [be] maintained without change.” H.R.Rep. 2521, 87th Cong., 2d Sess. 27 (1962). Clearly what is meant here is that section 1133(d)(6) of the Wilderness Act is not to be interpreted as changing the body of law which interprets the interaction of federal and state interests in water. This interpretation comports with that of the only case we have located which analyzes this section of the Wilderness Act. In Sierra Club v. Lyng, 661 F.Supp. 1490 (D.Col.1987), the court stated: A plain reading of section [1133(d)(6)] indicates that section is simply a disclaimer. "By its drafting and passage of * * * 16 U.S.C. § 1133(d)(6), Congress meant to do nothing more than to maintain the status quo of basic water law. * * Courts often bear the responsibility of adjudicating the interaction between newly created congressional programs and pre-existing state law. Case-by-case harmonization of a congressional mandate with state law fulfills the assignment given the courts in the separation of powers process contemplated by the Constitution. In section [1133(d)(6)], Congress sanctioned this completely normal process by expressly disclaiming any decisional responsibility in this regard. . The appellants also make two further claims. First, the United States failed to prove that it had a valid easement title. We find this claim to have no merit because the United States introduced certified copies of the easement agreements and offered proof of the Fish and Wildlife Service’s management of the easements. No defects in the title were claimed. Second, the appellants claim that the easement document is so vague, in not including watercourses, that it fails to give due notice. The definition in the easement, however, uses several terms "lakes, ponds, marshes, sloughs, swales, swamps and potholes” whose meaning is clear to "ordinary people.” See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). . See S.Rep. No. 1463, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Admin. News 3342, 3347; Conf.R. No. 2205, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Admin.News 3358; H.R.Rep. No. 1168, 89th Cong., 2d Sess. . When the Act intends to mean "private individual,” it uses that very term. See 16 U.S.C. § 668dd(d)(2) where it states that "[njotwithstanding any other provision of law, the Secretary of the Interior may not grant to any Federal, State, or local agency or to any private individual or organization any right-of-way, easement, or reservation in, over, across, through, or under any area within the system in connection with any use permitted by him under paragraph (1)(B) of this subsection unless * * (Emphasis added.) . This distinction is highlighted in a section which states "[a]ny person authorized by the Secretary of the Interior to enforce the provisions of this Act or any regulations issued thereunder, may, without a warrant, arrest any person violating this Act or regulations in his presence or view, and may execute any warrant or other process issued by an officer or court of competent jurisdiction to enforce the provisions of this Act or regulations." 16 U.S.C. § 668dd(f) (emphasis added). . This is also consistent with the established principle that corporate officers may be held personally liable for acts done in their capacity as corporate officials. United States v. Richmond, 700 F.2d 1183, 1194 (8th Cir.1983) (prosecution under 18 U.S.C. § 1001). . Here we only infer the knowledge of the likely damage to federal property and not the specific intent to damage such property since section 668dd(c) does not require a specific intent. See Welte, 635 F.Supp. at 390 n. 4.

United States v. City of Fort Pierre

FAGG, Circuit Judge. The Fort Pierre Slough (Slough) is located within the City of Fort Pierre, South Dakota (City). In August of 1980, the City, for legitimate health and safety reasons, constructed two unfinished streets across the Slough. In July of 1981, the Army Corps of Engineers (Corps) brought suit against the City claiming that the Slough is a “wetland” within the jurisdiction of the Corps and claiming further that the City violated sections 301 and 404 of the Clean Water Act, 33 U.S.C. §§ 1311, 1344, when it failed to obtain a permit before constructing streets across the Slough. No other basis of jurisdiction was asserted by the Corps, and the only jurisdictional issue fully and fairly litigated below was the issue of the Corps’ jurisdiction over the Slough as a wetland. Following trial, the district court concluded that the Slough was a wetland within the jurisdiction of the Corps and that the City had violated the Clean Water Act when it failed to obtain a permit prior to beginning construction of the two streets. We disagree and therefore reverse the decision of the district court, 580 F.Supp. 1036 (D.S.D. 1983). I. Legislative Framework In enacting the Clean Water Act, 33 U.S.C. §§ 1251-1376, Congress intended “to restore and maintain the chemical, physical, and biological integrity of our Nation’s waters,” 33 U.S.C. § 1251(a), by enacting “a comprehensive program for controlling and abating water pollution,” Train v. City of New York, 420 U.S. 35, 37, 95 S.Ct. 839, 841, 43 L.Ed.2d 1 (1975). To accomplish this goal, Congress provided that “the discharge of any pollutant * * * [into the waters of the United States] shall be unlawful.” 33 U.S.C. 1311. This general prohibition is not without exception, however. For example, section 404 of the Clean Water Act authorizes the Secretary of the Army to. “issue permits * * * for the discharge of dredged or fill material into the [waters of the United States].” 33 U.S.C. § 1344(a); see also 33 U.S.C. § 1362(7) (defining “navigable waters” to mean “waters of the United States”). The authority to issue these permits has been delegated by the Secretary to the Corps, 33 C.F.R. 325.8, which, consistent with this delegation, has promulgated a regulation defining the term “waters of the United States” to include wetlands, 33 C.F.R. § 323.2, and further defining the term “wetlands” to mean “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” Id. § 323.2(c). When determining whether the Corps’ jurisdiction over our Nation’s wetlands extends to a particular area, a court must bear in mind Congress’ intent to extend this jurisdiction to the full extent permissible under the Constitution. See United States v. Tilton, 705 F.2d 429, 431 (11th Cir.1983). We do not question the Corps’ broad, plenary authority to protect, maintain, and restore our Nation’s wetlands, and consequently concede that in many, if not most, cases, areas that fall within the literal language of the Corps’ “wetlands” definition will also fall within the Corps’ section 404 permit jurisdiction. However, we do not believe that a determination of the Corps’ jurisdiction can be made formalistically or in a vacuum without reference to the particular situation before us. In the present case, for example, the facial appearance of the Slough falls within the Corps’ definition of a wetland since the Slough as it presently exists is frequently inundated and saturated with surface water, and since the vegetation now found in the Slough consists almost exclusively of wetland-type vegetation. Despite the Slough’s appearance, however, we conclude that the Slough is not a wetland as contemplated by Congress in passing the Clean Water Act. We reach this conclusion by focusing upon the peculiar facts and unique circumstances surrounding the Slough, its history, and its origin as a potential wetland. II. Discussion The Fort Pierre Slough is a privately owned area located within the City of Fort Pierre. Today, the Slough, which was originally a side-channel of the Missouri River, is essentially rectangular in shape and covers approximately 25 acres of land near to, although entirely separated from, the Missouri River. The Slough was first separated from the Missouri River in 1907, when a railroad bridge and approach were built across the northern (upstream) end of the Slough. The Slough’s northern end was further separated from the Missouri River in 1927 and 1962 when highway bridges were constructed just below the original railroad bridge and approach. Following its separation from the Missouri River in 1907, the Slough gradually dried and small trees and willows began to grow in the area. Over the course of approximately 60 years, the entire Slough area became a predominantly dry, thickly wooded river bottom, exhibiting none of the characteristics normally associated with a wetland-type ecological system. During this period, the residents of Fort Pierre used the Slough for a variety of beneficial activities. These activities included the raising of cattle, sheep, and hogs; the gathering of asparagus, mushrooms, and berries; the hunting and trapping of wildlife; and the cultivation of a fruit orchard. Any standing water found in the Slough during this period resulted only from heavy rains and resultant runoff, since no hydrological connection exists between the Slough and the Missouri River. The essentially dry, river bottom characteristics of the Slough continued unchanged until 1968. In 1968, the Corps, in conjunction with routine river maintenance, dredged more than 50,000 cubic yards of sand from the Missouri River. This sand was pumped into the southern (downstream) end of the Slough. The Corps eventually filled an area of approximately 14 acres and pumped a total of 144,400 cubic yards of fill into the southern end of the Slough. These activities completely separated the southern end of the Slough from the Missouri River and prevented any surface water from flowing out of the Slough. As a direct result of the Corps’ dredging activities, surface water became trapped in the Slough. Over time, this water has become stagnant and polluted. As a result, virtually all of the Slough’s trees have died, and since 1968, only cattails and other wetland-type vegetation have thrived in the stagnant and often polluted water covering the Slough. These dramatic changes have given the Slough the facial appearance of a wetland. Absent their own filling activities, the conditions relied upon by the Corps as a basis for their jurisdiction would not exist. We do not believe the Corps’ wetland jurisdiction extends to the Fort Pierre Slough. Here, prior to 1968, the Slough was not a wetland and exhibited none of the characteristics associated with a wetland. Further, any wetland characteristics now exhibited by the Slough did not result from natural evolution and were not the intended or anticipated result of private or governmental activity. Rather, the Slough’s wetland characteristics resulted entirely as the inadvertent, unintended byproduct of the Corps’ dredging activity. The Corps’ purpose in filling the southern end of the Slough was the disposal of dredged material. The Corps did not intend and apparently never considered the effect their filling activity might have on the remainder of the Slough. We do not believe the Clean Water Act authorizes the Corps to assert jurisdiction in a situation in which privately owned land, not otherwise within the Corps’ jurisdiction, exhibits wetland characteristics only as an incidental result of unrelated river maintenance. To decide otherwise would allow the Corps to enlarge its jurisdiction beyond the scope originally intended by Congress. Further, to find the Slough as it now exists to be a wetland would be antithetical to the goals Congress sought to achieve in passing the Clean Water Act. Not only is the water in the Slough stagnant and polluted, but the Slough, which once provided the residents of the City with many benefits, is now devoid of wildlife, supports no fish or fowl, and is not conducive to recreation or other significant use by the public. In holding that the Slough does not constitute a wetland, we do not decide whether Congress could assert jurisdiction over the Slough if it chose to do so. Further, our holding does not challenge the Corps’ jurisdiction with regard to any other artificially created wetland-type environment. Rather, our holding is limited to the situation in which the Corps, as an unintended byproduct of ordinary river maintenance, inadvertently creates a wetland-type ecological system on private property where no such system previously existed. The decision of the district court finding the Slough to be a protected wetland under the Clean Water Act is reversed.

United States v. Riverside Bayview Homes, Inc.

MERRITT, Circuit Judge. This is an environmental case concerning “wetlands” and the jurisdiction of the United States Army Corps of Engineers over them. The government claims that defendants, Riverside Bayview Homes, Inc., and Allied Aggregate Transportation Company, violated section 301(a) of the Federal Water Pollution Control Act, 33 U.S.C. § 1311(a) (1976), and regulations concerning “wetlands” purportedly issued under that Act. The claimed violation occurred when the defendants deposited fill material on Riverside’s land, which the government asserts is a “wetland,” without obtaining a permit from the Corps of Engineers as required by the Act. Judge Cornelia Kennedy, sitting as a District Judge, issued a permanent injunction prohibiting further filling on a large portion of Riverside’s property and a declaratory judgment holding one of the Corps regulations unconstitutional. Both parties then appealed. On the first appeal, 615 F.2d 1363 (6th Cir.1980), this Court remanded the case for further proceedings in the District Court in light of a new regulation promulgated by the Corps. That regulation, found at 33 C.F.R. § 323.2(c) (1983), specifically altered the definition of “wetlands” relied upon by Judge Kennedy in the original District Court proceeding. We conclude that the District Court on remand erred in interpreting the new definition of wetlands to include defendant’s property and in continuing the permanent injunction under the new regulation. We also vacate as moot the declaratory judgment issued by the District Court in the first proceeding. I. THE LAND IN QUESTION Riverside owns approximately eighty acres of undeveloped land north of Detroit in Harrison Township, Michigan, which it had planned to develop for housing. It is located in a suburban area approximately a mile west of Lake St. Clair and south of .South River Road, roughly paralleling the Clinton River. Its southern boundary is separated from the man-made Savan Drain by two ten-acre parcels. Its western boundary is formed by Jefferson Avenue, a heavily travelled road. Riverside’s property comprises one sixty-acre parcel and a partially adjoining twenty-acre parcel. The sixty acres running along Jefferson Avenue were actively farmed in the past. In 1916, the sixty-acre tract was platted as a subdivision, and storm drains and fire hydrants were installed. The remaining twenty-acre parcel was neither platted nor improved. In the early and mid-1950’s, some efforts were made by the owner to develop the platted subdivision. In 1960, the newly-formed Riverside Corporation bought the property. According to Riverside, its efforts to develop the property along with the surrounding area during the 1960’s were stymied by an adjacent property owner who blocked an effort to reroute a street dissecting the property, and by a local zoning, ordinance which forced it to fill the property to a specific elevation. In 1973, unprecedented high water levels on the Great Lakes, including Lake St. Clair, located a mile east of the Riverside land, prompted emergency action by Harrison Township and the Corps of Engineers to protect area homes and businesses from water damage. Emergency measures included building a semicircular dike which dissected the twenty-acre parcel and extended southeast across the sixty-acre tract, and filling a ditch along Jefferson Avenue with dirt, thereby destroying the drainage on the western border of the property. In furtherance of its development plans, Riverside contracted with Allied Aggregate Transportation Company in the fall of 1976 to have dirt fill hauled to the property. It was unclear whether or not the land would be subject to the Corps’ regulatory jurisdiction. Accordingly, a Riverside stockholder met with Corps personnel to discuss whether a permit must be obtained in order to proceed with filling the land. Riverside submitted an incomplete application for a permit in November, 1976. Before the permit application had been acted on by the Corps, Riverside began placing fill on the property north of the dike. On December 22, 1976, Riverside was ordered by the Corps to cease and desist from further filling. When Riverside continued to fill, the Corps asked the United States Attorney to bring this enforcement proceeding. On January 7, 1977, the District Court entered a temporary restraining order prohibiting Riverside and Allied from engaging in further filling, pending a full evidentiary hearing. After that hearing, which encompassed seven days of testimony, Judge Kennedy issued an opinion granting the government’s motion for a preliminary injunction. Judge Kennedy also held unconstitutional a Corps regulation requiring the processing of an application for a permit to be postponed once the United States Attorney has begun enforcement proceedings. On June 20, 1979, the District Judge issued the court’s final judgment holding a large portion of Riverside’s land to be a wetland subject to Corps regulation under the Federal Water Pollution Control Act. Judge Kennedy permanently enjoined further filling on that portion of the property until the Corps issues a permit to Riverside. At the same time, she issued an order holding defendants in contempt of court because they had continued to fill the property. The defendants were ordered to remove the fill, which they have apparently done. Since that time, Riverside’s application for a Corps permit has been processed and denied. II. THE WETLANDS DETERMINATION A. Statutory and Regulatory Background The Federal Water Pollution Control Act was enacted to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (1976). The Act declares that “it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.” Id. § 1251(a)(1). Section 301 of the Act states that, except as permitted under certain exceptions, “the discharge of any pollutant by any person shall be unlawful.” Id. § 1311(a). One of the express exceptions to this rule is contained in section 404, 33 U.S.C. § 1344, which authorizes the Corps to issue permits for the disposal of dredged or fill materials into “navigable waters.” The Act contemplates that applications for section 404 permits are to be evaluated by the Corps under regulations developed jointly by the Environmental Protection Agency and the Corps. See id. § 1344(b); 40 C.F.R. § 230 (1983). These regulations are supposed to identify the factors to be used in determining whether filling will have an adverse impact on water quality.' A person who fills or otherwise discharges pollutants into “navigable waters” without a permit subjects himself to civil or criminal penalties. See 33 U.S.C. § 1344(h)(1)(G) (violations of permit program entail “civil and criminal penalties and other ways and means of enforcement”). The “navigable waters” which the Federal Water Pollution Control Act was meant to protect are defined in the Act as “the waters of the United States, including the Territorial seas.” Id. § 1362(7). The Act does not mention or define “wetlands.” The Corps and the EPA, however, developed regulations pursuant to the Act covering areas denominated as “wetlands” as well as the congressionally specified “navigable waters.” These regulations, including the permit procedures noted above, seek to prohibit tampering with wetlands without the express permission of the agencies. B. The Wetlands Definition At the time that this action was initially brought, the Corps regulation defined wetlands and provided that a permit must be obtained for filling of Freshwater wetlands including marshes, shallows, swamps and similar areas that are contiguous or adjacent to other [sic] navigable waters and that support freshwater vegetation. “Freshwater wetlands” means those areas that are [1] periodically inundated and that [2] are normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction. 33 C.F.R. § 209.120(d)(2)(i)(h) (1976) (emphasis added). The question before the District Court in the initial proceeding was whether the Riverside land possessed the characteristics set forth in the above definition and thus should be classified as a wetland subject to the Corps’ regulatory jurisdiction. Judge Kennedy found that the land was contiguous to a navigable water, Black Creek, which is a tributary of Lake St. Clair. Furthermore, she found that because of the type of soil found on the land, the unfilled Riverside property was “characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction.” These two aspects of the wetlands definition having been satisfied, the District Court focused on the question of whether the land was “periodically inundated.” Judge Kennedy’s resolution of this issue was based on what she admitted was an unavoidably “arbitrary” interpretation of the term “periodic” as it is used in the Corps regulation. She accepted the standard dictionary definition, “flooded,” as the meaning of “inundated,” but was compelled to rely on a rough statistical plotting of the potential for flooding of the Riverside land in order to determine whether it was “periodically inundated,” or flooded on a “periodic” basis. Judge Kennedy found that the Riverside land was rarely if ever inundated. From testimony concerning Lake St. Clair which established that a water level of 575.0 feet would be reached or surpassed only about two percent of the time, she concluded that it was difficult to ascertain whether the Riverside land south and east of the contour line of 575.5 feet was ever flooded. She explained: The mean of the elevations on the south and east of defendants’ property is 574.6, ranging from 575.70 to 574.45. Using the monthly mean level of Lake St. Clair ... and adding six inches, the normal variation, it is immediately apparent that there have been long periods of time when none of the property was inundated by water from contiguous or adjacent navigable waters. Indeed, this has been true most of the time. Opinion and Order Granting Motion for Preliminary Injunction in Part at 6 (emphasis added). Judge Kennedy noted that the high-water levels in the period from 1973-75 were unprecedented. From this and other statistical information, she extrapolated that “there have been periods in only 14 of the 80 years of recorded lake levels in which the monthly mean inundated the property, — or, 17% of the time,” and that “[s]ome of the higher elevations have been inundated only during the last recent unprecedented high water or have never been inundated.” Id. (emphasis added). Despite these misgivings, Judge Kennedy found that there was sufficient evidence from which to conclude that the land had been “inundated.” Accordingly, she then turned to the question of whether that inundation was “periodic,” observing that “[t]he Court is left in the unenviable position of having to define ‘periodic’ without knowing the reason for the adoption of this standard.” Id. at 7. She found that the Riverside land at the contour line of 575.5 feet above sea level had been inundated on four to six occasions in the past eighty years. Acknowledging that there was no precedent for her analysis, Judge Kennedy reasoned: If treating the years 1972-1975 and 1952-1953, as one occurrence, then the lake levels have exceeded 575 feet only four times (1928, 1952-1953, 1969 and 1972-1975). If the level of 574.9 feet were to be considered, the number of occurrences would increase to six ... [I]t is clear that determining the level at which the inundation would be considered “periodic” is difficult and perhaps somewhat arbitrary. The Court must choose the point at which an occurrence became periodic.. It has selected more than five. It therefore determines that the appropriate level is 575 feet, plus the half-foot of normal monthly fluctuation [of the mean high water level , of Lake St. Clair] above the mean. Id. On this basis, the District Court enjoined Riverside from placing fill below the 575.5 foot contour line without first obtaining a Corps permit. Under this ruling, some eighty percent of the land was denominated as a “wetland,” and therefore was not usable as contemplated by the landowner without the government’s permission. In 1977, after Judge Kennedy’s initial permanent injunction was issued, the Corps wetlands definition on which the ruling was based was repealed and replaced. Wetlands are now defined as those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. 33 C.F.R. § 323.2(c) (1983). In the preamble to the new regulations, the Corps explained that the wetlands definition had been changed “to eliminate several problems and achieve certain results.” The reference to “periodic inundation” was deleted because [m]any interpreted that term as requiring inundation over a record period of years. Section 404 is intended to regulate discharges of dredged or fill material into the acquatic.system as it exists, and not as it may have existed over a record period of time. 42 Fed.Reg. 37128 (July 19, 1977) (emphasis added). The preamble goes on to indicate that the new definition “pertains to an existing wetland and requires that the area be inundated or saturated by water at a frequency and duration sufficient to support aquatic vegetation.” Id. For similar reasons, the Corps also eliminated the term “normally” in the wetlands definition, replacing it with the phrase, “and that under normal circumstances do support.” The preamble notes that the term “normally” was used in the original version of the definition “to respond to those situations in which an individual would attempt to eliminate the permit review requirement of Section 404 by destroying the aquatic vegetation, and to those areas that are not aquatic but experience an abnormal presence of aquatic vegetation.” Id. (emphasis added). Significantly, the preamble notes that it is still the case under the new regulation that “[t]he abnormal presence of aquatic vegetation in a non-acquatic area would not be sufficient to include that area within the Section 404 program.” Id. III. APPLICATION OF WETLANDS REGULATIONS TO FACTS The changes in the Corps wetlands definition meant that the task before Judge Gilmore was essentially that of applying this new definition to the facts as found by Judge Kennedy in the earlier proceeding to determine whether the Riverside property below the elevation of 575.5 feet above sea level is or is not a wetland. Our order remanding this case to the District Court for further examination in light of the new regulation did not make the nature of the inquiry clear, however. We did not point out to Judge Gilmore precisely what we expected him to do. We should have directed the District Court to consider the voluminous evidence from the seven days of testimony given earlier and to make a finding as to whether the Riverside property to the south and east of the contour line of an elevation of 575.5 feet, as it exists now, should be classified as a wetland. Instead, in the absence of clear directions, the District Judge on remand simply found from a commonsense reading of the new language that the amended regulation was “broader than its predecessor.” Presumably, his reasoning from there was that, since Judge Kennedy had found that the property was “periodically inundated,” and since it does support some aquatic vegetation, it must therefore be inundated “at a frequency and duration sufficient to support, and that under normal circumstances [does] support” wetlands vegetation. It does not necessarily follow, however, that because an area has been flooded five times in more than eighty years that, “as it exists” now, it is “inundated at a frequency and duration sufficient to support and that under normal circumstances [does] support” wetlands vegetation. The new regulation makes clear that it is the present occurrence of inundation or flooding sufficient to support wetlands vegetation, not the mere presence of such vegetation from some other cause, that determines whether a particular area is a wetland. Thus, as we understand it, the presence of inundation on the land “as it exists” now, sufficient to cause the growth of aquatic vegetation, is necessary to satisfy the wetlands definition. Neither inundation nor aquatic vegetation would be sufficient, standing alone, to bring a piece of land within the definition. Both must be present, and the latter must be caused by the former. Were this not so, then areas which inexplicably support some species of aquatic vegetation, but which are not normally inundated, would fall within the wetlands definition. Such a perverse result could not have been what the Corps contemplated in promulgating the regulation. Indeed, as noted earlier, the Corps expressly adverted to the situation of “areas that are not aquatic but experience an abnormal presence of aquatic vegetation” and emphasized that such lands were not intended to be covered by the regulations. Turning now to the facts as found by Judge Kennedy, and applying our interpretation of the new wetlands definition to those facts, we conclude that the Riverside land is not a wetland. We note at the outset that Judge Kennedy did not find that the land, “as it exists” now, is inundated. Nor is there evidence in the record to support such a finding. After examining the evidence, Judge Kennedy found that the land had only been flooded on four to six occasions in the eighty years of recorded history of the area. Although flooding of such infrequency might properly be called “periodic,” it cannot fairly be said that it describes the land “as it exists.” Judge Kennedy did find that, quoting from the old regulation, the Riverside land was characterized “by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction.” Significantly, however, she found that the source of this vegetation was the type of soil found on the property and not the few instances of flooding. The evidence supports her determination that the infrequent inundation caused by the adjacent navigable water, Black Creek, was not the cause of the wetland vegetation. Thus she did not find, and on the evidence presented could not have found, that the land, as it exists now, is “inundated at a frequency and duration sufficient to support, and that under normal circumstances [does] support” the wetlands vegetation. Nor did she consider or make any findings concerning the question whether the Riverside land fits the Corps definition of an area which is technically not a wetland, because it is not inundated, but which experiences an abnormal presence of aquatic vegetation. In the absence of evidence that the property as it exists now is frequently flooded and that the flooding causes aquatic vegetation to grow there, the government’s case is insufficient to justify a classification of this property as a wetland subject to the jurisdiction of the Corps of Engineers. The injunction is therefore vacated. IV. NARROW INTERPRETATION OF “WETLANDS” REGULATION NECESSARY In deciding that the District Court erred on remand in failing properly to assess the impact of the new wetlands definition upon Judge Kennedy’s earlier wetlands determination, we construe the regulation containing the definition somewhat narrowly in order to avoid serious questions concerning the validity of the definition itself under the Act. In delegating authority to the Corps under the Federal Water Pollution Control Act, Congress defined the subject matter intended to- be protected by the statute as the “navigable waters.” Section 502(7) defines “navigable waters” as “waters of the United States including the Territorial seas.” The language of the statute makes no reference to “lands” or “wetlands” or flooded areas at all. Congress may, indeed, have meant to extend the protections of the Act beyond the straightforward definition it provided of “navigable waters.” The question, however, is how far away from “navigable waters” Congress contemplated that the regulations under the Act could drift. It is certainly not clear from the statute that the Corps’ jurisdiction goes beyond navigable waters and perhaps the bays, swamps and marshes into which those navigable waters flow. Neither is it clear that Congress intended to subject to the permit requirement inland property which is rarely if ever flooded. Nor is it clear that the statute was intended to cover a piece of property a mile inland from Lake St. Clair which has been farmed in the past and is now platted and laid out for subdivision development with the fire hydrants and storm sewers already installed. To prohibit any development or change of such property by the landowner raises a serious taking problem under the fifth amendment. It is well established that government regulation can effect a fifth amendment taking. The rationale, as stated by Justice Brennan, is that “[pjolice power regulations such as zoning ordinances and other land-use restrictions can destroy the use and enjoyment of property in order to promote the public good just as effectively as formal condemnation or physical invasion of property.” San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 652, 101 S.Ct. 1287, 1304, 67 L.Ed.2d 551 (1981) (Brennan, J., dissenting). Recently, in Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979), the Supreme Court addressed a problem markedly similar to this one and declared: Although the Government is clearly correct in maintaining that the now dredged Kuapa Pond falls within the definition of “navigable waters” as this Court has used that term in delimiting the boundaries of Congress’ regulatory authority under the Commerce Clause, ... this Court has never held that the navigational servitude creates a blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation. Id. at 172, 100 S.Ct. at 388 (citations omitted). In Kaiser Aetna, the Supreme Court found that the government’s attempt to create a public right of access to a pond which was improved so as to be capable of supporting navigation but had always been considered private property “goes so far beyond ordinary regulation or improvement for navigation as to amount to a taking ____” Id. at 178, 100 S.Ct. at 392 (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922)). The Court found the Kaiser Aetna petitioners’ interest in their dredged marina-style subdivision community which included Kuapa Pond “strikingly similar” to that of owners of fast land adjacent to navigable water, like Riverside, noting that there was no doubt that “when the Government wishe[s] to acquire fast lands, it [is] required by the Eminent Domain clause of the Fifth Amendment to condemn and pay fair value for that interest.” Id. at 177, 100 S.Ct. at 391. The Court concluded: [I]f the Government wishes to make what was formerly Kuapa Pond into a public aquatic park after petitioners have proceeded as far as they have [in developing it as a private subdivision] it may not, without invoking its eminent domain power and paying just compensation, require them to allow free access to the dredged pond while petitioners’ agreement with their customers calls for an annual $72 regular fee. Id. at 180, 100 S.Ct. at 393, The parallels between Kaiser Aetna and this case are obvious and hardly require elaboration. We note only that we see a very real taking problem with the exercise of such apparently unbounded jurisdiction by the Corps, a problem we avoid by construing the regulation containing the amended wetlands definition as limited to lands such as swamps, marshes, and bogs that are so frequently flooded by waters from adjacent streams and seas subject to the jurisdiction of the Corps that it is not unreasonable to classify them as lands which frequently underlie the “waters of the United States.” See 2A Sutherland On Statutory Construction § 45.11, at 33-34 (C. Sands ed. 1973) (discussing presumption of constitutionality of statutes). Accordingly, we interpret the words “inundated at a frequency and duration sufficient to support, and that under normal circumstances [does] support [wetlands vegetation]” as set forth in the amended regulation to require frequent flooding by waters flowing from “navigable waters” as defined in the Act. The definition thus covers marshes, swamps, and bogs directly created by such waters, but not inland low-lying areas such as the one in question here that sometimes become saturated with water. V. THE DECLARATORY JUDGMENT During the two and one-half years of litigation of the issue of the Corps’ jurisdiction over Riverside’s property, the Corps declined to process an application for a permit to fill the area in question. The agency was precluded by regulation from acting on Riverside’s application because the United States Attorney had initiated enforcement proceedings after it was discovered that Riverside was engaged in unauthorized filling. The Corps regulation provides: If the District Engineer refers a case to the local U.S. Attorney or if criminal and/or civil action is instituted against the responsible person for any unauthorized activity, the District Engineer shall not accept for processing any application for a Department of the Army permit until final disposition of the referral action and/or all judicial proceedings, including the payment of all prescribed penalties and fines and/or completion of all work ordered by the court. Thereafter, the District Engineer may accept an application for a permit; provided, that with respect to any judicial order requiring partial or total restoration of an area, the District Engineer, if so ordered by the court, shall supervise this restoration effort and may allow the responsible persons to apply for a permit for only that portion of the unauthorized activity for which restoration has not been so ordered. 33 C.F.R. § 326.4(e) (1982) (current version as amended at 33 C.F.R. § 326.3(c)(3) & n. 2 (1983)). Riverside asked the District Court in the initial enforcement proceeding to issue a declaratory judgment declaring this regulation to be unconstitutional as a de facto taking of Riverside’s property. In a memorandum opinion, Judge Kennedy held that the postponement of processing of Riverside’s application for a permit under the regulation “effect[s] a quasi-taking of property unless and until a person relinquishes any right the person may have to engage in litigation with the Corps of Engineers.” Opinion of the Court at 9. Moreover, Judge Kennedy held that the deferral was a sanction unauthorized by the section of the Federal Water Pollution Control Act which gives the Corps the authority to promulgate regulations to carry out its functions. Id. Judge Kennedy interpreted the regulation as denying defendant “the right to litigate the constitutionality of a statute or regulation on peril of losing its rights to pursue its administrative adjudication remedies.” See id. Apparently, she understood the regulation to compel the defendant to choose between litigating his claim that the regulation effects an unconstitutional taking of his property, and proceeding with his application for an after-the-fact permit which, if granted, would enable him to continue with his development project. Riverside’s opposition to the regulation postponing the permit process cannot alter the fact that nothing in the regulation now adversely affects its interests. We construed the Corps wetlands definition narrowly and concluded that Riverside’s property is not a wetland and that, therefore, the Corps has no jurisdiction over it. Riverside is now free to develop its land as it wishes. Moreover, the challenged regulation has since been amended to suggest a strong presumption in favor of processing applications for after-the-fact permits. See 33 C.F.R. § 326.3 & n. 2 (district engineer shall accept application for after-the-fact permit for unauthorized filling unless state or local enforcement action is pending, and “[tjhis exception to the general rule of accepting after-the-fact applications should be used on a limited basis, only for those cases which merit special treatment”). Therefore, the question is moot. The problem before us clearly is not “capable of repetition, yet evading review.” See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969) (case concerning burden placed on nomination process for statewide office was not moot but was “capable of repetition, yet evading review,” because same restriction on plaintiff’s candidacy that had adversely affected him in 1968 could do so in 1972 election); International Longshoremen’s and Warehousemen’s Union v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650 (1954) (declaratory judgment vacated because questions of scope and constitutionality of legislation must not be decided “in advance of its immediate adverse effect in the context of a concrete case.”). We should not pass unnecessarily on the constitutionality of the Corps regulation. The declaratory judgment of the District Court is therefore vacated and the claim dismissed. APPENDIX . For a pictorial depiction of the property, see the Appendix to this opinion. . The term "Territorial seas” is defined as "the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles.” Id. § 1362(8). . There was evidence adduced during the evidentiary hearing which strongly indicated that the Riverside land may fit within this category of land which is "not aquatic but experience[s] an abnormal presence of aquatic vegetation.” Not only was the land farmed for many years, it has been established that there are many species of vegetation growing there now that could not be classified as purely wetlands vegetation. For example, it is significant that on cross-examination by Riverside’s attorney, the government’s main witness admitted that the "only positive knowledge” he had about the vegetation on the land was that there were cattails. See Government’s App. at 75. Furthermore, this witness testified that in addition to cattails, phragmites, marsh grasses and other wetland-type vegetation, he discovered ash, red maple, cottonwood, and sedge on the property. He admitted that these were not necessarily wetland-type vegetation. We do not find that Judge Kennedy’s finding that there was a "prevalence” of wetland-type vegetation on the property was clearly erroneous; rather, we simply note that her finding to that effect was based on the old regulation and did not go to the issue of whether the presence of wetland-type vegetation on the land was "abnormal" in the sense that it was supported not by inundation but by unusual soil conditions. . We note that the Fifth Circuit has recently held that the Corps’ wetlands definition is consistent with the intent of the Federal Water Pollution Control Act. See Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.1983). . Exhibit A, Defendant’s Memorandum of Law, United States v. Riverside Bayview Homes, Inc., No. 770041 (E.D.Mich.1977).

United States v. Riverside Bayview Homes, Inc.

On Rehearing No member of the Court having moved for en banc consideration of this case and the panel being of the view that reconsideration is not warranted, the government’s petition, as supported by amicus curiae organizations, is hereby denied. By an unusual construction of the words “navigable waters” in the Clean Water Act, the government and organizations filing as amicus curiae would apparently have the Court by injunction prevent the owner from using low lying land areas where water sometimes stands and where vegetation requiring moist conditions grows. Such low lying lands would be converted into “navigable waters” by the Court without regard to either their proximity to navigable waters, streams or seas or the inundation of such lands by such navigable waters. Under such a construction low lying backyards miles from a navigable waterway would become wetlands. Neither the government nor amicus suggests an adequate limiting principle. Such a construction is overbroad and inconsistent with the language of the Act in question, and the Court declines to adopt such a construction. ENTERED BY ORDER OF THE COURT.

United States v. Byrd

MOORE, Senior Circuit Judge. The defendant Donald Byrd appeals from an order granting the plaintiff’s (United States) motion for summary judgment and from the judgment thereon, entered on August 11, 1978 in the United States District Court for the Northern District of Indiana, Honorable Robert A. Grant, District Judge, whereby Byrd and two other defendants, who have not appealed, were permanently enjoined “from placing any fill or other material of any kind into the waters or the adjacent or contiguous wetlands of Lake Wawasee, Indiana until such time as a valid Department of Army permit is issued in the discretion of the District Engineer, United States Army Engineer District, Detroit.” I. Defendant Byrd, a.golf professional and a land developer, owns land in Kosciusko County, Indiana which includes a golf course bordering Lake Wawasee in Indiana. The lake is a 2,500 to 3,000 acre fresh water lake used by interstate travelers and seasonal residents for water-related recreational purposes. Prior to June 15, 1976, Byrd and other lakeshore owners engaged in fill projects in an effort to convert the wetlands (swamps) bordering Lake Wawasee into land suitable for residential development. The discharge of fill onto this land was performed without a state water quality certification or a permit from the Army Corps of Engineers (the “Corps”). The Federal Water Pollution Control Act (“FWPCA”) makes the discharge into the waters of the United States of any “pollutant”, including dredged spoil, rock, sand and cellar dirt, by any person, unlawful, unless permits or other approvals have been obtained. 33 U.S.C. §§ 1311(a), 1362(6) and (7) (1976). Under § 404 of the FWPCA Amendments of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. § 1344 (1976), the Secretary of the Army was authorized to act through the Chief of Engineers, who, in turn, was authorized to issue permits for the discharge of dredged or filled material into navigable waters under certain conditions and procedures. The Corps planned to assert its new authority in stages. In Phase I, which became effective with the issuance of the regulations, the Corps assumed permit authority over all navigable waters traditionally within the Corps’ jurisdiction. In Phase II, to be effective on July 1, 1976, the Corps extended its control to other navigable waters newly defined to include intrastate lakes that are utilized by interstate travelers for water-related recreational purposes and freshwater wetlands that are contiguous or adjacent to other navigable waters (including such intrastate lakes) and support freshwater vegetation. In the regulations which set forth the phase schedule, the Corps included an exception in the time schedule. The regulation stated that the permit procedure would apply even before a navigable body of water came under the phase program if the District Engineer determined that water quality concerns indicated the need for such action. Because Byrd and the other landowners had begun to accelerate their fill projects around Lake Wawasee, the Corps District Engineer held that the cumulative impact of all this activity would threaten the wildlife balance and water quality in the area. Therefore, he accelerated the Corps’ jurisdiction over Lake Wawasee and its wetlands. On June 15, 1976, Byrd was advised that no further work could be done on the land fill projects until he obtained a permit from the Corps. On June 24, the Corps officials warned Byrd again and said that if the work continued, they would seek a court order. Byrd, believing that the Corps had no jurisdiction until July 1, again began filling in the land at a faster pace. This action was filed on June 28, 1976, along with a motion for a preliminary injunction. The court granted an ex parte motion for a temporary restraining order. At a hearing concerning the preliminary injunction motion on July 6, 1976, the court heard extensive testimony. The hearing lasted a second day and sometime later the court with counsel went to view the Byrd property for itself. In the trial court’s view the legal issues were whether Byrd’s property was “wetlands” within the meaning of the regulations and whether the Corps had jurisdiction to regulate activity on Lake Wawasee and its wetlands. The defendants conceded that Lake Wa-wasee is an intrastate lake over which the Corps could assert jurisdiction. They disputed, however, the claim that the land being filled was “wetlands” within the meaning of the regulation, 33 C.F.R. § 209.-120(d)(2)(i)(h). That regulation defined freshwater wetlands as “areas that are periodically inundated and that are normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction. . . . ” Apparently no one disputes the fact that some areas of Byrd’s land are characterized by the prevalence of vegetation, such as cattails, which requires saturated soil conditions. Byrd claimed that the regulation required proof that the wetlands were inundated by waters from the lake. According to Byrd, his land was higher than the water level and there was a natural barrier that prevented his land from ever being inundated by water from the lake. On the basis of the extensive testimony of experts and its own view of the property, the district court resolved this issue against Byrd. The court said that the evidence failed to show that a natural barrier existed. The court further held that the regulation does not require that the land be inundated by water from the lake; water from several sources could be the cause of the inundation. Thus the Byrd property contained contiguous or adjacent wetlands which came within the Corps’ regulations. The court also held that the Corps had properly accelerated its jurisdiction to deal with the problem posed by landfill on the shores of Lake Wawasee and that the permit requirement did not constitute an uncompensated “taking” of property in violation of the Fifth Amendment, contrary to what Byrd had argued. These findings were made in a comprehensive memorandum opinion dated August 13, 1976, wherein the district court granted the motion for a preliminary injunction, an order thereon being entered on November 9, 1976. On September 23, 1977 the Government filed its motion for summary judgment, asserting that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. The court granted the motion from which plaintiff appeals. II. Byrd argues that summary judgment was inappropriate in this case because there was a factual issue with respect to “the extent of the scope of the original injunctive relief granted by this court’s order as to defendant’s land. . . . ” Defendant’s Response to Motion for Summary Judgment, App. 39. Essentially, he claims that the court was required to hold a trial to determine the exact location of the regulated wetlands on Byrd’s property. In the same vein, he argues that the permanent injunction did not meet the standards of specificity of Fed.R.Civ.P. 65(d). His theory is that the injunction order should refer to an exact metes and bounds description of the wetlands on his property. He alleges that it was uncertain which lands the court considered to be “wetlands”. Rule 56, Fed.R.Civ.P. states that the response to a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial”. Byrd failed to specify any precise finding of fact made with regard to the preliminary injunction which he still wished to contest. He presented only a generalized and vague claim that there were issues of fact for trial. Byrd put most of his emphasis on the legal arguments, not on issues of fact. Hence, the court properly disposed of this case on summary judgment. Furthermore, the permanent injunction entered by the district court meets the requirements of Rule 65(d) because, in part, it was not designed to permanently bar Byrd from filling in his land, only to force him to obtain a permit. In the course of obtaining the permit he can extract from the Corps an exact statement of where the wetlands are and protect himself from further legal proceedings. Furthermore, Byrd cannot complain of the absence of a legal description of the wetlands since, as the district court noted, he has refused to permit his land to be surveyed. Finally, the wetlands are easy to separate from his other land because they are characterized by distinct vegetation. In short, Byrd must have a very clear idea of what he is enjoined from doing and to which part of his property the injunction applies. III. Although he did not make this argument below, Byrd now argues that Congress and the Corps of Engineers lack the authority, under the Commerce Clause, Art. I, § 8, cl. 3, to regulate activities on and around Lake Wawasee, even if it is used by interstate travelers for recreational purposes. He asserts that he is challenging the extension of federal power to a non-commercial entity which is not included in the traditional definition of navigable waters which may be controlled by the federal government. As defined in § 502(7) of the FWPCA Amendments of 1972, 33 U.S.C. § 1362(7) (1976): “The term ‘navigable waters’ means the waters of the United States, including the territorial seas”. The legislative history of the Amendments establishes that Congress wanted to give the term “navigable waters” the “broadest possible constitutional interpretation”. Conference Report, S.Rep.No.236, 92d Cong., 2d Sess. 144, reprinted in [1972] U.S.Code Cong. & Admin.News, p. 3822. See also, Natural Resources Defense Council, Inc. v. Callaway, 392 F.Supp. 685 (D.D.C.1975). The definitional language has been held to mean that “navigable waters” are all the waters within the geographic confines of the United States. United States v. Ash-land Oil & Transportation Co., 504 F.2d 1317 (6th Cir. 1974). Given a Congressional intent to extend its water pollution regulations to all the “navigable waters” within its constitutional reach, the next step is to determine whether the particular regulations at issue fall within that reach. The Constitution’s grant of power to Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”, Art. I, § 8, cl. 3, has come to mean that Congress may regulate activities which affect interstate commerce. United States v. Wrightwood Dairy Co., 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (1942). A statement by the Supreme Court in Wickard v. Fillburn, 317 U.S. Ill, 63 S.Ct. 82, 87 L.Ed. 122 (1942), possesses particular relevance for this case: “[E]ven if appellee’s activity be local and though it may be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect’.” 317 U.S. at 125, 63 S.Ct. at 89. Byrd’s filling activities, although they are local, have the potential for exerting a substantial economic effect on interstate commerce by an easily traced chain of causation. The recreational use of inland lakes has a significant impact on interstate commerce, as is testified to by the number of out-of-state visitors to Lake Wawasee in particular. The value of these lakes depends, in part, on the purity of their water for swimming, or the abundance of fish and other wildlife inhabiting them or the surrounding wetland and land areas. The Corps, among other authorities, has come to recognize the importance of wetlands adjacent to lakes in preserving the biological, chemical, and physical integrity of the lakes they adjoin. Destruction of all or most of the wetlands around Lake Wawa-see, for example, could significantly impair the attraction the lake holds for interstate travelers by degrading the water quality of the lake, thereby indirectly affecting the flow of interstate commerce. We conclude that Congress constitutionally may extend its regulatory control of navigable waters under the Commerce Clause to wetlands which adjoin or are contiguous to intrastate lakes that are used by interstate travelers for water-related recreational purposes as defined by 33 C.F.R. § 209.120(d)(2)(i)(g-) and (h) (1977). Furthermore, these regulatory definitions promulgated by the Corps are reasonably related to Congress’ purpose: “The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters”. 33 U.S.C. § 1251(a). Other courts have reached the same conclusion. In United States v. Holland, 373 F.Supp. 665, 673 (M.D.Fla.1974), the court said: “It is beyond question that water pollution has a serious effect on interstate commerce and that the Congress has the power to regulate activities such as dredging and filling which cause such pollution”. See also, Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir. 1978); Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971), (upholding power of Corps to deny dredge and fill permit for environmental reasons under Rivers and Harbors Act of 1899 and Fish and Wildlife Coordination Act of 1934); P. F. Z. Properties, Inc. v. Train, 393 F.Supp. 1370 (M.D.Fla.1975). IV. Byrd next argues that the requirement that he obtain a permit is tantamount to a taking of his property without compensation and, therefore, an illegal expropriation in violation of the Fifth Amendment. His argument assumes a “taking” which may never take place. If Byrd applies for a permit and the Corps then issues it, Byrd would have no further complaint. If the Corps denies his permit application, the reasons therefor must be disclosed, and Byrd may seek judicial relief, if warranted. In essence, Byrd must exhaust his administrative remedies before he can raise this particular objection. It is not too much for the Government to ask that a determination of Byrd’s privilege to fill what may be ecologically-vital wetlands be made, initially at least, by a governmental agency, in this case the Corps. It is perfectly reasonable for Congress to provide a mechanism for balancing and controlling the development of a lake so that its value is not destroyed by overdevelopment. Byrd should save his complaint until he complies with the Corps’ permit procedure. The judgment of the district court is affirmed. . Interim final regulations and the phase-in schedule were published on July 25, 1975, 40 Fed.Reg. 31322, as amended later in 41 Fed. Reg. 55524, Dec. 21, 1976. The phase-in schedule was codified at 33 C.F.R. § 209.120(e)(2)(i) (1977) which reads: (2) Discharges of dredged material or of fill material into navigable waters, (i) Except as provided in paragraphs (e)(2)(ii) and (iii) of this section, Department of the Army permits will be required for the discharge of dredged material or of fill material into navigable waters in accordance with the following phased schedule: (a) Phase I. After the effective date of this regulation, discharges of dredged material or of fill material into coastal waters and coastal wetlands contiguous or adjacent thereto or into inland navigable waters of the United States and freshwater wetlands contiguous or adjacent thereto are subject to the procedures of this regulation. (b) Phase II. After July 1, 1976, discharges of dredged material or of fill material into primary tributaries, freshwater wetlands contiguous or adjacent to primary tributaries, and lakes are subject to the procedures of this regulation. (c) Phase III. After July 1, 1977, discharges of dredged material or of fill material into any navigable water are subject to the procedures of this regulation. . The relevant portions of the definition of “navigable waters” include: (g) Intrastate lakes, rivers and streams landward to their ordinary high water mark and up to their headwaters that are utilized: (1) By interstate travelers for water-related recreational purposes; (2) For the removal of fish that are sold in interstate commerce; (3) For industrial purposes by industries in interstate commerce; or (4) In the production of agricultural commodities sold or transported in interstate commerce; (h) Freshwater wetlands including marshes, shallows, swamps and, similar areas that are contiguous or adjacent to other navigable waters and that support freshwater vegetation. “Freshwater wetlands” means those areas that are periodically inundated and that are normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction; and ****** (c) “Lakes” means natural bodies of water greater than five acres in surface area and all bodies of standing water created by the impounding of navigable waters identified in paragraphs (a)-(h), of this section. Stock watering ponds and settling basins that are not created by such impoundments are not included; 33 C.F.R. § 209.120(d)(2)(i)(g) and (h), (ii)(c) (1977). However, on July 19, 1977, 42 Fed.Reg. 37122-37142, the Corps substituted revised final regulations for the interim final regulations which had been in effect. See 33 C.F.R. § 320.00 et seq. (1978). The new regulations used the term “waters of the United States” in place of “navigable waters” and gave it a new definition; the definition of “wetlands” also was altered. The relevant new definitions read: [33 C.F.R.] § 323.2 Definitions. For the purpose of this regulation, the following terms are defined: (a) The term “waters of the United States” means: (1) The territorial seas with respect to the discharge of fill material. (The transportation of dredged material by vessel for the purpose of dumping in the oceans, including the territorial seas, at an ocean dump site approved under 40 CFR 228 is regulated by Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended (33 U.S.C. 1413). See 33 CFR 324. Discharges of dredged or fill material into the territorial seas are regulated by Section 404.): (2) Coastal and inland waters, lakes, rivers, and streams that are navigable waters of the United States, including adjacent wetlands; (3) Tributaries to navigable waters of the United States, including adjacent wetlands (manmade nontidal drainage and irrigation ditches excavated on dry land are not considered waters of the United States under this definition). (4) Interstate waters and their tributaries, including adjacent wetlands; and (5) All other waters of the United States not identified in paragraphs (l)-(4) above, such as isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce. * sfc * * * * (c) The term “wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. (d) The term “adjacent” means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are “adjacent wetlands.” (e) The term “natural lake” means a standing body of open water that occurs in a natural depression fed by one or more streams and from which a stream may flow, that occurs due to the widening or natural blockage of a river or stream, or that occurs in an isolated natural depression that is not a part of a surface river or stream. 33 C.F.R. § 323.2(a) and (c) (1978). The new rules do not change our conclusions. Byrd’s wetlands fall within the new regulations, as noted below in footnote 7. Most importantly, the new regulations continue the authority of the District Engineer to require individual dredging and filling permits when water quality considerations call for such action (see footnote 3 supra). The District Engineer has already made such a finding in this case in order to accelerate Corps jurisdiction over the wetlands of Lake Wawasee. . 33 C.F.R. § 209.120(e)(2)(ii) (1977) reads: (ii) All other discharges of dredged or fill material that occur before the dates specified in paragraphs (e)(2)(i)(b) and (c) of this paragraph, [footnote 1, supra] are hereby permitted for purposes of Section 404 of the Federal Water Pollution Control Act without further processing under this regulation; Provided, however, That the procedures of this regulation including those pertaining to individual and general permits (see paragraph (i)(2)(ix), of this section) shall apply to any discharge(s) of dredged or fill material if the District Engineer determines that the water quality concerns as expressed in the guidelines (see 40 CFR Part 230) indicate the need for such action. . Comparable discretionary authority is granted to the District Engineer under the new regulation: § 323.4-4 Discretionary authority to require individual or general permits. Notwithstanding the provisions of §§ 323.-4-1 [allowing discharges of fill prior to a new time limit], 323.4-2, and 323.4-3, above, the procedures of this regulation and 33 CFR Part 325, including those pertaining to individual and general permits, shall apply to any discharge(s) of dredged or fill material if the District Engineer determines that the concerns of the aquatic environment, as expressed in the guidelines (see 40 CFR Part 230) indicate the need for such action because of individual and/or cumulative adverse impacts to the affected waters. In such cases, he shall take such steps as are necessary to notify persons who would be affected by such action. If the Regional Administrator, EPA, advises the District Engineer that the concerns for the aquatic environment as expressed in the Section 404(b) Guidelines require assertion of jurisdiction under § 323.4 — 4, and the District Engineer and Division Engineer disagree, the Office of the Chief of Engineers (DAEN-CWO-N and DAEN-CCH) shall be notified for further coordination and resolution with the Administrator. 33 C.F.R. § 323.4-4 (1978). . We note that under the new regulations, the existence of a natural barrier is expressly insufficient to prevent the wetlands from being considered adjacent to the lake and thus a part of the waters of the United States. . One commentator has provided an excellent summary of the environmental importance of wetlands: Wetlands, whether they are coastal or inland, are aquatic zones between identifiable water bodies and dry land. The Fish and Wildlife Service of the United States Department of the Interior has identified twenty types of wetlands including fresh and salt water marshes, bogs, swamps, and low-lying flats and flood plains containing moist soil conditions and supporting aquatic vegetation. The value of these areas varies from place to place, but it is generally agreed that wetlands are a priceless, multi-use resource, and that in addition to their economic value, they perform many biological services including: (1) high yield food source for aquatic animals; (2) spawning and nursery areas for commercial and sport fish; (3) natural treatment of waterborne and airborne pollutants; (4) recharging ground water for water supplies; (5) natural protection from floods and storms; and (6) essential nesting and wintering areas for water fowl. However, because these areas interface with dry land, they also provide attractive sites on which to build and farm. The public interest in long term ecological and economic productivity often conflicts with short term economic gain; moreover, disregarding the long term effects may cause irreversible environmental destruction. Caplin, Is Congress Protecting Our Water? The Controversy over Section 404, Federal Water Pollution Control Act Amendments of 1972, 31 U.Miami L.Rev. 445, 455-6 (1977). See also United States v. Holland, 373 F.Supp. 665, 675 (M.D.Fla.1974). . See the comments accompanying the new 1977 regulations: Wetlands. Prior to enactment of the FWPCA, the mean tide line (mean higher tide line on the West Coast) was used to delineate the shoreward extent of jurisdiction over the regulation of most activities in tidal waters under the 1899 Act as well as for mapping, delineation of property boundaries, and other related purposes. In freshwater lakes, rivers and streams that are navigable waters of the United States, the landward limit of jurisdiction has been traditionally established at the ordinary high water mark. The regulation of activities that cause water pollution cannot rely on these artificial lines, however, but must focus on all waters that together form the entire aquatic system. Water moves in hydrologic cycles, and the pollution of this part of the aquatic system, regardless of whether it is above or below an ordinary high water mark, or mean high tide line, will affect the water quality of the other waters within that aquatic system. For this reason, the landward limit of Federal jurisdiction under Section 404 must include any adjacent wetlands that form the border of or are in reasonable proximity to other waters of the United States, as these wetlands are part of this aquatic system. 42 Fed.Reg. 37128 (July 9, 1977). . We note that Lake Wawasee, by virtue of its size and the use of it made by persons from outside Indiana, would fit within the definition in the present regulations, 33 C.F.R. § 323.-2(a)(5) (1978), as an isolated lake and wetlands the degradation or destruction of which could affect interstate commerce. These new regulations make up in flexibility and breadth what they lack in definiteness.

James City County v. Environmental Protection Agency

OPINION SPROUSE, Senior Circuit Judge: The United States Army Corps of Engineers in 1988 granted a permit under section 404(b) of the Clean Water' Act, 33 U.S.C. §§■ 1251-1387, to James City County, Virginia, to construct a dam and reservoir across Ware Creek located within the County. The Environmental Protection Agency (“EPA”) “vetoed” the permit under the authority granted it by section 404(c) of the Clean Water Act, 33 U.S.C. § 1344(c). After the County contested that action in the district court, the court granted it summary judgment and ordered the Corps of Engineers to issue the permit. James City County v. EPA, 758 F.Supp. 348 (E.D.Va.1990). In a previous appeal, we affirmed the district court’s holding that there was not substantial evidence to support the EPA’s finding in its final determination that the County had practicable alternatives to building the Ware Creek reservoir for its local water supply, but remanded to the EPA to afford it the opportunity to decide whether environmental considerations alone would justify its veto. James City County v. EPA, 955 F.2d 254 (4th Cir.1992) (“JCC I ”). We instructed the EPA not to revisit the issue of practicable alternatives. On remand, the EPA considered its administrative record and again vetoed the § 404(b) permit — basing its veto solely on environmental considerations. The County again brought an action in the district court, which again granted summary judgment and ordered issuance of the permit. James City County v. EPA No. 89 156-NN, 1992 WL 315199 (E.D.Va.1992). The EPA now appeals that judgment to this court. We reverse. We consider the same facts which we considered in JCC I but in the context of the issues framed by the EPA’s new final determination and the district court’s decision after remand. No purpose will be served by repeating the area’s detailed water needs discussed in our earlier opinion. Suffice it to say that the present water supplies for all of the political entities in Virginia’s Lower Peninsula are rapidly becoming inadequate. Plans for development of the Ware Creek reservoir designed as a project to supply only the needs of James City County have been underway since at least 1982. We discussed in JCC I the statutory and regulatory frame controlling the issuance of the involved permit. The issues presented to us in this second appeal, however, come in a somewhat unusual posture so it will be useful to again review the statute and regulations which guide our considerations. I The stated objective of the Clean Water Act is “to restore and maintain the chemical, physical,' and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). A review of the statute and legislative history reflects that Congress’ intention in enacting the Clean Water Act was focusing on remedying the cumulative industrial and institutional practices that have spoiled much of the Nation’s waters, and its concern was assuring high quality in our waters. See S.Conf. Rep. No. 1236, 92d Cong., 2d Sess. 99-100 (1972), 1972 U.S.Code Cong. & Admin.News 3668 (conference report explaining that in § 101 of the Clean Water Act, 33 U.S.C. § 1251, congressional intent was to eliminate pollutant discharge, restore chemical, physical, and biological integrity of the Nation’s waters, set water quality goals, prohibit toxic discharges, and develop waste treatment projects and plans), reprinted in 1 Legislative History of the Federal Water Pollution Control Act Amendments of 1972, at 282-83 (1973). This comprehensive act covers the broad spectrum of pollution caused by our varied and complex way of life. Specific provisions cover building and operation of treatment plants directed to process wastewater from industrial facilities, toxic pollution, many varieties of nontoxie pollution, and the like. See, e.g., 33 U.S.C. §§ 1281-1299 (construction of waste treatment facilities); 33 U.S.C. § 1311 (effluent limitations); 33 U.S.C. § 1317 (1988) (toxic and pretreatment effluent standards); 33 U.S.C. § 1321 (oil and hazardous substance liability); 33 U.S.C. § 1322 (marine sanitation devices). Section 404 of the Act, 33 U.S.C. § 1344,' relates narrowly to the placement of dredged or fill material into the Nation’s waters. It is this section which covers the issuance of permits for the construction of reservoirs by damming streams, and it is the statutory provision upon which this appeal is centered. It provides, in relevant part: § 1344 Permits for dredged or fill material (a) Discharge into navigable waters at specified disposal sites The Secretary [of the Army or the Corps of Engineers] may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.... (b) Specification for disposal sites Subject to subsection (c) of this section, each such disposal site shall be specified for each such permit by the Secretary (1) through the application of guidelines developed by the Administrator [of the EPA], in conjunction with the Secretary.... (c) Denial or restriction of use of defined areas as disposal sites The Administrator [of the EPA] is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection. Pursuant to the mandate of section 404(b), the EPA and the Corps have jointly issued guidelines to be followed by both agencies in making their respective determinations under section 404. See 40 C.F.R. § 230. These guidelines state that a permit should not be issued if: (1) practicable, environmentally superior alternatives are available, (2) the discharge would result in a violation of various environmental laws, (3) the discharge would result in significant degradation to the waters of the United States, or (4) appropriate and practicable steps have not been taken to minimize potential adverse impacts of the proposed discharge. JCC I, 955 F.2d at 257 (summarizing 40 C.F.R. § 230.10(a)-(d)). In addition to the guidelines issued jointly by the EPA and the Corps of Engineers, the EPA has issued regulations, which, among other things, define “unacceptable adverse effect” as “impact on an aquatic or wetland ecosystem which is likely to result in significant degradation of municipal water supplies (including surface or ground water) or significant loss of or damage to fisheries, shellfish-ing, or wildlife habitat or recreation areas.” 40 C.F.R. § 231.2(e). These regulations also provide that “[i]n evaluating the unacceptability of such impacts, consideration should be given to the relevant portions of the section 404(b)(1) guidelines.” Id. Iñ JCC I, the County applied for and the Corps of Engineers granted the permit at issue in this appeal. The permit would allow the construction of a water reservoir by the erection of a dam across Ware Creek, a tributary of the York River, which, in turn, flows into the Chesapeake Bay. In its final determination of whether to veto the permit, the EPA discussed in detail its opinion that construction of the dam would have “unacceptable adverse effects” on municipal water supplies, fish, wildlife, and recreational areas such as are prohibited by section 404(c) of the Act, 33 U.S.C. § 1344(c). It determined, among other things, that the construction would have a damaging impact on environmental contributions to the York River and to the Chesapeake Bay. In its conclusion to its first final determination, however, the EPA added a statement that resulted in the district court ruling against it in the first action: [i]n addition, the record reveals that there are practicable, less environmentally damaging alternatives that are available to James City County that would provide sufficient water supplies for its projected local needs. EPA therefore concludes that construction of the proposed Ware Creek im-poundment would result in unacceptable adverse effects to wildlife. In JCC I, the district court concluded that the EPA’s finding of unacceptable adverse effects was based on its factual conclusion that there were practical alternatives for the County’s water needs that would be “less environmentally damaging.” It found that there was no evidence to support a finding that practical alternatives were available to the County and, in effect, overturned the EPA’s veto — ordering the County to issue the permit. On appeal, we agreed with the district court that the EPA’s finding of local practical alternatives was not adequately supported by the record and affirmed that part of the district court’s opinion. The EPA’s primary argument in the first appeal, however, was that the district court should have remanded the case to it so that it could consider, arid clearly articulate whether the project’s environmental effects alone justified a veto. We agreed, affirming in part, but remanding to afford the agency the opportunity for the further consideration it sought. Id. See Vermont Yankee Nuclear Corp. v. Natural Resources Defense Council, 435 U.S. 519, 524-25, 98 S.Ct 1197, 1202, 55 L.Ed.2d 460 (1978). Since we felt that the record conclusively showed that there were not practical alternatives to the Ware Creek project as a local project and that the EPA had full opportunity to develop that issue, we instructed the.EPA not to “revisit” it. The EPA, in the initial determination considered in JCC I, had dwelled for considerable lengths both on the supply and environmental advantages of a regional water supply as opposed to the Ware Creek project which was designed to supply, at most, the water needs of two small counties. It also discussed the obstacles to a regional system posed by the lack of cooperation between the affected communities in Virginia’s Lower Peninsula, and between the State of Virginia and the communities. The EPA made clear its position that it would consider differently a regional Ware Creek project or a regional project for impounding the water of other streams in the area. The EPA read our instructions in JCC I rather narrowly. Although we instructed the agency not to revisit the issue of practical alternatives, this was related to the alternatives discussed in the first determination and was based on our view that an agency failing to meet its evidentiary burden in these circumstances was not entitled to a “second bite of the apple.” In any event, in this appeal, we are faced with a somewhat different problem than the one presented in the first appeal. In its Final Determination After Remand, the EPA, of the view that our remand required it, deleted the discussion of a putative regional water supply and concluded that its veto was justified solely on the basis of unacceptable adverse effects on the environment. The district court, in ruling for the County, held that the EPA lacked the authority to base its veto solely on the grounds of adverse effects to the environment. It opined that the agency must consider the County’s need for water. Alternatively, the district court ruled that there was not sufficient evidence to support the EPA’s conclusion of unacceptable adverse environmental effects. It may have been better had the EPA discussed the County’s need for water and its earlier articulated opinion that the controversy was not so much about the need for water as the way in which it was to be -provided, i.e., by local or regional approach. We are constrained, however, by the familiar principle of SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947), that the propriety of an agency’s action can only-be judged on the grounds on which it rests its actions. We are presented then with the chore of determining whether the EPA has the authority to justify its § 404(c) veto in this case solely on the basis that it would cause unacceptable adverse effects on the environment. Although we find no precedent and little legislative history, we are persuaded by the structure and language of the Act that it has that authority. II The district court, in ruling that the EPA erred in not discussing the County’s need for water, cited 40 C.F.R. § 231.1(a) which defines the “purpose and scope” of Part 231 relating to procedures and directs that the EPA consider “all information available to [it].” ■ On appeal, the County- does not rely primarily on the district court’s reasoning, but argues that the EPA derives its authority to consider the County’s water needs from statutory language. It focuses on the key proscriptive phrase used by Congress “unacceptable adverse effects” and urges that the EPA is required to consider a wide range of factors in determining what is “unacceptable.” It points out that the EPA’s position in other litigation has been grounded on this same argument. The EPA, in reply, asserts that while it may in its sole discretion consider the need for water, the only requirement placed on it by Congress is to consider the project’s potential adverse impacts on the environment. ' In support of its' argument, the agency points to the preamble to 40 C.F.R. Part 231: [SJeetion 404(e) does not require a balancing of environmental benefits against non-environmental costs such as the benefits of the foregone project. This view is based on the language of 404(c) which refers only to environmental.factors. The term ‘[unacceptable” in EPA’s view-refers to the significance of the adverse effect — e.g. is it a large impact and is it one that the aquatic and wetland ecosystem cannot afford. ... [E]ven when there is no alternative available, and “vetoing” the site means stopping a project entirely, the loss of the 404(c) resource may still be so great as to be “unacceptable.” ' .44 Fed.Reg. 58;076, 58,078 (Oct. 9, 1979). The County does not seriously contest the EPA’s interpretation negating a costybenefit analysis. It forcefully contends, however, that before imposing a veto some consideration must be given to a community’s need for water and emphasizes that this does not require a cost/benefit analysis. It correctly points out that in JCC I, relying on . the legislative history of the Clean Water . Act and the preamble to its own regulations implementing that act, the EPA took the position in the district court that “the ‘acceptability’ of adverse [environmental] effects can best be evaluated in light of all relevant factors, including such concerns as the availability of -alternatives.” The EPA asserted that this had been a long-standing agency policy. Congress obviously intended the Corps of Engineers in the initial permitting process to consider the total range of factors bearing on the necessity or desirability of building a dam in the Nation’s waters, including whether the project was in the public interest. For example,- as stated earlier, under 40 C.F.R. § 230.10, in deciding whether to issue a permit, the Corps takes into account the availability of practicable alternatives to the proposed project, whether the proposed discharge would violate environmental laws or significantly degrade national waters, and whether adequate measures are taken to minimize harmful effects. In addition to these environmentally-based criteria, the Corps conducts a “public interest review” which, inter alia, takes into account the public and private need for the project, whether the same result could be achieved through other means, and the “extent and permanence” of the benefits and harms the proposed project is likely to produce. 33 C.F.R. § 320.4(a). Ultimately, however, recognizing the EPA’s expertise and concentrated concern with environmental matters, Congress gave the final decision whether to permit a project to that agency. Its authority to veto to protect the environment is practically unadorned. It is simply directed to veto when it finds that the discharge “will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning' and breeding areas), wildlife, or recreational areas.” See 118 Cong. Rec. 33,699 (1972) (senate debate explaining that under § 404 EPA should not issue a permit if project will adversely affect the listed resources), reprinted in 1 Legislative History of the Federal Wafer Pollution Control Act Amendments of 1972, at 177 (1973); see also S.Conf.Rep. No. 1236, 92d Cong., 2d Sess. 142 (1972) (conference committee report explaining that § 404 grants EPA the power to veto' project that will adversely affect the listed resources), reprinted in 1 Legislative History of the Federal Water Pollution Control Act Amendments of 1972, at 325 (1973). This broad grant of power to the EPA focuses only on the agency’s assigned function of assuring pure water and is consistent with the missions assigned to it throughout the Clean Water Act. We. think it significant that the only mention of .responsibility for the quantities of water available to communities is contained in section 101(g) entitled “Authority of States over water” which states: It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this chapter. It is the further policy of Congress that nothing in this chapter shall be construed to supersede or abrogate rights to quantities of water which have been established by any State. Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources. 33 U.S.C. § 1251(g). In our view, the EPA’s only function relating to the quantities of available water is limited to assuring purity in whatever quantities the state and local agencies provide. For these reasons, we think its veto based solely on environmental harms was proper. Ill Having found that, in this case, the EPA could consider whether adverse environmental effects alone justified a veto, we now review the district court’s alternate holding that the factual conclusion of unacceptable adverse effects was not supported by the record. In its Final Determination After Remand, the EPA analyzed the- proposed project’s adverse impacts on wildlife, recreational and commercial fisheries, and recreation in the Ware Creek watershed, as well as the project’s impacts outside of the general vicinity. The agency also considered James City County’s mitigation plan. It then concluded that the adverse environmental effects of the project were unacceptable and reasserted its earlier veto. The EPA noted that construction of the reservoir would result in the loss of 381 acres of vegetated wetlands, forty-four acres of palustrine (related to marshes), estuarine (related to estuaries), or lacustrine (related to lakes) open water systems, and 792 acres of adjacent forested uplands habitat. Some of the short-term effects of the construction of the project would be the loss of small animals and invertebrates that could not escape the construction site and the destruction of over half the vegetated wetland cover-type habitat. Reptile and amphibian populations in the watershed would be harmed by the destruction of overall habitat and particularly breeding habitat. The EPA also found that by blocking the Ware Creek’s flow, the pro-jeet “would severely and-adversely alter the current nutrient regime,” which transports organic material into the York River and ultimately into the Chesapeake Bay. In discussing the cumulative adverse environmental impact on the Bay to which the Ware Creek project would contribute, the EPA noted “[t]he incremental loss of functional wetland systems which currently contribute to the environmental well-being of the York River and the Chesapeake Bay and which help maintain and protect the environmental integrity of those systems represents a profound cumulative loss.” Although the EPA recognized that the proposed reservoir would increase greatly the freshwater habitat, the agency found that the dam would harm fish species currently living in the Ware Creek watershed because it would convert the vegetated flowing stream system into a lake, possibly resulting in the eventual elimination of some stream species of fish. Also, the likely introduction of forage and game fish into the reservoir by the Virginia Department of Game and Inland Fisheries could alter the abundance and diversity of the current fish populations. Furthermore, construction of the dam, in the EPA’s view, would destroy a valuable Great Blue Heron rookery and would eliminate favorable habitat for foraging species such as the Black Duck. The EPA considered and discussed the County’s mitigation plan. The plan includes wetlands creation, wetlands and uplands preservation, creation of potential Great Blue Heron nesting sites in Ware Creek (within the York River watershed), and removal of an existing dam in another watershed. Based on its review of the administrative record, however, the EPA concluded that the proposed mitigation plan would not adequately offset the adverse effects resulting from the local project. For instance, the more than 1600 acres-marked for preservation are in another watershed and, for that matter, are already subject to EPA protection. The EPA also considered that less than fifty percent of the vegetated wetlands would be replaced by newly-created wetlands, even if the plan is completely successful. Moreover, the EPA found that the mitigation plan would not adequately replace the types and qualities of wetlands the proposed project would destroy. The lack of knowledge about the habitat needs of the Great Blue Heron also led the agency to decide that it could not assume that the .mitigation efforts for the rookery would be successful. Accordingly, the EPA reached the following conclusions about.James City County’s.mitigation plan: Upon reevaluation of the administrative record, EPA finds that the mitigation plan as proposed by James City County does not adequately offset adverse impacts to aquatic resources resulting from project implementation. EPA finds that the post-project reservoir system in conjunction with preservation and compensatory mitigation efforts proposed by the County would not adequately replace or compensate for the loss of or impacts to aquatic resource functions and values associated with the current Ware Creek wetlands and aquatic ecosystem. EPA therefore concludes that the mitigation proposed. by James City County does not render the project acceptable under Section 404(c). In the district court, the County contended and the district court held that the environmental data in the administrative record failed to provide substantial support for the EPA’s position. The. court held primarily that the agency failed to consider the County’s mitigation plan to limit environmental damage. It held that the agency miscalculated the net loss of wetlands and the harm to fish and wildlife, and disregarded the inevitable development of the area around Ware Creek, with or without the proposed project. In our view the district court erred in failing to recognize the deference due the EPA’s determination. The court disputed the EPA’s calculation of projected wetlands loss from the proposed project, finding that after reducing the projected lost wetlands acreage by the number of wetlands acres to be created by the dam and the breaching of a dam in another water shed, and giving credit for mitigation efforts, the net loss was “almost zero.” In doing so, the court disregarded the EPA’s technical expertise and calculated the wetlands replacement based on raw numbers. However, as discussed above, the EPA took into account whether the replacement wetlands were of the same value and quality as the lost wetlands. • The district court also faulted the agency for failing to accord “mitigation credit” for the 1600+ acres set aside for protection in another watershed. The agency’s action, however, was consistent with its policy of applying mitigation credit in exceptional circumstances and in the same watershed. The district court noted that the project would increase habitat for freshwater fish, that the mitigation plan would breach a dam in another watershed thereby benefiting ana-dramous fish, and that the dislocation of the Great Blue Heron and other migratory birds would be only temporary because they could find new rookery areas. Although EPA conceded that freshwater habitat would expand from the project and that the breached dam would help anadramous fish, the administrative record supports its conclusion that the project nevertheless would cause significant harm. The record also supports the EPA’s finding that insufficient data on the Great Blue Heron prevents á conclusion that replacement rookeries will adequately mitigate the harm from the destroyed rookery. Finally, the court noted that the EPA had overlooked the extent of development that would occur around the wetland area if the dam was not built, noting that the Chesapeake Corporation, the company owning much of the land in the area, was committed to harvesting timber and developing the area for residential and other uses. After reviewing the administrative record, however, the EPA concluded that the record did not support a finding that development of the Ware Creek watershed would be more environmentally damaging without the project. The EPA noted that the Chesapeake Corporation’s plans for the area were uncertain. While it is possible that the. company will engage in timbering and development activities if the reservoir is not constructed, the record also shows that the company has considered including, “buffer zones, storm water management ponds and wetland areas to protect the Ware Creek watershed.” The EPA based its veto decision on several factors, including harm to existing fish and wildlife species, damage to the ecosystem, destruction of wetlands, and inadequate mitigation. Its findings are supported by the administrative record, are not arbitrary and capricious, and, for that matter, are supported by substantial evidence. Consequently, the judgment of the district court is reversed. REVERSED. . After James City County began developing its plan for Ware Creek, parallel and competing plans were crafted for a regional water supply system to service virtually all of the Lower Peninsula region, including James City County. No single regional plan has advanced to a permitting stage, so none has been considered formally by the EPA. The County, however, complained on appeal in JCC I and repeats its complaint in this appeal, that the EPA's veto was an attempt to coerce it into accepting water from a yet-to-be designed regional water source. Whether the region's future water needs will be met through regional or local supplies has been a source of controversy in the Lower Peninsula. There is considerable comment in the administrative record to the effect that while James City County prefers the local approach it now pursues, other political entities in the area prefer the regional approach. Since 1987, for example, when representatives from Newport News, Williamsburg, and York County formed the Regional Raw Water Study Group (RRWSG), local govemments have analyzed options for constructing facilities to supply water to the entire region. Although James City County initially declined to participate in this study group, it joined after the EPA first vetoed the Ware Creek project, apparently showing a willingness to consider a regional approach despite its preference for a local solution to its water needs. RRWSG has narrowed its focus to three reservoir proposals — a Black Creek Reservoir, a King William Reservoir, and an expanded Ware Creek Reservoir. Record material presented by the group’s representatives indicates that the King William and Black Creek proposals would produce considerably more water at less environmental cost than would the Ware Creek Reservoir. Although the EPA has denied expressing a preference, the amici in this appeal urge that one regional dam chosen from these alternatives would provide considerably more water with much less adverse environmental consequences than parallel local ones. . The EPA generally grants mitigation credit only in exceptional circumstances and where the mitigation is undertaken in the same watershed. . As amici explain, different types of wetlands serve different functions, such as providing habitat or filtration or recharging aquifers. . Following our holding in ICC I, the district court applied the substantial-evidence standard of review. On this appeal, the EPA asks us to reconsider our holding that we review the EPA's § 404(c) veto decision under that standard. As we stated in JCC I, the choice of review standard. does not effect our decision on the merits because EPA’s determination satisfies both the substantial evidence and arbitrary and capricious standards. The same is true on this appeal. On mature reconsideration, however, we conclude that agency action under § 404 is reviewable under the- arbitrary and capricious standard. Under 5 U.S.C. § 706(2)(E), the substantial evidence standard applies to cases "reviewed on the record of an agency hearing provided by statute.” Examining the language of § 404(c) under this requirement, it is apparent that the EPA's determination is not required to be made on the record of a hearing, but rather must be made ''after - notice and opportunity for public hearings.” 33 U.S.C. § 1344(c). Our conclusion that § 706(2)(E) does not apply to § 404(c) determinations is supported by dicta in Citizens to Preserve Overton Park v. Volpe, 401 U.S 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), where the Supreme Court stated that the substantial evidence review standard applies only to agency rulemaking "or -when the agency action is based on a public adjudicatory hearing.” Id. at 414, 91 S.Ct. at 822. In applying the arbitrary and capricious standard of review, we apply the same standard used by other circuits reviewing § 404 actions. See Bersani v. Robichaud, 850 F.2d 36, 46 (2d Cir.1988), cert. denied, 489 U.S. 1089, 109 S.Ct. 1556, 103 L.Ed.2d 859 (applying arbitrary and capricious standard to EPA's § 404(c) determination). See also Town of Norfolk v. United States Army Corps of Engineers, 968 F.2d 1438, 1445 (1st Cir.1992) (reviewing Corps’ § 404 permit decision under arbitrary and capricious standard); Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1521 (10th Cir.1992) (same); Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1032 (2d Cir.1983) (same). The Supreme Court explained the arbitrary and capricious review standard in Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983): The' scope of review under the "arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a "rational connection between the facts found and the choice made.” ... In reviewing that explanation, we must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” ... Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for this decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. at 43, 103 S.Ct. at 2866 (citations omitted). Under the substantial evidence standard, an agency ruling must be upheld if there is substantial evidence to support it. "Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.' ... While this Court must review the entire record, we may neither redetermine the facts nor substitute our own judgment for that of the [agency].” Harris v. Director, Office of Workers’ Compensation Programs, 3 F.3d 103, 106 (4th Cir.1993). It is widely held that there is now little difference in the application of the two standards. See Kenneth Culp Davis, 5 Administrative Law Treatise § 29:7 (1984); Matthew J. McGrath, Note, Convergence of the Substantial Evidence and Arbitrary and Capricious Standards of Review During Informal Rulemaking, 54 Geo. Wash.L.Rev. 541 (1986). . The district court found that the EPA claimed a potential loss of 425 acres of wetlands. In fact, the Final Determination After Remand states that the project would destroy 381 acres of wetlands and 44 acres of palustrine, estuarine, or lacust-rine open water systems.

Town of Norfolk v. United States Army Corps of Engineers

TORRUELLA, Circuit Judge. On this appeal, the Towns of Walpole and Norfolk challenge the decision of the U.S. Army Corps of Engineers (“Corps”) to issue a permit under Section 404 of the Clean Water Act to allow the Massachusetts Water Resources Authority (“MWRA”) to place fill in an artificial wetland located in the Town of Walpole and adjacent to the Town of Norfolk. The district court, in a comprehensive opinion, found that the Corps’ determinations under Section 404 were not arbitrary, capricious or otherwise not in accordance with law and therefore it granted summary judgment in favor of the Corps, its district engineer for New England, and the MWRA (collectively referred to herein as defendants). Norfolk & Walpole v. U.S. Army Corps of Engineers, 772 F.Supp. 680 (D.Mass.1991). In addition, the Towns challenge (1) the district court’s decision to allow a motion by defendants to quash subpoenas and for a protective order to prevent discovery of certain documents and (2) the district court judge’s denial of the Towns’ motion for his recusal pursuant to 28 U.S.C. § 455(a). We affirm the rulings and decisions of the district court for the reasons that follow. I A. Factual Background This appeal is an offspring of the colossal effort to clean up Boston Harbor. This particular controversy — involving the issuance of a permit to construct and operate a landfill in Walpole — has been described elsewhere in detail. We therefore summarize the facts pertinent to this appeal. Pursuant to a compliance plan approved by the District Court for the District of Massachusetts to abate the discharge of inadequately treated wastewater and sewage sludge and other residuals into Boston Harbor, the MWRA was required, among other remedies, to construct and operate a landfill by March 1994 to hold grit, screenings and, if necessary, digested or heat-dried sludge front its wastewater treatment facilities. See generally United States v. Metropolitan Dist. Comm’n, 23 Env’t Rep.Cas. 1350, 1985 WL 9071 (D.Mass.1985). In 1986 the MWRA began to work closely with the U.S. Environmental Protection Agency (EPA) to find possible alternatives for both sludge management technologies and potential sites for the landfill. Eventually four technologies and ten potential sites were identified from a field of 299 sites. Additional evaluation was conducted to further screen the potential sites for detailed analysis. The criteria used at this stage of the screening included environmental standards, such as ecology and air quality and potential groundwater effects, and non-environmental criteria, such as cost and the extent to which potential communities were already hosting permanent wastewater treatment facilities. This screening stage eliminated four sites on environmental and other grounds. Of the remaining six sites, four were further evaluated for sludge processing, while two sites — Rowe Quarry and MCI-Walpole— were further evaluated for a landfill operation. In February of 1989, the MWRA issued its Draft Environmental Impact Report and Draft Residuals Management Facilities Plan (“DEIR”). The MWRA proposed to process sludge at the Fore River Staging Area in Quincy, Massachusetts and to landfill the residuals at the MCI-Walpole site. In May of 1989, EPA issued a Draft Supplemental Environmental Impact Statement (“DSEIS”). In its analysis of the proposed landfill at Walpole, EPA identified two major critical groundwater supplies. First, the Massachusetts Department of Corrections maintains a number of public water supply wells located in the Charles River Watershed Aquifer to the west of the proposed landfill. These wells supply drinking water to the MCI-Norfolk and MCI-Walpole prison facilities. Second, to the east of the landfill site is the Head of the Nep-onset Sole Source Aquifer. This sole source aquifer serves several wells that are the only source of drinking water to the residents of the Town of Walpole. EPA concluded that the nearest of these wells is located more than two miles from the landfill site and is separated from the landfill by soils of low permeability. In March 30, 1990, EPA formally approved the construction and operation of the landfill at the Walpole site. Pursuant to Section 404 of the Clean Water Act, the Corps is required to review permit applications for proposals to dredge and fill wetlands under the standards set forth in 33 C.F.R. § 320.4(a)(1) and 40 C.F.R. § 230. In May 1990, the MWRA submitted a revised permit application describing all of its proposed projects to clean Boston Harbor, including the Walpole landfill. On July 12, 1990, the Corps issued a public notice concerning the MWRA’s application, which proposed to set aside forty-six acres of a ninety-four acre plot located in the Town of Walpole and adjacent to the Town of Norfolk. Under the MWRA’s proposal, a 600 square foot area of man-made wetland located in the center of the proposed project would be filled. This wetland, also known as Wetland E, was created by the Massachusetts Department of Corrections as an obstacle course for training prison guards. The National Marine Fisheries Service and the U.S. Fish and Wildlife Service submitted a comment form indicating no objection to the project. EPA and the MWRA submitted comments in support of the proposed landfill. However, the Towns of Norfolk and Walpole submitted detailed objections to the MWRA proposal. The Towns objected to the proposed landfill essentially on four grounds. First, the Towns claimed that the MWRA had failed to demonstrate that no practicable alternative having less adverse impact on the aquatic ecosystem existed as required under 40 C.F.R. § 230.10(a). Second, the Towns argued that the landfill would eliminate over fifty percent of the surface water supply to a portion of an adjacent wetland, thus allegedly causing substantial disruption to the overall wetland resource, including a significant adverse impact on a vernal pool located within 100 to 150 feet of the landfill footprint. Third, the Towns alleged that the proposed landfill would adversely impact wildlife habitats for the great blue heron and the pied-billed grebe. Fourth, the Towns claim that the MWRA disregarded the adverse impact the proposed landfill would have on groundwater resources. David H. Killoy, a branch supervisor of the Corps’ Regulatory Division, also opposed the MWRA’s application to construct and operate the landfill in Walpole. In a draft memorandum dated December 24, 1990, Mr. Killoy found two unique conditions which, in his opinion, required that the permit be denied because it failed “two parts of the 404(b)(1) guidelines and it is contrary to the public interest.” First, the MWRA had failed to demonstrate the nonexistence of a practicable alternative to the landfill which would have less adverse impact on the aquatic ecosystem. Mr. Kil-loy concluded that even a small threat to the Neponset Sole Source Aquifer in the area constituted a significant adverse environmental consequence. Second, the discharge of fill may contribute to a significant degradation of the waters of the United States, in this instance, the wells which supply drinking water. Mr. Killoy also noted that in the Corps’ review of the Central Artery and Tunnel Project, he had identified a “wide range of sites which were available for land fill.” In light of the claims by Mr. Killoy and the Towns, the Corps’ Regulatory Branch requested its Hydraulics and Water Quality Branch, Water Control Division to examine the available reports and data on groundwater impacts and to prepare a technical report on the potential risk for contamínation of the water supplies. The ensuing report recommended that the monitoring system be expanded to include at least one monitoring well to detect any leachate escaping towards the Neponset Sole Source Aquifer. The report concluded “that the risk to drinking water supplies from [the Walpole] landfill is minor.” On January 23, 1991, Mr. Killoy submitted a final memorandum summarizing his continued opposition to the Walpole landfill. Mr. Killoy asserted that the MWRA had not clearly demonstrated that Walpole was the “least environmentally damaging practicable alternative” for the following three reasons. First, if groundwater flow contributed substantially to the nearby down gradient wetlands, then “the removal of 46 acres of groundwater recharge area, high on the groundwater divide, by capping could deplete the wetlands water supply causing a long term degradation.” Second, the application contained too little information on the location of bedrock and its properties. Third, the investigation “essentially neglected the presence of the [sole source aquifer] and until the final environmental documents ignored the nearby private wells.” Mr. Killoy, however, concluded with the following observation: I also recognize that many of the items above can be interpreted differently by different reviewers who could recommend issuance of the permit without appearing arbitrary or capricious. This is where the decision maker takes over. Id. at ¶ 52. Less than three weeks after Mr. Killoy’s last memorandum, the Corps issued its Record of Decision (“ROD”) granting a permit to the MWRA to inter alia construct and operate the MCI-Walpole landfill. As further elaborated below, the Towns claim that the Corps’ permitting process is plagued with errors and that the decision to issue the permit was based on improper pressure by the U.S. Department of Justice and EPA. B. Statutory and Regulatory Background Congress enacted the Clean Water Act (“CWA”) “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a); see also 40 C.F.R. § 230.1. Section 301 of the CWA makes the discharge of pollutants into navigable waters unlawful, unless such discharge is authorized by permit. The term “pollutants” is defined broadly and includes dredged or fill material. The term “navigable waters” is similarly all encompassing, covering all “waters of the United States.” 33 U.S.C. § 1362(7). Wetlands are included in the definition of “waters of the United States.” Section 404 of the CWA authorizes the Corps of Engineers to issue or deny permits for the discharge of dredged or fill material. 33 U.S.C. § 1344(a). Generally an applicant seeking a permit under Section 404 submits an individual application for each discharge. In considering permit applications, the Corps is required to apply the regulations and guidelines set forth in Titles 33 and 40 of the Code of Federal Regulations. 33 C.F.R. § 320 and 40 C.F.R. Part 230. Section 404(b)(1) of the CWA directs the Corps to apply the guidelines developed by the EPA Administrator in conjunction with the Secretary of the Army, acting through the Chief of Engineers. 33 U.S.C. § 1344(b)(1). These Section 404 guidelines are codified at 40 C.F.R. Part 230. Under 33 C.F.R. § 320.4(a)(1), the Corps evaluates a permit application’s “probable impacts, including cumulative impacts, of the proposed activity on the public interest.” 33 C.F.R. § 320.4(a)(1). The Towns contend that the Corps’ determination to issue the permit is erroneous under subsections (a), (b) & (c) of 40 C.F.R. § 230.10 and under 33 C.F.R. § 320.4(a)(1). C. Standard of Review The district court’s grant of summary judgment in favor of the defendants is reviewed de novo. See, e.g., Medina & Sucesores, Inc., et al. v. Custodio, et al., 964 F.2d 32 (1st Cir.1992). Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment shall be granted if it is clear from the record that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter law.” We review the Corps decision to issue the permit under the standard of review set forth in the Administrative Procedure Act, pursuant to which an agency’s action will be set aside only if it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” To determine whether the Corps’s decision complies with the arbitrary and capricious standard, we consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the [Corps]. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). See also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) (“An agency’s construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress”); All Regions Chemical Labs, Inc. v. U.S. E.P.A., 932 F.2d 73, 75 (1st Cir.1991) (“In reviewing EPA’s decision we must pay particular attention to the interpretation that it gives its own rules and regulations”); Environmental Coalition of Broward County, Inc. v. Myers, 831 F.2d 984, 986 (11th Cir.1987) (deference to the Corps’ determination is “particularly appropriate in the case of complex environmental statutes such as the Clean Water Act.”). II Section 230.10(a) Section 230.10(a) provides that: no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences. 40 C.F.R. § 230.10(a). In its Record of Decision, the Corps found that the impact of the Walpole landfill on the aquatic ecosystem to be inconsequential considering the low value of the 600 square foot landfill and the minor potential secondary impacts to adjacent wetlands and waters. The Towns assert that the Corps interpretation of the Section 230.-10(a) guidelines is flawed for three reasons. First, the Corps erred in concluding that the direct impacts were “inconsequential.” This erroneous conclusion, the Towns assert, reversed the presumption embodied in Section 230.10(a), which requires the Corps to presume that other practicable alternatives exist. Second, the Towns claim that the Corps erred in concluding that the mitigation measures proposed in the MWRA’s application would render the secondary impacts to surrounding wetlands “inconsequential.” Third, it is alleged that the Corps failed to consider groundwater impacts as part of the practicable alternatives analysis because it erroneously concluded that the term “aquatic ecosystem” as used in Section 230.10(a) generally excludes groundwater. A. Did the Corps Reasonably Conclude that There is No Practicable Alternative? The Towns argue that the Corps’ conclusion that direct impacts to Wetland E (the 600 square foot, man-made wetland) were inconsequential is not supported by the evidence. This “evidence” consists of a ByLaw enacted by the Town of Walpole making Wetland E a protected resource. This argument fails for two reasons. First, and foremost, the Towns failed to make this Wetland By-Law part of the administrative record. We have no way of knowing the terms of this By-Law. Since judicial review of the Corps’ permit decisions is limited to the administrative record, the Towns’ argument fails. See, e.g., Friends of Earth v. Hintz, 800 F.2d 822, 830-31 (9th Cir.1986) (standard of review for the Section 404 permitting process under the Administrative Procedures Act is “highly deferential”); Buttrey v. United States, 690 F.2d 1170 (5th Cir.1982), cert. denied, 461 U.S. 927, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983) (“[Courts] look only to the administrative record in order to determine if the Corps’ decision was arbitrary, capricious, or not in accordance with law.”). Second, even assuming the inclusion of the By-Law in the administrative record, the fact that Walpole has passed such a By-Law is insufficient to establish that the direct and secondary impacts to the ecosystem are not “inconsequential.” Dubbing a piece of real estate “wetland” by municipal edict does not establish such a conclusion de jure for purposes of federal law nor does the By-Law grant per se “consequence.” We agree with the Corps that Walpole’s By-Law has no legal significance since the MWRA is not subject to it. The Towns also claim that in concluding that the impacts to Wetland E was negligible and therefore that no other practicable alternative having less environmental impact existed, the Corps reversed the rebut-table presumption contained in 40 C.F.R. § 230.10(a). We disagree. None of the comments received by the Corps disputed that this 600 square feet area consisted of an isolated, man-made, low-value wetland. Neither Town asserted in the comments submitted to the Corps that Wetland E has any essential ecological value nor have they presented evidence to contradict the finding by the Corps that this small area of wetland has “virtually no function or value.” Record of Decision at 7. In addition, we note that Wetland E does not meet the criteria for regulation under the Massachusetts Wetland Protection Act. See 310 Code of Massachusetts Regulations 10.57(1)(b). The Towns argue that once the Corps found that the direct impact of the landfill was “inconsequential,” it was required to conduct an exhaustive feasibility evaluation of each of the 299 alternative sites initially screened for the landfill. See Appellants’ Brief at 21. We hold that such a rigid interpretation of the guidelines is not warranted. The plain language of the Section 404 regulatory scheme indicates that the level of review depends on the nature and severity of the project’s impact on the environment. The general introduction for Section 230.10 states: Although all requirements in § 230.10 must be met, the compliance evaluation procedures will vary to reflect the seriousness of the potential for adverse impacts on the aquatic ecosystems posed by specific dredged or fill material discharge activities. 40 C.F.R. § 230.10. In Section 230.6, the Guidelines further provide: (a) ... These Guidelines allow evaluation and documentation for a variety of actives, ranging from those with large, complex impacts on the aquatic environment to those for which the impact is likely to be innocuous. It is unlikely that the Guidelines will apply in their entirety to any one activity, no matter how complex. It is anticipated that substantial numbers of permit applications will be for minor, routine activities that have little, if any, potential for significant degradation of the aquatic environment. It generally is not intended or expected that extensive testing, evaluation or analysis will he needed to make findings of compliance in such routine cases. (b) The Guidelines user, including the agency or agencies responsible for implementing the Guidelines, must recognize that different levels of effort that should be associated with varying degrees of impact and require or prepare commensurate documentation. The level of documentation should reflect the significance and complexity of the discharge activity. 40 C.F.R. § 230.6(a) & (b) (1991) (emphasis added). Clearly, the guidelines contemplate an analysis which varies in magnitude depending on the impact of the proposed discharge, rather than the dogmatic scrutiny suggested by the Towns. In cases such as this one, where the MWRA and the EPA conducted a thorough environmental analysis of alternative sites, and where the Corps’ determination that the direct impact on the aquatic ecosystem of filling the 600 square foot artificial wetland is negligible is supported by the administrative record, the Corps is not required under Section 230.10(a) to duplicate the analysis conducted by the MWRA and EPA. Norfolk & Walpole, 772 F.Supp. at 687. Nor can the Corps be faulted for relying on the alternatives analysis conducted by EPA in its review of the landfill pursuant to the National Environmental Policy Act. In doing so, the Corps followed the recommendation of Section 230.-10(a)(4), which provides that “the analysis of alternatives required for NEPA environmental documents ... will in most cases provide the information for the evaluation of alternatives under [the Section 404] Guidelines.” Although Section 230.10(a) recognizes that the NEPA review may provide insufficient analysis to meet the Section 404 guidelines requirements, it is apparent here that the Corps supplemented the extensive alternatives analysis conducted by the MWRA and the EPA. The Corps re-evaluated several potential sites to verify that the environmental criteria used in the selection of the proposed landfill was properly applied. The Corps found that many of these sites didn’t meet the landfill acreage requirements and therefore were appropriately not considered for landfills. Other sites which were considered for landfills were ranked lower than Walpole-MCI and therefore deemed less preferable and not carried forward. ROD at 11. The Corps reasonably relied on the substantial evaluation conducted by the MWRA and EPA to find that the landfill in Walpole was the best alternative under the Guidelines. The initial screening for a landfill began with approximately 300 potential sites and after substantial additional evaluation of about ten individual sites, Walpole was selected. Under the practicable alternatives test, the Corps is not required to conduct an independent feasibility evaluation of each alternative site merely because a party disagrees with its ultimate conclusion. We hold that it was not arbitrary, capricious or contrary to law for the Corps to conclude that no practicable alternative to this 600 square feet of artificial wetland exists which would have a lesser “adverse impact on the aquatic ecosystem.” 40 C.F.R. § 230.10(a)(3). If the Corps’ determination under Section 404 is reasonably supported by the administrative record, our inquiry must end. Friends of Earth, 800 F.2d at 835. B. Has the Corps Failed to Consider the Secondary Impacts on the Wetlands of the Proposed Discharge on Aquatic Ecosystem? The Corps analyzed two potential secondary impacts on the adjacent wetlands; (1) the possibility that leachate might reach the surface waters in the event of a leak from the landfill and (2) the loss of surface/groundwater recharge. The Corps concluded that although the potential for leachate transmission into the adjacent wetlands existed, its likelihood will be greatly minimized by the state-of-art landfill design and collection system which will be used. Even if some leakage occurred, the propensity of wetlands to assimilate the leachate constituents (i.e. act as a sink) is well recognized. In fact the use of wetlands as tertiary treatment is well documented and recognized by EPA. Therefore, the effect is expected to be minor. ROD at 12. The Corps also characterized the possible loss of surface water and groundwater recharge as a minor impact since “the proportion of precipitation falling on the landfill site which infiltrates into the groundwater is small (about Vs [of an acre]) ... when compared to the proportion entering the adjacent wetlands as surface runoff” and the landfill represented a very small portion of the total drainage area supporting the off-site wetlands. Id. The district court found that the Corps’ conclusions regarding the secondary effects of the landfill to be reasonable. Norfolk & Walpole, 772 F.Supp. at 688. The Towns, however, claim that the Corps failed to adequately consider secondary wetland impacts as part of the practicable alternatives analysis. The Towns’ argument run as follows. First, the Corps attempts to avoid the practicable alternatives analysis by concluding that certain mitigation measures planned by the MWRA would render any secondary impacts to wetlands inconsequential. Second, the Corps’ conclusion that Wetland E is a minor part of the total drainage areas supporting the Stop River wetlands cannot serve as a justification for the issuance of the permit, and in any event, the Towns argue that they have presented evidence to contradict this finding. Citing Bersani v. Robichaud, 850 F.2d 36, 39 (2d Cir.1988), cert. denied, 489 U.S. 1089, 109 S.Ct. 1556, 103 L.Ed.2d 859 (1989), the Towns allege that mitigation measures may not be used to meet the practicable alternatives analysis. The Towns’s interpretation of Bersani is not persuasive. In Bersani, the EPA denied an application for a permit to build a shopping mall on 32 acres of “high quality red maple swamp.” Id. at 40. To compensate for filling 32 acres of this “high quality” wetland, the developer proposed to create 36 acres of wetland in an off-site gravel pit. The EPA determined that this mitigation measure was insufficient because (1) of its scientific uncertainty; (2) the availability of an alternative site for the shopping mall; and (3) the adverse effect on wildlife. Bersani, therefore, does not announce a procedural straitjacket against the use of mitigation measures to compensate for environmental losses, but rather it upholds the basic proposition that if mitigation measures are insufficient to compensate for the loss of a valuable wetland, the permit should be denied. See also Friends of Earth v. Hintz, 800 F.2d 822, 826 (9th Cir.1986) (affirming Corps’ conditional issuance of a Section 404 permit on compliance with an agreement proposing mitigation measures). Moreover, in this case there will be no destruction of a “high quality” wetland area; rather the direct impact on the aquatic environment involves the filling of 600 square feet of an isolated, artificial wetland that was used by the Department of Corrections as an obstacle course for training prison guards. We hold that it is reasonable for the Corps to consider, under the practicable alternatives analysis, the functional value of the wetland to be impacted and the mitigation measures proposed to avoid secondary impacts. The Towns cite Buttrey v. United States, 690 F.2d 1170 (5th Cir.1982), cert. denied, 461 U.S. 927, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983), for the proposition that the Corps cannot rely on its conclusion that Wetland E is a minor part of the total drainage area supporting the Stop River wetlands. In Buttrey, a land developer argued that his project proposal to fill about 40 acres of wetland was a “mere flyspeck” in relation to the river watershed adjacent to the property. The Fifth Circuit noted that such “piecemeal” review of the proposed project is prohibited by 33 C.F.R. § 320.4(b)(3), which provides: Although a particular alteration of a wetland may constitute a minor change, the cumulative effect of numerous piecemeal changes can result in a major impairment of wetland resources. Thus, the particular wetland site for which an application is made will be evaluated with the recognition that it may be part of a complete and interrelated wetland area. Simply stated, 33 C.F.R. § 320.4(b)(3)-which authorizes the Corps to consider the cumulative effect of numerous piecemeal changes in its “public interest review” analysis — does not apply here. The 600 square foot artificial wetland to be filled is not “part of a complete and interrelated wetland area”; it is isolated. And none of the comments in this case contradicted the Corps’ finding that Wetland E had virtually no value. In Buttrey, it was undisputed that since the forty acre wetland was located upstream, it served a unique function in maintaining downstream water quality. The secondary impacts here result not from filling Wetland E but from the setting aside of 46 acres, most of which is on upland. Finally, the proposed project in Buttrey was opposed by the Fish and Wildlife Service, EPA and the National Marine Fisheries Service because they alleged it would inter alia destroy a habitat and nursery ground for wildlife and increase the risk of flooding in surrounding neighborhoods. No such opposition was registered by these government agencies against this project. In their comments, the Towns’ consultants claim that the construction of the landfill would potentially eliminate up to fifty percent of the drainage areas to adjacent wetlands, including Wetland A, a site which has a vernal pool, approximately 150 feet from the footprint of the proposed landfill. The Corps, however, concluded that the landfill site represents less than one percent of the total drainage area and that the mitigation measures would render any impacts insignificant. With respect to the mitigation measures, the Corps specifically found: The [MWRA] has committed to develop a plan to capture the rainfall and return it to the wetlands directly adjacent to the landfill to protect their hydrology. This leads to the conclusion [that] the potential for adverse affect on the hydrology of the adjacent wetlands is minor. In any event, the development of the landfill will include elaborate monitoring of baseline conditions of the adjacent wetlands, modelling of the water flows, and a collection and replacement system to return the water to the wetlands. A portion, based on the modelling, will be returned as surface water, and a portion will be returned as ground water via an infiltration system. ROD at 12. The Corps further noted that the MWRA has implemented these mitigation measures in other projects and that the Corps had “approval authority over the monitoring and mitigation program through a special condition of the permit. ...” Id. The Towns’ objection to the Corps findings on the subject of drainage reflect nothing more than a disagreement between the experts. In cases where technical disputes predominate the issues, an agency's expertise is entitled to deference. Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We hold that the Corps’ conclusions that the landfill site represents less than one percent of the total drainage area and that the mitigation measures would render any potential impact insignificant are not clearly arbitrary, capricious or otherwise not in accordance to law. C. Are Groundwater Resources Part of the Aquatic Ecosystem for Purposes of the Practicable Alternatives Analysis? In applying the practicable alternatives analysis, the Corps excluded groundwater resources from consideration. The Towns allege that groundwater resources are part of the “aquatic ecosystem” for purposes of the practicable alternatives analysis. The district court held that: The plain language of the Guidelines clearly constrains the alternative analysis, in the first instance, to effects on the aquatic ecosystem. “Aquatic ecosystem,” in turn, is defined as “waters of the United States, including wetlands, that serve as habitat for interrelated and interacting communities and populations of plants and animals.” 40 C.F.R. § 230.3(c). The Corps’ determination that groundwater sources are not aquatic ecosystems was clearly a reasonable interpretation of § 230.10(a), as [groundwater sources] cannot be said to “serve as habitat for interrelated and interacting communities and populations of plants and animals.” While the impact on groundwater is certainly an “environmental consequence,” the alternatives analysis is limited to comparison of effects on the aquatic ecosystem. Norfolk & Walpole, 772 F.Supp. at 685. The Towns, however, argue that groundwater resources are “waters of the United States.” 40 C.F.R. § 230.3(s)(3) provides that the term “waters of the United States” includes: All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sand-flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: (i) Which are or could be used by interstate or foreign travelers for recreational or other purposes.... Although this definition does not indicate whether groundwater constitutes “waters of the United States,” the Corps has interpreted this definition to refer only to surface waters. This interpretation has been upheld by some courts. Exxon Corp. v. Train, 554 F.2d 1310, 1329 (5th Cir.1977); Kelley v. United States, 618 F.Supp. 1103, 1105 (W.D.Mich.1985); United States v. GAF Corp., 389 F.Supp. 1379, 1383 (S.D.Tex.1975). Although other courts have questioned whether the term “waters of the United States” should include groundwaters connected to surface waters-Inland Steel Co. v. E.P.A., 901 F.2d 1419, 1422 (7th Cir.1990); McClellan Ecological Seepage v. Weinberger, 707 F.Supp. 1182, 1193-94 (E.D.Cal.1988)-we agree with the Corps that since such a determination ultimately involves an ecological judgment about the relationship between surface waters and groundwaters, it should be left in the first instance to the discretion of the EPA and the Corps. Cf. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 134, 106 S.Ct. 455, 463, 88 L.Ed.2d 419 (1985) (deference should be given to “the Corps’ ecological judgment about the relationship between waters and their adjacent wetlands”). We have carefully examined the Towns’ other arguments and conclude that they have no merit. D. Do Other Practicable Alternatives Exist Which Would Have Less Adverse Effects On The Aquatic Ecosystem? If the Corps had properly conducted the practicable alternatives analysis — the Towns claim — it would have been unable to overcome the presumption in Section 230.-10(a) because other alternatives which would have less “severe environmental impacts” than Walpole are available. The Towns point out that (1) the MWRA itself determined that another alternative — Rowe Quarry — would have a less severe environmental impact than the Walpole site and (2) the Governor of Massachusetts appointed a Commission in February of 1991 which identified six other alternatives. In a draft report dated October 1988, the MWRA concluded that “development of the Rowe Quarry as a landfill would result in minimal environmental impacts in comparison to those that would occur at the Walpole-MCI site.” On its face this statement appears to raise an issue of fact as to whether the decision of the Corps was arbitrary. Nevertheless, the issue under the practicable alternatives analysis of Section 230.10(a) is whether the alternative site would have less adverse impact on the aquatic ecosystem than the Walpole site. A finding that a potential site such as Rowe Quarry may have less adverse environmental effects does not constitute a finding that such site would have less adverse effects on the aquatic ecosystem. In fact, EPA concluded that the documents used in the NEPA review, “establish[ ] that the insignificant potential adverse impacts on the aquatic ecosystem at the Walpole site are no greater than those which could potentially result from a landfill at Rowe Quarry.” For example, EPA noted that a landfill at Rowe Quarry “could potentially cause adverse impacts to the Saugus River and Rumney Marsh wetland system, a state designated Area of Critical Environmental Concern.” The Towns argue that an investigation by the Harbor Residuals Landfill Siting Advisory Commission identified six potential alternatives to the Walpole site, “all of which are superior under the § 230.10(a) standard.” Brief of Appellants at 30. The district court concluded that “[t]he Corps cannot be faulted for not considering the report of the Governor’s Commission, however, as the Commission was not even in existence until after the [Record of Decision] and the permit were issued.” The district court’s conclusion finds support in the introduction of the Commission’s report, where the first point made is that the Commission’s task has been to evaluate alternatives that currently offer themselves as options to the development and use of the Walpole site, not to assess the wisdom of the past selection of that site. Our review of current alternatives can take account of circumstances that were unknown or unsettled when the MWRA conducted its site selection process and federal and state regulators carried out their environmental reviews from 1986 to 1990. More significantly, the Commission itself recognized that the actual feasibility of the six potential alternative sites it had identified was an open question. Finally, the Commission’s report contains no discussion of adverse impacts on the aquatic ecosystem. With respect to general environmental considerations, the Commission’s report provides a limited analysis. In sum, the Commission’s report is insufficient to raise a genuine issue of material fact that the Corps’ determination that the Walpole site meets the practicable alternatives analysis was arbitrary, capricious or contrary to law. Ill Section 230.10(b) Section 230.10(b) provides in pertinent part: No discharge of dredged or fill material shall be permitted if it: * * * * * * (3) Jeopardizes the continued existence of species listed as endangered or threatened under the Endangered Species Act of 1973, as amended, or results in likelihood of the destruction or adverse modification of a habitat which is determined by the Secretary of Interior or Commerce, as appropriate, to be a critical habitat under the Endangered Species Act, as amended. The Towns assert that the Corps failed to give adequate consideration under Section 230.10(b) to impacts on the habitats of pied-billed grebes and great blue herons that are located on the Stop River Impoundment, which borders the landfill site to the west. In the Record of Decision, the Corps recognized that [t]he increased noise and activity during construction and operation of the landfill may adversely impact one of the state’s largest Great Blue Heron rookeries and several pied-billed grebes, a state threatened bird in the Stop River impoundment a quarter of a mile away. ROD at 7. The Towns argue that the Corps violated Section 230.10(b) because it failed to conduct an extensive review of these impacts to wildlife. We disagree. As the district court recognized, Section 230.10(b) does not apply here because neither the pied-billed grebe nor the great blue heron are “species listed as endangered or threatened under the Endangered Species Act of 1973.” 40 C.F.R. § 230.-10(b). Furthermore, the National Marine Fisheries Department and the U.S. Fish and Wildlife Service — the federal agencies empowered to protect wildlife resources— have indicated no objection to the landfill at Walpole. Notwithstanding the clear language of Section 230.10(b), the Towns assert that Section 230.30(a) requires that the impact of the landfill on the pied-billed grebe be analyzed under Section 230.10(b). Section 230.30(a). states that “[listings of threatened and endangered species as well as critical habitats are maintained by some individual States and by the U.S. Fish and Wildlife Service of the Department of the Interior.” The district court concluded that consideration of impacts on wildlife, including species listed as endangered under state law, is properly reviewed under Section 230.10(c), which provides in pertinent part: Except as provided under section 404(b)(2), no discharge of dredged or fill material shall be permitted which will cause or contribute to significant degradation of the waters of the United States. Findings of significant degradation related to the proposed discharge shall be based upon appropriate factual determinations, evaluations and tests required by Subparts B and G, after consideration of Subparts C through F, with special emphasis on the persistence and permanence of the effects outlined in those subparts. 40 C.F.R. § 230.10(c) (emphasis added). As the underlined part indicates, Section 230.-10(c), unlike Section 230.10(b), specifically refers to Subpart D of the Section 404 Guidelines, which includes Section 230.-30(a). Furthermore, the evidence indicates that the landfill would not threaten the continued existence of the grebe. The Stop River Impoundment is located approximately 2,000 feet from the boundary of the landfill footprint and, according to the Towns’ consultant, only one pair of grebes has been sighted in this area. The projected noise level of the construction and operation of the landfill is expected to be 45 decibels. In its Supplemental Environmental Impact Statement, EPA reasonably concluded that this noise impact would not threaten the existence of the grebe. Noise levels exceeding 60 dBA [decibels] are considered loud to wildlife, and levels exceeding 75 dBA may cause damaging effects (Santa Barbara County, 1984). Since noise levels are projected to be about 45 [decibels] at the edge of the Stop River impoundment (2,000 feet from the noise source), significant noise impacts would not occur to wildlife (including the heron rookery) using the im-poundment. DSEIS at 5-93. Regarding noise levels that could potentially impact waterfowl and other wildlife using adjacent wetlands, EPA explained: Resident wildlife species at the site currently use the nearby impoundment, wetlands, and forested areas in spite of the activities of two local prisons and an adjacent firing range. These activities have resulted in ambient noises levels up to 49 dBA at the closest sample point to the reservoir (MWRA, RMFP, Screen, I, 1988). Animals using the site have likely become accustomed to such daily noise levels given the extended exposure. Any noise-related impacts that occur at the heron rookery (a resource of special concern) could be mitigated by limiting construction activity to nonbreeding periods such as fall and winter. Id. Finally, the district court made two findings to support its determination that the Corps’ conclusion that impacts on wildlife were insignificant “was not unreasonable.” Norfolk & Walpole, 772 F.Supp. at 690. First, the Towns’ own exhibit states that although herons “tend to prefer more remote, serene habitats,” they “are generally tolerant of noise and other human disturbances,” [Exh. “E” at 7], and that “the Heron is generally more sensitive to noise and other disturbances than the Grebe or Wood Duck,” id. at 8. Id. at 19. Second, the district court found that the Corps had specifically considered negative effects of the landfill on the grebe and the blue heron in its public interest analysis. Given these findings, we cannot say the permit decision was arbitrary. IV Section 230.10(c) Under 40 C.F.R. § 230.10(c), the Corps must reject a permit application which proposes a discharge “which will cause or contribute to significant degradation of the waters of the United States.” The Corps did not specifically consider the impact on groundwaters as required pursuant to Section 230.10(c) because it erroneously claimed that groundwaters effects on “municipal water supplies” were not part of the “significant degradation” test. The district court concluded that although the Corps had not properly conducted the Section 230.10(c) analysis, the Corps’ findings under its public interest review analysis indicated that the Corps had properly evaluated groundwater impacts. The district court explained: The [Record of Decision] discusses at great length — no subject is given more careful attention — the possible effects of leaks in the landfill on nearby drinking water supplies, including ten private wells near the site, larger wells 3,500 feet away that supply drinking water to the adjacent prisons, a well supplying a hospital in the vicinity, and the Head of Neponset Sole-Source Aquifer. The [Record of Decision] indicates that the Corps evaluated the tests performed by the EPA and the MWRA for the EIS and, where necessary, conducted its own tests. Norfolk & Walpole, 772 F.Supp. at 690. The district court noted that the Corps addressed each of the Towns’ objections to the Corps’ groundwater analysis. Id. The Towns do not argue that the Corps’ findings or conclusions regarding potential impacts to groundwater resources are arbitrary, capricious or otherwise not in accordance with law. Instead, the Towns argue that the Corps’ failure to analyze impacts to groundwaters under Section 230.10(c) constitutes reversible error. We think this argument elevates form over substance. Under 40 C.F.R. § 230.10(c), “[findings of significant degradation related to the proposed discharge shall be based upon appropriate factual determinations, evaluations, and tests required by Subpart B and G, after consideration of Subparts C through F, ...” The Corps’ public interest review analysis demonstrates that although the exact wording of Section 230.-10(c) was neglected, the intent and purpose of that section was satisfied. The Corps provided a lengthy and detailed evaluation of the potential impacts of the landfill on groundwater supplies. The Corps’ Hydraulics and Water Quality Branch performed an independent analysis of the potential impact on groundwater supplies and concluded' that “the risk to drinking water supplies from the landfill is minor.” In sum, the Towns’ challenge under Section 230.10(c) fails. V Public Interest Review Under 33 C.F.R. § 320.4(a), the Corps is required to evaluate a permit for “the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest.” The Towns assert that the Corps’ public interest review was inadequate because the Corps should not have weighed the impact of the Walpole landfill against the ultimate need to clean-up Boston Harbor. According to the Towns, the Corps should weigh the adverse impacts of the Walpole landfill against other sites potentially available. But this narrow interpretation of the public interest review is illogical since it asks the Corps to duplicate the “practicable alternatives” analysis of 40 C.F.R. § 230.10(a). The Corps’ conclusion that the MWRA’s proposed project is not contrary to the public interest is reasonably supported in the administrative record. Under the “public interest” review, the Corps conducts a general balancing of a number of economic and environmental factors and its ultimate determinations are entitled to substantial deference. Environmental Coali tion of Broward County, Inc. v. Myers, 831 F.2d 984, 986 (11th Cir.1987). We must not lose sight of the fact that the 600 square feet to be filled has no ecological value and is isolated. Furthermore, the Corps conditioned the MWRA’s application “to require maintenance of existing ground and surface water hydrologic regime which supports the adjacent wetlands.” Finally, as the district court noted: Considering the necessity of the landfill in the overall clean-up project, the MWRA’s history of difficulty in acquiring any site, ... as compared with what the Corps determined to be insignificant effects on wetlands, the Corps’ conclusion that the project is not contrary to the public interest was justified. Norfolk & Walpole, 772 F.Supp. at 692. VI Communications between the Department of Justice, EPA and the Corps Between late December 1990 and early 1991, while the MWRA’s application for the Section 404 permit was pending, there were a number of communications among officials of the Corps and attorneys of the Department of Justice and officials of the EPA. Based upon a request pursuant to the Freedom of Information Act (“FOIA”), the Towns reviewed some internal Corps documents which expressed opposition to the issuance of the permit and which noted that these communications had occurred. The Towns therefore notified the keeper of the records of the United States Attorney for the District of Massachusetts to appear for a deposition and subpoenaed all documents concerning pre-permit communications between the EPA, the Department of Justice and the Corps (“defendants”). Asserting inter alia the attorney client and work product privileges, the defendants moved to obtain a protective order and quash the subpoenas. The Towns maintain that these documents should originally have been included in the administrative record because they may show that the Department of Justice and EPA improperly pressured the Corps to issue the permit sought by MWRA. On May 13, 1991, the district court issued an order directing the defendants to submit the documents to the court for in camera inspection. The U.S. Attorney submitted 38 documents and the EPA submitted 19 documents. Assistant U.S. Attorney Henderson divided the documents into four categories. Category I consists of letters from the U.S. Attorney's Office to the Corps of Engineers. Category II consists of notes of communications between Department of Justice Attorneys or Assistant U.S. Attorney Henderson and Corps of Engineers officials, most of whom are in house counsel for the Corps. Category III consists of internal communications among the Department of Justice attorneys and the U.S. Attorney’s Office. Category IV consist of a draft of an unsigned letter from the Corps to the MWRA dated January 4, 1991. EPA’s counsel Jeffrey T. Fowley similarly divided the documents submitted by the EPA for in camera review into three categories. Category I consists of communications between EPA attorneys and Corps of Engineers personnel. Category II consists of communications between EPA technical personnel and Corps of Engineers personnel. Category III consists of documents created by EPA’s consultant, Metcalf & Eddy, Inc. Although the Towns challenge the exclusion of all these documents, they first challenge the exclusion of the documents contained in Category II and III of the U.S. Attorney’s submission and all of the documents submitted by the EPA. After finding that the Corps personnel had only seen seven of the 57 documents, the district court concluded that the remaining 50 documents did not belong in the administrative record because they were never considered by Corps personnel. With respect to the seven documents at issue, the district court concluded that all but two were properly not made part of the administrative record and the other two were shielded from discovery by the attorney-client privilege. Towns of Norfolk & Walpole v. U.S. Army Corps of Engineers, 137 F.R.D. 183, 190 (D.Mass.1991). In an exhaustive opinion, the district court noted that courts may look beyond the administrative record when there is “a strong showing of bad faith or improper behavior before such inquiry may be made.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). The district court judge concluded on the basis of his in camera review that the documents did not provide a showing of bad faith. Towns of Norfolk & Walpole, 137 F.R.D. at 189. The Towns argue that the district court applied the wrong standard (1) in excluding the fifty documents that the Corps never considered; (2) in excluding letters by the U.S. Attorney's Office to the Corps; (3) in excluding from the administrative record two letters which comment on the merits of the petition; and (4) in excluding a draft letter prepared by the Corps pursuant to the deliberative privilege. Alternatively, the Towns claim that even if these documents were properly excluded, the district court erred in not permitting supplementation of the administrative record. For the reasons that follow, we hold that district court did not abuse its discretion in granting the protective order and the motion to quash the subpoenas. A. Did the District Court Err in Excluding Documents Never Seen by the Corps? The Towns argue that the test of whether information is part of an administrative record is whether the information was directly or indirectly considered by the permitting agency. They argue that in concluding that all but seven of the fifty seven documents did not belong in the administrative record because these documents were never seen by the Corps, the district court erred because it created a rule that allows administrative agencies to avoid “judicial review of their actions by relying on oral communications.” Brief of Appellants at 43. The Towns seem to be asserting that every document which reflects an oral communication with a government agency must be included in the administrative record, even if these documents are not in the possession of the agency. The fallacy of this argument is obvious. Were we to accept it, government agencies would be required to collect from all parties who had oral communications with the agency concerning the issue under consideration, all documents reflecting these communications with the agency and include them in the record. There is no support in administrative law for such a requirement and its legality is highly questionable. We have carefully reviewed the remaining fifty documents and conclude that these documents contain no factual or policy information relevant to the issuance of the permit. Indeed, National Wildlife Federation v. Burford, 677 F.Supp. 1445, 1457 (D.Mont.1985)-cited by the Towns in support of this argument — supports the district court’s decision to exclude the documents. In National Wildlife, the court concluded that the contents of the personal files and notes of employees of the Department of the Interior were properly not made part of the administrative record. Id. at 1457. Similarly, most of the submissions by EPA and the Justice Department consist of notes of the personnel of these agencies which reflect telephone conversations of no significance. The remaining documents — with a few exceptions discussed below — consist of notes made by various government attorneys during telephone conversations and they reflect the mental impressions and opinions of these attorneys. We therefore hold that the district court did not abuse its discretion in excluding these documents. We now review the district court’s conclusion that the seven documents seen by the Corps' personnel did not belong in the administrative record. B. Did the District Court Err in Excluding Seven Documents Seen by the Corps But Not Included in the Administrative Record? The district court concluded that seven of the documents were seen by the Corps and warranted separate consideration. Six of the documents are letters from the U.S. Attorney’s Office to the Corps of Engineers and the seventh document is an unsigned draft of a letter from Colonel Phillip R. Harris, District Engineer for the New England Division, to Richard D. Fox of the MWRA. The district court concluded that the six letters did not belong in the administrative record because they did not contain factual statements or made policy recommendations and because only two of these letters commented on the merits of the petition. These two letters were written by Assistant U.S. Attorney Henderson and sent to Gary Pasternak, Assistant District Counsel for the Corps, and to Colonel Harris, the District Engineer. In both letters, Assistant U.S. Attorney Henderson expressed his opinion that David Killoy’s memorandum of December 24, 1990, could be withheld from public disclosure under the deliberative process privilege of the FOIA. Assistant U.S. Attorney Henderson expressed his view that the Killoy memorandum was a deliberative document and that its analysis was “faulty.” The district court concluded that it was “highly unlikely that the Corps of Engineers would have relied on this statement in deciding the permit question,” since the letter provided “no legal, factual, or policy reason for this conclusory statement, and the statement was made only to support the U.S. Attorney’s position that the memo-randa were ‘deliberative.’ ” Alternatively, the district court held that these letters were protected from disclosure under the attorney-client privilege. The district court’s action is fully supportable. A person asserting the attorney-client privilege with respect to a document provided by an attorney has the burden of showing four elements: (1) that he was or sought to be a client of [the attorney]; (2) that [the attorney] in connection with the [document] acted as a lawyer; (3) that the [document] relates to facts communicated for the purpose of securing a legal opinion, legal services or assistance in a legal proceeding; and (4) that the privilege has not been waived. United States v. Bay State Ambulance and Hosp. Rental Service, Inc., 874 F.2d 20, 27-28 (1st Cir.1989) (citing United States v. Wilson, 798 F.2d 509, 512 (1st Cir.1986)). At the time these six letters were written — from January to February of 1991 — the Towns had brought several suits to attempt to overturn the decision to place the landfill in Walpole. The Towns had (1) filed suit in state court challenging the state environmental review process; (2) filed a motion to intervene in a suit filed by the United States seeking an order from the district court to transfer the Walpole site from the Department of Corrections to the MWRA; and (3) filed suit in the district court challenging EPA’s review of the landfill selection under the National Environmental Policy Act. Clearly, the Towns had made every effort to overturn the decision to locate the landfill in Walpole and it was reasonable for the Corps and the U.S. Attorney to anticipate litigation over the Corps permit decision. As the district court found: An attorney-client relationship exists between the Corps of Engineers and the U.S. Attorney in connection with anticipated litigation. See 28 U.S.C. §§ 516-519 (plenary authority of Attorney General and Department of Justice to conduct and direct litigation involving the United States or its agencies); see also 5 U.S.C. § 3106 (heads of executive and military departments to refer litigation to Justice Department). The [six] letters reveal that the U.S. Attorney was acting as a lawyer and was engaged in giving the Corps legal advice with respect to reasonably anticipated litigation (that is, the instant case). All the letters begin with the heading, “ATTORNEY-CLIENT COMMUNICATION, PRIVILEGED AND CONFIDENTIAL,” and there is no indication that these communications were disclosed to third parties. Id. 137 F.R.D. at 190. The Corps has met each of the elements required to assert the attorney-client privilege. The Corps was a client of the U.S. Attorney. The letters were from the U.S. Attorney to its client and by the content of the letters, it is clear that they “relate to facts communicated for the purpose of securing a legal opinion, legal services or assistance in a legal proceeding.” Bay State Ambulance and Hosp. Rental Serv., 874 F.2d at 28. Finally, the Corps has not waived the privilege. Although there may be an unusual and extraordinary circumstance where a document protected by the attorney-client privilege should be made part of the administrative record, this is clearly not the case. C. Did the District Court Err in Excluding as Deliberative a Draft Letter Prepared by the Corps? The district court concluded that an unsigned draft of a letter from Colonel Phillip R. Harris, District Engineer for the New England Division to Richard D. Fox of the MWRA was protected by the deliberative process privilege. The deliberative process privilege protects the internal deliberations of an agency in order to prevent "injury to the quality of agency decisions.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975). Two requirements must be met before the government may properly withhold a document from disclosure. Nadler v. U.S. Dept. of Justice, 955 F.2d 1479, 1490-91 (11th Cir.1992). First, the document must be prepared prior to a final decision “in order to assist an agency decisionmaker in arriving at his decision.” Id. at 1491 (citing Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184, 95 S.Ct. 1491, 1500, 44 L.Ed.2d 57 (1975)). Second, the document must be “a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters.” Id. (citing Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C.Cir.1975)). Furthermore, factual information that may be segregated from the rest of the document is not protected by the privilege. 5 U.S.C. § 552(b); Nadler, 955 F.2d at 1491; Hopkins v. U.S. Dept. of Housing & Urban Dev., 929 F.2d 81, 85 (2d Cir.1991). The document at issue here is an unsigned draft letter from Colonel Harris, dated January 4, 1991, to Richard Fox of the MWRA informing the MWRA that the Corps would not be able to issue a permit for the Walpole landfill “by the end of January deadline” and setting forth two options to “stay on the court mandated schedule” for the Boston Harbor cleanup project. The draft letter has no factual information and it reflects a preliminary position by the Corps that was subsequently rejected. Accordingly, the draft letter is clearly protected from disclosure by the deliberative process privilege. D. Did the District Court Err in Not Permitting Supplementation of the Record? The Towns seek to include the 57 documents in the administrative record based on the assertion that the Department of Justice and the EPA secretly and improperly “pressured” the Corps to issue the permit. The district court examined the documents in camera and concluded the they did not demonstrate bad faith or improper behavior to warrant ordering the supplementation of the administrative record. The basis for our review of the permit decision here is the administrative record. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 1606-07, 84 L.Ed.2d 643 (1985); Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973); Friends of Earth, 800 F.2d at 829. Courts require a strong showing of bad faith or improper behavior before ordering the supplementation of the administrative record. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir.1991). Citing D.C. Fed’n of Civic Ass’ns v. Volpe, 459 F.2d 1231, 1249 (D.C.Cir.1971), cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.2d 489 (1972), the Towns asserts that the district court erred in concluding that there was no improper behavior here, particularly given the ex parte high level discussions among executive branch officials. We think that the Towns’ exaggerate the reach of Volpe. Volpe does not dilute the requirement of making a strong showing of bad faith or improper behavior before supplementing the record. In Volpe, a divided panel of the District of Columbia Circuit held that the Secretary of Transportation had failed to comply with the statutory requirements and other provisions applicable to federal funded highway projects in approving construction of a bridge across the Potomac. The defects in the Secretary’s decision in Volpe were colossal, including his failure to compile an administrative record or to make formal findings and his approval of the bridge project prior to the finalization of the plans for the bridge. The evidence in Volpe also showed that the Chairman of the Subcommittee on the District of Columbia of the House Appropriations Committee publicly pressured the Secretary by threatening to withhold funds for the District’s rapid transit system unless the bridge project was approved. Two judges held that the Secretary of Transportation’s decision would be invalid if based in whole or in part on “political pressure.” Id. at 1246. Our review of the in camera submission supports the district court’s conclusion that there is no evidence here to suggest that “political pressure” or any kind of unseemly influence, in whole or in part, affected the Corps’ permitting process. In this case, the Corps has presented a detailed Record of Decision and it is reasonably supported by the administrative record. It shows that the Corps based its decision on the factors relevant to determining whether the MWRA’s permit application complied with the Section 404 Guidelines and whether issuance of the permit would be in the public interest. The Towns claim inter alia that “Volpe stands for the proposition that if other litigation [involving the United States] or the Boston Harbor clean-up project” were considered by the Corps in issuing the permit, the decision must be vacated and remanded. Although this interpretation of Volpe seems questionable, we need not conclusively determine its soundness since none of the documents submitted for in camera review show any indication of impropriety by the United States or that the position of the United States in other litigation was considered by the Corps in its permitting process. The Towns have not presented any evidence that the fact that the U.S. Attorney’s Office represented the Corps and the EPA was a factor considered in the permitting process. The Justice Department has the sole responsibility for representing executive branch agencies in litigation. The Supreme Court has recognized that the main purposes of centralizing litigation responsibility in the Justice Department is to assure that the United States should speak with one voice “that reflects not the parochial interests of a particular agency, but the common interests of the Government and therefore of all the people.” United States v. Providence Journal Co., 485 U.S. 693, 706, 108 S.Ct. 1502, 1510, 99 L.Ed.2d 785 (1988). Finally, we have examined the in camera submission and conclude that adding these submissions to the record would serve no purpose. The Killoy memoranda explained in sufficient detail the internal Corps opposition to the issuance of the permit. The Towns have not cited precedent — nor have we found any — indicating that a district court should allow supplementation of an administrative record with information which is already properly documented in the administrative record. E. Whether the District Court Judge Erred in Denying the Towns’ Motion for His Disqualification? During the proceedings below, the Towns moved pursuant to 28 U.S.C. § 455(a) to excuse Judge Mazzone. Section 455(a) provides that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Judge Mazzone denied the Towns’ motion for his disqualification finding no basis for it since “[t]he record in this case is lengthy, and, as both sides point out, there are occasions when my rulings and orders, or remarks from the bench in connection with a ruling, have evoked disappointment from the litigants.” Memorandum Order of May 21, 1991. The issue of disqualification in this Circuit turns on whether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the judge’s impartiality, not in the mind of the judge himself or even necessarily in the mind of the litigant filing the motion under 28 U.S.C. § 455, but rather in the mind of a reasonable man. United States v. Arache, 946 F.2d 129, 140 (1st Cir.1991) (citing United States v. Cowden, 545 F.2d 257, 265 (1st Cir.1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977)), cert. denied, - U.S. -, 112 S.Ct. 1507, 117 L.Ed.2d 645 (1992). We review Judge Mazzone’s denial of the Towns’ motion for his recusal under the abuse of discretion standard. United States v. López, 944 F.2d 33, 37 (1st Cir.1991); Camacho v. Autoridad de Teléfonos de Puerto Rico, 868 F.2d 482, 490 (1st Cir.1989). Judge Mazzone made several statements in the course of the Boston Harbor litigation which the Towns assert would cause a reasonable person to question his impartiality. The first statement was made on July 2, 1990, when Judge Mazzone denied a request by the United States for an order requiring the MWRA to commence the planning of an alternative landfill since the Massachusetts legislature had decided to postpone voting on the transfer of Walpole site from the Department of Corrections to the MWRA until December 5, 1990. Instead, Judge Mazzone chose to wait until after the December 5, 1990, vote in the Massachusetts legislature. The judge, however, made the following comment: At the same time, I am mindful of the high risk that attends my decision to forego action until December 5, 1990. At stake is the credibility of the Court’s schedule and the public’s faith in the integrity of the entire project. In the event that necessary legislation has not been approved by that date and that slippage in the schedule results from the paralysis surrounding the siting issue, I will entertain and intend to grant a motion for sanctions designed to ensure immediate resolution of the matter. It is true that Judge Mazzone’s comments, viewed in isolation, might require further scrutiny. However, given the context in which these comments were made, we conclude that they at most indicate that Judge Mazzone was irritated at the snail’s pace in which the Commonwealth was moving to fully comply with the district court’s plan to clean up Boston Harbor. In fact, Judge Mazzone made the statement as a background comment to his denial of a request by the United States for stricter compliance with the court’s mandated schedule. In this sense Judge Mazzone’s comments — to the effect that the Commonwealth was placed on actual notice that he would not tolerate further unjustified delays — were eminently reasonable. Furthermore, the historical context in which these comments were made is significant. For more than five years, Judge Mazzone has overseen and continues to oversee the project to induce the Commonwealth and its agencies to comply with federal law by cleaning up Boston Harbor. Back in 1985, Judge Mazzone found the Commonwealth and the MWRA liable for violations of a permit issued under the provisions of the National Pollution Discharge Elimination System. These violations continue today. The second statement which the Towns claim amounts to specific behavior which reasonably calls into question Judge Maz-zone’s impartiality is found in an Order entered after the Massachusetts legislature voted against the transfer of Walpole from the Department to the MWRA. The legislature voted against the transfer on December 6, 1990, and shortly thereafter, the United States filed a motion before Judge Mazzone to compel the transfer of the Walpole site to the MWRA or for sanctions. On February 25, 1991, Judge Mazzone granted the United States’ motion by imposing a moratorium on any new sewer connections to MWRA’s system. In response to an argument by the Commonwealth to the effect that any action by the district court would be premature, Judge Mazzone stated: First the statement that the schedule is not yet in severe jeopardy is true only if one assumes that the landfill will ultimately be located at the Walpole site. If I must eventually order the Commonwealth to effect the transfer, I can delay doing so for some time, although I do not believe that court action can wait as long as September, 1992. But if the Walpole site, for which much of the requisite studying, planning, and testing has already been completed, is not to be the ultimate site for the landfill, then another site must be selected immediately if there is to be any chance of beginning construction as planned. In fact, given the need to complete state and federal environmental impact reports for any new site, it may already be too late. It is therefore my conclusion that there is now a real and imminent threat to the schedule. While that statement indicates that Judge Mazzone wanted a landfill site to be selected right away, and his concern that only the Walpole site was sufficiently advanced to meet the court’s schedule, it does not indicate a preference for Walpole per se so long as some other suitable site was expeditiously chosen. These statements simply show that Judge Mazzone was weighing the factors to take into account in determining an appropriate sanction to bring the Commonwealth into compliance with the scheduling order. Indeed, the statement reveals Judge Mazzone’s awareness of the distinct possibility that at the end of the site selection process, Walpole might not be the site for the landfill. The Towns also claim that Judge Maz-zone prejudged the issues in this case because he stated that the Walpole site “was exhaustively reviewed and approved by the EPA, the MWRA and the Army Corps of Engineers ...,” a month after the complaint in this case was filed and before the defendants had answered it. Additionally, in one of the regularly issued compliance orders, dated March 1, 1991, Judge Maz-zone stated: I have reviewed the record of decision attached to the permit, and note the Corps finding that the siting process for the Walpole-MCI [landfill] was satisfactory under both NEPA and 404(b)(1) guidelines. We find nothing here which rises to the level of partiality needed to compel recusal. If one considers that the MWRA spent more than $10 million in the site selection process, that the EPA closely monitored the MWRA site selection process and that the Corps issued an extensive Record of Decision supported by the administrative record, it seems more than reasonable to conclude that the site selection process was “exhaustively reviewed.” And no reasonable person could conclude that merely noting that the Corps had reached a determination under the 404 Guidelines shows that Judge Mazzone was biased. In short, the statements of Judge Mazzone which the Towns claim would cause a reasonable person to question the impartiality of Judge Mazzone are statements which in our opinion state the obvious, and reflect common sense. Given the context in which these remarks were made and their substance, we hold that Towns have failed to show that Judge Mazzone committed an abuse of discretion in denying their motion for his disqualification. Finally, the Towns claim that since Judge Mazzone has overseen compliance with the administration of the scheduling plan to clean up Boston Harbor, his sitting over the adversarial aspects of the ease, including this Section 404 case, gives rise to an appearance of partiality requiring disqualification. Since Judge Mazzone has required strict compliance with the compliance plan — including ordering a sewer moratorium to compel the Legislature to transfer the Walpole site — and the Towns’ challenge to the Section 404 permitting process represents a threat to the schedule, they contend a reasonable person would question the ability of Judge Mazzone to preside over the Section 404 case. There is a difference, however, between the real appearance of bias, and the fact that a judge is sometimes required to act against the backdrop of official positions he took in other related cases. A judge cannot be replaced every time a case presents an issue with which the judge’s prior official decisions and positions may have a connection. This Circuit has made clear that “[o]ur system of justices does not require that judges be empty vessels, wholly ignorant of all of the antecedents of a case.” Camacho, 868 F.2d at 490. The Towns have made no showing that Judge Mazzone’s actions in the Boston Harbor cleanup litigation personally placed him in a position in which he would have been constrained to decide the Section 404 case in favor of the Corps. There were other options compatible with continuing the Boston Harbor cleanup if the Walpole site proved unsatisfactory. We are unwilling to assume that a district judge — of whom there is no question whatever of any personal or improper interest— would be so overcome by concerns in the Boston Harbor cleanup case as to unable to render a just and professional decision in this one. Judge Mazzone carefully considered the merits of the Towns’ challenge to the Section 404 permitting process. He rejected the Corps’ position that groundwater effects did not have to be considered under 40 C.F.R. § 230.10(c). The fact that Judge Mazzone presided over other cases arising from the effort to clean up Boston Harbor makes him arguably the most qualified judge to preside over this case since his expertise in the legal aspects of the Boston Harbor cleanup will result in a more just and efficient resolution of the issues in cases relating to the Boston Harbor cleanup effort. See, e.g., In re Allied-Signal Inc., 891 F.2d 967, 972 (1st Cir.1989); cert. denied, 495 U.S. 957, 110 S.Ct. 2561, 109 L.Ed.2d 744 (1990). While it is obvious that a judge’s prior orders might place him or her in a position that would lead a reasonable person to question whether he or she would remain impartial in a subsequent proceeding, see, e.g., United States v. Chantal, 902 F.2d 1018 (1st Cir.1990) (sentencing judge’s views that defendant was an “unreconstructed drug trafficker” might lead a reasonable person to question the judge’s impartiality in a subsequent sentencing proceeding), we do not find this to be such a case. López, 944 F.2d at 37 (minimal factual basis required for an inference of impartiality) (citing United States v. Giorgi, 840 F.2d 1022, 1036 (1st Cir.1988). We add that had another judge been assigned to this case, he or she would plainly not have viewed Walpole’s case in a vacuum. That judge would have learned of the Boston Harbor cleanup schedule and would have been exposed to whatever additional concerns compliance with that schedule imposed here. This last point requires us to further comment. Although parties are not to be discouraged or castigated in the pursuit of good faith challenges to the impartiality of a particular judge or judges, neither should such action be taken lightly or without foundation, merely as another tactical weapon in the arsenal of trial strategy. While we understand appellant’s feelings, we hold that the disqualification motion in this ease was totally without a basis in fact or law. VII. In conclusion, we find that the Corps properly applied its Section 404(b)(1) Guidelines and properly concluded that the landfill was not contrary to the public interest. The district court did not abuse its discretion in allowing the defendants’ motion to quash the subpoena and protective order and denying the Towns’ motion for the judge’s disqualification. Affirmed. . 33 U.S.C. § 1344. . In a related appeal, the Towns challenged the adequacy of the supplemental environmental impact statement prepared by the United States Environmental Protection Agency ("EPA”) for the proposed landfill. Norfolk v. United States EPA, 761 F.Supp. 867 (D.Mass.1991). We affirmed the district court’s grant of summary judgment in favor of the EPA and its Administrator. . Norfolk & Walpole v. U.S. Army Corps of Engineers, 137 F.R.D. 183 (D.Mass.1991). . Section 455(a) provides: Any justice, judge, or magistrate of the United States shall disqualify himself, in any proceeding in which his impartiality might reasonably be questioned. . United States v. Metropolitan Dist. Com., 757 F.Supp. 121, 123-26 (D.Mass.1991), aff'd, 930 F.2d 132 (1st Cir.1991). . A sole source aquifer is a designation given by EPA to the principal or sole source of drinking water for a given area. The western boundary of the Neponset Sole Source Aquifer runs to the east of the MCI-Walpole landfill. . In addition, south of the landfill are wells that supply drinking water to Southwood Hospital and north of the landfill are wells which supply drinking water to private residences, a horse ranch and a dog kennel. . 33 U.S.C. § 1344. . The projects included the construction of a headworks facility for preliminary treatment of sewage on Nut Island, a 5 mile inter-island wastewater tunnel between Nut and Deer Island, a 9.5 mile effluent outfall tunnel and diffuser from Deer Island to offshore waters, a sludge processing facility at Quincy, and the residuals landfill at issue in this case. . Vernal pools serve as the sole breeding habitat for certain amphibian species and provide breeding and feeding habitat for a variety of other species. . Memorandum by David H. Killoy, dated December 24, 1990, at 7. . Id. at 6. . Leachate refers to precipitation that will percolate through the residuals placed at the landfill. . Report, dated February 1991 at 1, 23. . Killoy Memorandum of January 23, 1991, ¶ 4. . Id. at 14. . 33 U.S.C. § 1311(a). . 33 U.S.C. § 1362(6). . 40 C.F.R. § 230.3(s)(7). See also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) (Corps acted reasonably in interpreting Clean Water Act to require permits for discharge of material into wetland). . Among the factors evaluated under this “public interest review" are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, consideration of property ownership and, in general, the needs and welfare of the people. 33 C.F.R. § 320.4(a)(1). . 5 U.S.C. § 706(2)(A). . 42 U.S.C. § 4321 et seq. . Draft Report on Minor Residuals Landfilling at 56. . Letter dated November 2, 1990 from the Director of EPA’s Water Management Division to Lt. Colonel Stanley J. Murphy, District Engineer, U.S. Army Corps of Engineers. . Id. at 6. . Norfolk & Walpole, 772 F.Supp. at 688. . Id. at 2. ("[0]ur identification of several, possibly feasible alternatives to the Walpole site does not mean that all uncertainties surrounding the feasibility of those alternatives have been eliminated"). . Id. at 20. ("Certainties about environmental acceptability will only become available, however, after further planning and permitting activities with respect to any of the alternatives”). . Massachusetts has listed the pied-billed grebe as endangered and threatened under state law. Mass.Gen.Laws ch. 131, § 4, clause 13A; Mass.Regs.Code tit. 321, § 8.01(3)(b). . As discussed ante, at 1450-51, groundwater effects were not considered under Section 230.-10(a) because that section calls for a determination of the "adverse impact on the aquatic ecosystem.” Aquatic ecosystem is defined as a water of the United States "that serve as habitat for interrelated and interacting communities and populations of plants and animals.” 40 C.F.R. § 230.3(c). It is clear that groundwater resources do not "serve as habitat for interrelated and interacting communities and populations of plants and animals.” See Norfolk & Walpole, 772 F.Supp. at 685. . The Corps did conclude in its "Short Form, Section 404(b)(1) Guidelines Compliance Determination” that the landfill will not cause significant adverse effects on municipal water supplies. Norfolk & Walpole, 772 F.Supp. at 690. . 5 U.S.C. § 552. The Freedom of Information Act creates a presumption that an agency must disclose all written information in an agency’s possession, unless exempted under one of the exceptions of the Act. . 42 U.S.C. §§ 4321 et seq. . These facts are in sharp contrasts with the MWRA's application, which among other measures, spent more than $10 million on the site selection process and obtained the necessary environmental approvals from state and federal authorities. See United States v. Metropolitan Dist. Com’n, 930 F.2d 132, 134 (1st Cir.1991). . A different majority of two judges, however, concluded that the district court had not found that "political pressure” had influenced the Secretary’s decision. Significantly, only one judge in the panel found that the district court had held that “extraneous pressure” had coerced the Secretary to approve the bridge project. Id. at 1246. . See generally United States v. Metropolitan Dist. Comm’n, 23 Env’t Rep.Cas. 1350, 1985 WL 9071 (D.Mass.1985).

Shelton v. Marsh

KENNEDY, Circuit Judge. Appellants appeal the District Court’s dismissal for failure to state a claim in their action under the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq. Appellants sued the Army Corps of Engineers (the Corps) to prevent the construction of a shopping mall which would destroy a wetland area in Ashland, Kentucky. They claimed that the permits allowing development were invalid because they were granted outside the procedures of the CWA. The District Court dismissed the action on the grounds that appellants failed to allege facts which would support a finding that the relevant regulatory provisions of the CWA were violated, and that any procedural errors that may have occurred were harmless. We agree with the District Court and AFFIRM. Congress vested the Corps with authority to issue development permits to regulate the discharge of dredged and fill material into navigable waterways. 33 U.S.C. § 1344. So-called “section 404 permits” are given on a case-by-case basis and are issued only upon compliance with specific criteria. The Corps can also authorize development of wetlands by issuing what is known as a Nationwide Permit Number 26 (NWP 26) under 33 C.F.R. § 330.5(a)(26). NWP 26 permits are not subject to the same approval criteria as section 404 permits. Congress authorized the Corps to grant such general permits where the area affected is small and the need for full review of the proposed activity is slight. The Glimcher Company (Glimcher) applied to the Corps for a section 404 permit on October 15, 1987 to build a shopping mall along a 1,500 foot stretch of Long Branch Creek in Ashland, Kentucky. Glimcher proposed to divert the creek through a culvert and to fill the creek bed and some surrounding wetlands with earth and rock fill material. According to Glimcher, this would involve filling a total of 8.5 acres of wetland area. On November 4,1987, the Corps issued a public notice of Glimcher’s permit application to solicit comments. It received various comments, including a November 19, 1987 letter from the Kentucky Department of Fish & Wildlife Resources (KDFWR) which was forwarded to the Corps by the Kentucky Natural Resources and Environmental Protection Cabinet (KNREPC) by letter of January 11, 1988. The January 11, 1988 KNREPC letter recommended that there be a “two for one” mitigation of wetland loss, meaning that two acres of wetland area needed to be recreated for every one lost due to construction. After receiving comments from various state and private organizations, the Corps granted a section 404 permit on February 2. 1988. The permit incorporated the mitigation efforts outlined by the KDFWR, as well as the conditions and restrictions contained in the KNREPC’s January 11, 1988 letter. Following the grant of the general section 404 permit, the Corps reviewed its decision and found that the development would affect only 8.5 acres of wetland area and that the development was above the “headwaters.” The development therefore met the requirements of NWP 26. On June 7, 1988, the Corps sent a letter to Glimcher informing it that it could develop the wetlands pursuant to NWP 26, and that issuance of the NWP 26 permit superseded and took precedence over the previously-issued section 404 permit. It is important to note that the NWP 26 permit incorporated the same conditions, restrictions, and mitigation requirements as contained in the original section 404 permit. Thus, the concerns voiced by the KDFWR in the context of the section 404 permit were addressed under the NWP 26 permit. This action challenges the section 404 permit on the grounds that the Corps failed to consider practicable alternatives to the wetland destruction, that there were methods to mitigate damage that the Corps did not consider, and that the public interest would be adversely affected by the proposed development. When the Corps told appellants that it had issued the permit under NWP 26, rather than section 404, appellants filed an amended complaint on November 3, 1988. That complaint added the allegation that the Corps, in issuing the NWP 26 permit, was attempting to “cover up” its failure to follow regulations in issuing the section 404 permit. It further alleged that the Corps failed to follow regulations to allow modification, revocation, or suspension and notice, and challenged the Corps’ authority to issue an NWP 26 permit after first issuing an individual section 404 permit. The Corps filed a motion to dismiss. Appellants filed a response memorandum which argued that the Corps could not use NWP 26 to cure a defectively-issued section 404 permit. The Corps pointed out in a memorandum that the NWP 26 permit superseded, rather than modified, the section 404 permit and that no additional notice was required for such permits. The District Court granted the Corps' motion to dismiss. It held that appellants failed to allege that the requirements of NWP 26 were not met and, alternatively, that its failure to provide notice pursuant to 33 C.F.R. § 330.7 was at worst a harmless error since actual notice was given with respect to the individual section 404 permit. We review de novo the District Court’s order of dismissal for failure to state a claim, since “[wjhether the complaint states a cause of action on which relief could be granted is a question of law.” Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). Dismissal is warranted if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted). As noted above, the District Court dismissed appellants’ claim on the grounds that development of the Ashland wetlands was authorized pursuant to NWP 26. On appeal appellants first argue that the Corps acted arbitrarily and capriciously in “transmogrifying” the section 404 individual permit into a general NWP 26 permit because “neither the CWA nor the regulations promulgated thereunder authorize the Corps’ unilateral transmogrification of a 404 Individual Permit into a Nationwide Permit_” Appellants’ amended complaint alleges that “[t]o the extent the Corps’ reliance upon the Nationwide Permit may constitute a modification, revocation or suspension of the Individual Permit, the Corps failed to effect such modification, revocation or suspension in accordance and compliance with the statutes, regulations and guidelines_” Appellants’ complaint, however, mischaracterizes the action taken by the Corps. After granting the section 404 permit, it conducted further investigation and discovered that the proposed development met the requirements of the more general NWP 26 permit because the affected wetlands involved less than 10 acres. Appellants do not contest the facts upon which the Corps made this decision. When the Corps contacted Glimcher, it explicitly stated that the NWP 26 permit superseded and replaced the 404 permit. Thus it neither modified, suspended, nor revoked the originally granted section 404 authorization, but merely provided permission for development on a less stringent basis once the Corps found that the requirements for NWP 26 authorization were met. Indeed, there is no material difference between the terms and conditions of the section 404 permit and the NWP 26 permit, since the NWP 26 permit expressly incorporated “all conditions previously specified in the individual [section 404] permit issued on February 2, 1988.” The relationship between section 404 permits and NWP 26 permits was described in Riverside Irrigation District v. Stipo, 658 F.2d 762, 764 (10th Cir.1981): The general rule under Section 404 for anyone planning activity which will result in the discharge of dredged or fill material into waters of the United States is that they must apply for a permit from the Secretary of the Army (who acts through the Corps of Engineers) unless the Secretary has issued a general permit on a state, regional, or nationwide basis covering the planned discharge ac-tivity_ A nationwide permit is automatic which means that if one qualifies for such a permit no application is needed nor must notice be given before beginning the discharge activity. Thus, if a development qualifies for an NWP 26 permit, the Corps is authorized to allow development without the need to secure approval required under section 404. Having determined that Glimcher’s project qualified for an NWP 26 permit, the Corps informed it that development of the wetland could proceed under the authority of the general NWP 26 permit, rather than the previously-issued individual section 404 authorization. Because the Corps did not “modify” or “transmogrify” the original permit in the manner asserted by appellants, their contention that the Corps acted arbitrarily and capriciously is without merit. We must next determine whether the NWP 26 permit was itself issued according to the procedures set out in the regulations. 33 C.F.R. § 330.5 provides: (a) Authorized activities. The following activities are hereby permitted provided they meet the conditions listed in paragraph (b) of this section and, where required, comply with the notification procedures, of § 330.7. (26) Discharges of dredged or fill material into the waters listed in paragraphs (a)(26)(i) and (ii) of this section except those which cause the loss or substantial adverse modification of 10 acres or more of such waters of the United States, including wetlands. For discharges which cause the loss or substantial adverse modification of 1 to 10 acres of such waters, including wetlands, notification to the district engineer is required in accordance with § 330.7 of this Part. Because the shopping mall would affect only 8.5 acres of the Ashland wetlands, any notice requirements are governed by 33 C.F.R. § 330.7, which provides that: (a) The general permittee shall not begin discharges requiring pre-discharge notification pursuant to the nationwide permit at § 330.5(a)(26): (1) Until notified by the district engineer that the work may proceed under the nationwide permit with any special conditions imposed by the district or division engineer; or (3) Unless 20 days have passed from receipt of the notification by the district engineer and no notice has been received from the district or division engineer. After the permittee provides the district engineer with notice of its proposed discharge, the district engineer is required to forward notification of the discharge to the Corps’ division engineer. The district engineer must also give notice to the heads of the Environmental Protection Agency (EPA), the United States Fish and Wildlife Service, and any appropriate state natural resource agency if he believes the proposed discharge may be of importance to those agencies. This notification gives the agencies the opportunity to comment on whether an individual section 404 permit should be required instead of an NWP 26 permit. Specifically, 33 C.F.R. § 330.7(c) provides: (c) District engineer review of notification. Upon receipt of notification, the district engineer will promptly review the general permittee’s notification to determine which of the following procedures should be followed: (1) If the nationwide permit at § 330.5(a)(26) is involved and the district engineer determines either, (i) the proposed activity falls within a class of discharge or will occur in a category of waters which has been previously identified by the Regional Administrator, Environmental Protection Agency; the Regional Director, Fish and Wildlife Service; the Regional Director, National Marine Fisheries Service; or the heads of the appropriate state natural resource agencies as being of particular interest to those agencies; or (ii) The particular discharge has not been previously identified but he believes it may be of importance to those agencies, he will promptly forward the notification to the division engineer and the head and appropriate staff officials of those agencies to afford those agencies an adequate opportunity before such discharge occurs to consider such notification and express their views, if any, to the district engineer concerning whether individual permits should be required. Appellants contend that the NWP 26 permit was invalid because the Corps did not comply with these notice requirements. Upon review of the record, we find that notice was not necessary because all of the interested agencies required to be notified for an NWP 26 permit were notified by the Corps when Glimcher applied for the original section 404 permit. Only the state agency KDFWR objected to the proposal in the context of the section 404 permit. KDFWR’s concerns were addressed and resolved by the conditions placed on the section 404 permit and carried over into the NWP 26 permit. There was simply no reason for the district engineer to think that the KDFWR would object to issuance of the NWP 26 permit. Also, in view of the failure of other agencies to object to the section 404 permit, it was reasonable for the district engineer to conclude that they would not object to the issuance of an NWP 26 permit. Therefore, under the terms of the 33 C.F.R. § 330.7(c), no notice was required. Similarly, we also agree with the District Court’s conclusion that even if notice was required, the failure to provide it was harmless in light of the actual notice the division engineer and agencies received. The District Court noted that the Corps notified the appropriate agencies in the more rigorous and extensive individual permit process. The only agency which had any recommendation to make about the proposed permit was the state agency. The state agency issued a water quality certificate which included the conditions it desired to impose on the project. These conditions carry over and must also be met in order to satisfy the requirements of the NWP. Appellants maintain that the District Court erroneously applied the harmless error doctrine because that doctrine “is to be used only ‘when a mistake of [an] administrative body is one that clearly has no bearing on the procedure used or the substance of the decision reached.’ ” U.S. Steel Corp. v. United States Environmental Protection Agency, 595 F.2d 207, 215 (5th Cir.1979) (quoting Braniff Airways v. CAB, 379 F.2d 453 (D.C.Cir.1967)). They argue that the Corps’ failure to notify violated an integral part of the procedure for issuing NWP 26 permits. However, cases specifically exploring the effect of failure to follow notice procedures have held that the doctrine applies where there is sufficient actual notice. See, e.g., Sagebrush Rebellion, Inc. v. Hodel, 790 F.2d 760, 764 (9th Cir.1986) (“We agree that the notices did not comply in every respect with the terms of section 204(b). However, we find the error to be harmless since the purposes of [the Federal Land Policy Management Act’s] notice requirement were fully satisfied”); Small Refiner Lead Phase-Down Task Force v. United States Environmental Protection Agency, 705 F.2d 506, 549 (D.C.Cir.1983) (“even if the agency has not given notice in the statutorily prescribed fashion, actual notice will render the error harmless”). These eases as well as U.S. Steel support our conclusion that the failure to follow the notice requirement of 33 C.F.R. § 330.7 does not bear on the “procedures used or the substance of the decision reached.” U.S. Steel, 595 F.2d at 215. The Corps’ failure to renotify interested parties that it was issuing a development permit under NWP 26 was harmless in the face of the actual notice it provided to the parties under the individual section 404 permit. Appellants finally argue that the NWP 26 permit was invalid because the Corps did not consider the practical alternatives available for Glimcher’s development project. 33 C.F.R. § 330.5(b) provides: Conditions. The following special conditions must be followed in order for the nationwide permits identified in paragraph (a) of this section to be valid: (14) That the management practices listed in § 330.6 of this part shall be followed to the maximum extent practicable. Section 330.6 in turn provides: (a) In addition to the conditions specified in § 330.5 of this Part, the following management practices shall be followed, to the maximum extent practicable, in order to minimize the adverse effects of these discharges on the aquatic environment. Failure to comply with these practices may be cause for the district engineer to recommend, or the division engineer to take, discretionary authority to regulate the activity on an individual or regional basis pursuant to § 330.8 of this Part. (1) Discharges of dredged or fill material into waters of the United States shall be avoided or minimized through the use of other practical alternatives. (5) Discharge^] in wetlands areas shall be avoided. Appellants assert that because there were several alternatives available for the development which the Corps did not consider, the Corps issued the NWP 26 permit in violation of this regulation. Appellants maintain that the District Court erred in not considering this violation. We first note that appellants failed to assert this defect in their amended complaint and are not entitled to raise the issue on appeal. However, we reject the appellants’ contention on the merits as well. The regulations under section 330.6 apply to actions by the permittee. They are not, as appellants contend, approval criteria for issuing NWP 26 permits. Rather, the regulation merely requires that permittees comply with whatever special management practices are deemed necessary to minimize any damage to wetlands. This is clear from the regulation’s language, which gives the district engineer discretion to modify the NWP 26 permits if he finds that the permittee is not following the management practices outlined in section 330.6. See 33 C.F.R. § 330.8. Because the regulation authorizes modification of the permit if the permittee is not using best management practices, it logically follows that it operates only once the permit is issued. Therefore, section 330.6 regulations cannot serve as criteria for approving and issuing permits. Accordingly, the judgment of the District Court dismissing appellants' complaint for failure to state a claim is AFFIRMED. . Appellants in this action are Jim Shelton, William Shrewsbury, and Michael Borders, individuals who live, work, and/or own property in Ashland, Kentucky. George D. Zamias is a partner in a Pennsylvania corporation that is constructing a shopping mall in the Ashland area. . Appellees in this case are various officials associated with the Army Corps of Engineers. . The criteria are set out at 40 C.F.R. Part 230. They are commonly referred to as "Section 404(b)(1) Guidelines." . “The term ‘headwaters’ means the point on a non-tidal stream above which the average annual flow is less than five cubic feet per second.” 33 C.F.R. § 330.2(b). . Appellants argue that the district engineer had "more than ample" reason to think Glimcher’s plan would be of importance to the EPA, the U.S. Fish and Wildlife Service, the Kentucky Department of Fish & Wildlife Resources, and the Kentucky Natural Resources and Environmental Protection Cabinet. They cite as evidence 40 C.F.R. § 230.10(a)(3), stating that wetlands are "special aquatic sites," and 33 C.F.R. § 320(b)(2) which deems wetlands "important" to the public interest. They also rely on a letter from the U.S. Fish and Wildlife Service that opposes wetlands development in general, and a letter from the Kentucky Natural Resources and Environmental Protection Cabinet opposing the Ashland development absent efforts to mitigate damage to the wetlands. Although these things do indicate concern for wetlands development on the part of the agencies, they do not compel a finding that the district engineer was required to give notice. The statutorily-expressed concern for the environment in general or wetlands in particular does not mean that those agencies would have an important interest in Glimcher’s specific development. It was reasonable for the district engineer to conclude that the notice given relative to the section 404 permit would have satisfied the agencies’ interests in the development. Renotification would have thus been duplicative and unwarranted. . The notice requirement at issue in Sagebrush was similar to the one involved in this appeal. Notice was necessary in order to inform the public of administrative action and to allow the opportunity for concerned parties to voice their opinions. 790 F.2d at 765. . Appellants’ citation to Bersani v. United States Environmental Protection Agency, 674 F.Supp. 405 (N.D.N.Y.1987), aff’d sub nom. Bersani v. Robichaud, 850 F.2d 36 (2d Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1556, 103 L.Ed.2d 859 (1989), is misplaced. That case involved the consideration of alternatives in the context of a section 404 permit, rather than an NWP 26 permit.

Riverside Irrigation District v. Andrews

McKAY, Circuit Judge. The issue in this case is whether the Corps of Engineers exceeded its authority when it denied plaintiffs a nationwide permit for deposit of dredge material for construction of Wildcat Dam and Reservoir. The Corps based its decision on the potential downstream impact on an endangered species due to the resulting increased consumptive use of water. Plaintiffs seek to build a dam and reservoir on Wildcat Creek, a tributary of the South Platte River. Because construction of the dam involves depositing dredge and fill material in a navigable waterway, the plaintiffs are required to obtain a permit from the Corps of Engineers under Section 404 of the Clean Water Act, 33 U.S.C. § 1344. The regulations under the Clean Water Act create categories of nationwide permits that provide automatic authority to place fill material if certain conditions are met. 33 C.F.R. § 330.4. If the conditions are not met, the party must seek an individual permit through a public notice and hearing process. The Corps determined that the proposed deposit did not meet the required conditions because the increased use of water that the resulting reservoir would facilitate would deplete the stream flow and endanger a critical habitat of the whooping crane, an endangered species. The Corps therefore informed the plaintiffs that they would be required to obtain an individual permit before the project could proceed. Plaintiffs filed this suit seeking declaratory and injunctive relief and review of the agency action, claiming that the project is entitled to proceed under a nationwide permit and that the Corps exceeded its authority when it considered the effect of depletions caused by consumptive use of the water to be stored in the reservoir. An interlocutory appeal was taken from the district court’s decision denying the government’s motion to dismiss for lack of jurisdiction. This court affirmed the trial court, and remanded “for a determination whether the Engineer acted within his authority and to resolve whatever issues may remain.” Riverside Irrigation District v. Stipo, 658 F.2d 762, 768 (10th Cir.1981). On remand, the district court held that the engineer had acted within his authority and that he was required, under the Clean Water Act and the Endangered Species Act, to deny the nationwide permit. Plaintiffs appeal. A nationwide permit is one covering a category of activities occurring throughout the country that involve discharges of dredge or fill material that will cause only minimal adverse effects on the environment when performed separately and that will have only minimal cumulative effects. See 33 U.S.C. § 1344(e)(1). Such a permit is automatic in that if one qualifies, no application is needed before beginning the discharge activity. Riverside Irrigation District v. Andrews, 568 F.Supp. 583, 585 (D.Colo. 1983). The Corps has the authority and duty, however, to ensure that parties seeking to proceed under a nationwide permit meet the requirements for such action. One condition of a nationwide permit is that the discharge not destroy a threatened or endangered species as identified under the Endangered Species Act, or destroy or adversely modify the critical habitat of such species. 33 C.F.R. § 330.-4(b)(2). The regulations thus are consistent with the Corps’ obligation, under the Endangered Species Act, to ensure that “any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... to be critical.” 16 U.S.C. § 1536(a)(2). No one claims that the fill itself will endanger or destroy the habitat of an endangered species or adversely affect the aquatic environment. However, the fill that the Corps is authorizing is required to build the earthen dam. The dam will result in the impoundment of water in a reservoir, facilitating the use of the water in Wildcat Creek. The increased consumptive use will allegedly deplete the stream flow, and it is this depletion that the Corps found would adversely affect the habitat of the whooping crane. The Endangered Species Act does not, by its terms, enlarge the jurisdiction of the Corps of Engineers under the Clean Water Act. Riverside Irrigation District, 568 F.2d at 588; cf. United States v. Stoeco Homes, Inc., 498 F.2d 597, 607 (3d Cir. 1974) (federal environmental statutes do not enlarge the Corps’ jurisdiction under the Rivers and Harbors Appropriations Act). However, it imposes ’on agencies a mandatory obligation to consider the environmental impacts of the projects that they authorize or fund. As the Supreme Court stated in TVA v. Hill, 437 U.S. 153, 173, 98 S.Ct. 2279, 2291, 57 L.Ed.2d 117 (1978): One would be hard pressed to find a statutory provision whose terms were any plainer than those of § 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies “to insure that actions authorized, funded or carried out by them do not jeopardize the continued existence” of an endangered species or “result in the destruction or adverse modification of habitat of such species.” 16 U.S.C. § 1536. This language admits of no exception, (emphasis in original). The question in this case is how broadly the Corps is authorized to look under the Clean Water Act in determining the environmental impact of the discharge that it is authorizing. Plaintiffs claim that the Corps is authorized to consider only the direct, on-site effects of the discharge, particularly the effects on water quality, and that the Corps exceeded its authority by considering downstream effects of changes in water quantity. However, both the statute and the regulations authorize the Corps to consider downstream effects of changes in water quantity as well as on-site changes in water quality in determining whether a proposed discharge qualifies for a nationwide permit. The statute explicitly requires that a permit be obtained for any discharge “incidental to any activity having as its purpose bringing an area of 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 reduced.” 33 U.S.C. § 1344(f)(2). The guidelines for determining compliance with section 404(b)(1), developed by the Secretary of the Army and the Environmental Protection Agency, require the permitting authority to consider factors related to water quantity, including the effects of the discharge on water velocity, current patterns, water circulation, and normal water fluctuations. 40 C.F.R. §§ 230.23, 230.24. Thus, the statute focuses not merely on water quality, but rather on all of the effects on the “aquatic environment” caused by replacing water with fill material. 33 U.S.C. § 1344(f)(1)(E). Minnehaha Creek Watershed District v. Hoffman, 597 F.2d 617, 627 (8th Cir.1979). Plaintiffs argue that, even if the Corps can consider effects of changes in water quantity, it can do so only when the-change is a direct effect of the discharge. In the present case, the depletion of water is an indirect effect of the discharge, in that it results from the increased consumptive use of water facilitated by the discharge. However, the Corps is required, under both the Clean Water Act and the Endangered Species Act, to consider the environmental impact of the discharge that it is authorizing. To require it to ignore the indirect effects that result from its actions would be to require it to wear blinders that Congress has not chosen to impose. The fact that the reduction in water does not result “from direct federal action does not lessen the appellee’s duty under § 7 [of the Endangered Species Act].” National Wildlife Federation v. Coleman, 529 F.2d 359, 374 (5th Cir.1976). The relevant consideration is the total impact of the discharge on the crane. Id. at 373. In National Wildlife Federation, the Fifth Circuit held that the federal agency was required to consider both the direct and the indirect impacts of proposed highway construction, including the residential and commercial development that would develop around the highway interchanges. Similarly, in this case, the Corps was required to consider all effects, direct and indirect, of the discharge for which authorization was sought. The cases cited by the plaintiffs to the contrary are not controlling. Each involves the National Environmental Protection Act (NEPA), which authorizes the government to look at environmental concerns only when there is “major federal action.” 42 U.S.C. § 4332(2)(C) (1976). Thus, in each, the question is whether the project is sufficiently federal to require an environmental impact statement at all. The Clean Water Act does not require major federal action before the Corps must consider environmental impacts. Rather, the Corps must consider the environmental impact of each act that it authorizes, both major and minor. In creating categories of nationwide permits, the Corps has “acted” to authorize discharges. Thus, simply allowing a party to proceed under the nationwide permit is an action by the Corps triggering its obligation to consider environmental impacts. There is no authority for the proposition that, once it is required to consider the environmental impact of the discharge that it is authorizing, the Corps is limited to consideration of the direct effects of the discharge. The reduction of water flows resulting from the increased consumptive use is an effect, albeit indirect, of the discharge to be authorized by the Corps. The discharge thus may “destroy or adversely modify” the critical habitat of an endangered species, and the Corps correctly found that the proposed project did not meet the requirements for a nationwide permit. Plaintiffs claim that the Corps cannot deny them a nationwide permit because the denial impairs the state’s right to allocate water within its jurisdiction, in violation of section 101(g) of the Act (the “Wallop Amendment”). Even if denial of a nationwide permit is considered an impairment of the state’s authority to allocate water, a question that we do not decide, the Corps acted within its authority. As discussed above, the statute and regulations expressly require the Corps to consider changes in water quantity in granting nationwide permits. Section 101(g), which is only a general policy statement, “cannot nullify a clear and specific grant of jurisdiction, even if the particular grant seems inconsistent with the broadly stated purpose.” Connecticut Light and Power Co. v. Federal Power Commission, 324 U.S. 515, 527, 65 S.Ct. 749, 754, 89 L.Ed. 1150 (1945). Thus, the Corps did not exceed its authority in denying a nationwide permit based on its determination that the depletion in water flow resulting from increased consumptive use of water would adversely affect the critical habitat of the whooping crane. The Wallop Amendment does, however, indicate “that Congress did not want to interfere any more than necessary with state water management.” National Wildlife Federation v. Gorsuch, 693 F.2d 156, 178 (D.C.Cir.1982). A fair reading of the statute as a whole makes clear that, where both the state’s interest in allocating water and the federal government’s interest in protecting the environment are implicated, Congress intended an accommodation. Such accommodations are best reached in the individual permit process. We need not reach the question raised by plaintiffs of whether Congress can unilaterally abrogate an interstate compact. The action by the Corps has not denied Colorado its right to water use under the South Platte River Compact. All that has been done is to deny them the ability to proceed under a nationwide permit and to require them to apply for an individual permit under public notice and hearing procedures. As plaintiffs may receive an individual permit and be able to proceed with the project, a decision on the question of the impact of the interstate compact would be premature. We also need not decide whether the project will, in fact, have an adverse impact on the habitat of the whooping crane. Plaintiffs are entitled to proceed under a nationwide permit only if- they can show that they meet the conditions for such a permit. Thus, plaintiffs must show “that the discharge will not destroy a threatened or endangered species as identified in the Endangered Species Act or destroy or adversely modify the critical habitat of such species.” 33 C.F.R. § 330.-4(b)(2). The record supports the Corps’ finding that the discharge may adversely modify the critical habitat of the whooping crane. Thus, plaintiffs did not meet their burden of showing, as a matter of fact, that the discharge will not have such an adverse impact. The Corps acted within its authority in' requiring the plaintiffs to proceed under the individual permit procedure. AFFIRMED. . We assume, for purposes of this appeal, that Wildcat Creek is a navigable waterway as defined in the Clean Water Act. While plaintiffs claim to have reserved the right to argue this point in later proceedings, they have not argued the point before this court. . When the suit began, the relevant regulation was 33 C.F.R. § 323.4-2. The Corps promulgated revised regulations during the remand to the district court. Plaintiffs do not argue that the revision had any impact on the issues in this case. Brief for Riverside at 9, n. 3. . The Wallop Amendment provides that: It is the policy of Congress that the authority of each State to allocate water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this Act. It is the further policy of Congress that nothing in this Act shall be construed to supersede or abrogate rights to quantities of water which have been established by any State. 33 U.S.C. § 1251(g) (1982).

Town of Huntington v. Marsh

ALTIMARI, Circuit Judge: The Long Island Sound (the “Sound”) is host to a myriad of recreational and industrial uses, including swimming, boating and fishing. Recreational users, commercial fisheries and environmentalists share a sometimes uneasy co-existence with use of the Sound as a waste dumping ground. Marinas and harbors which line the Sound must be dredged periodically to provide safe berthing for pleasure craft, commercial fishing boats, and military ships. The spoil from these dredging operations has for decades been dumped into the Sound. This litigation arises out of the ongoing effort of citizens and the federal government to balance the use of the Sound as a waste dumpsite with the need to protect its increasingly fragile waters. The United States Army Corps of Engineers, et al. (the “Corps”) appeal from a judgment entered in the United States District Court for the Eastern District of New York (Jacob Mishler, Judge), denying their cross-motion for summary judgment, and granting plaintiffs’ motions for summary judgment and a permanent injunction. The district court held that a 1980 amendment to the Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. §§ 1401 et seq. (1982) (“Ocean Dumping Act” or “Act”) applies to initial designation of an open water waste dumpsite in the Sound. The district court also held that an environmental impact statement (“EIS”) submitted by the Corps was inadequate under both the Ocean Dumping Act and the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq. (1982 & Supp. Ill 1985) for its failure to discuss fully the types, quantities and cumulative effects of waste disposal at a new dumpsite. The district court enjoined the Corps from issuing dumping permits for dredged waste disposal in the Sound until the Corps issues a supplemental EIS which fully complies with NEPA and the Ocean Dumping Act. On this appeal, the Corps contends that the Act does not apply to designation of a new dumpsite in the Sound because the Sound is inland not “ocean waters,” and because permit applicants who were to utilize the new site were exempt from regulation under the Act. Specifically, the Corps argues that the Ocean Dumping Act as it relates to the Sound is triggered only when the Corps is presented with an application concerning a federal project or a nonfederal project of more than 25,000 cubic yards (“cys”). In all other situations, according to the Corps, the Sound is governed by the Clean Water Act and not by the Ocean Dumping Act. The Corps also contends that its EIS was adequate because the Corps was required to consider the types, quantities and cumulative effects of waste dumping at the new site only on a case-by-case basis and not at the time the site was chosen. Finally, the Corps asserts that the district court erred as a matter of law when it issued an injunction prohibiting the Corps from violating NEPA. For the reasons that follow, the judgment of the district court granting plaintiffs’ motion and denying defendants’ cross-motion for summary judgment is affirmed. The permanent injunction is vacated, and the case is remanded for further proceedings. BACKGROUND In the fall of 1980, the Corps received applications from 23 parties (the “Applicants”) requesting permits to conduct dredging operations on their properties in Mamaroneck, New York and to dispose of the dredged material in an ocean dumpsite. The Applicants were mainly owners and operators of marinas in Mamaroneck Harbor located on the Sound. The Corps had previously announced its intention to dredge federal waterways in the area, and the Applicants wished to take advantage of the presence of dredging contractors who were to perform the federal maintenance operation. They hoped to reduce the expense of their dredging operations since dredging equipment would already be in place in the harbor. Consequently, the Applicants initially requested to dispose of their waste material in an area called the “Mud Dump Site” where the Corps was also to dispose of its spoils. The Mud Dump Site, located in the Atlantic Ocean off the New Jersey coast, has been in use as a dredge waste dumpsite for more than seventy years and since 1960 has received over 9.5 million cys of waste. The Corps planned to add some 60,000-145,000 cys of waste from its Mamaroneck Harbor project; the Applicants collectively planned to add approximately 86,000 cys of waste, though no individual project was to exceed 25,000 cys. Regulations promulgated under the Ocean Dumping Act require analysis of the types of sediments to be dredged before permits may be issued. To satisfy this requirement, the Applicants requested that the Corps accept the results of the Corps’ own federal sampling of Mamaroneck Harbor. The Corps agreed to accept its data as representative of the Applicants’ sediments and found that sediments from Ma-maroneek Harbor would have no significant impact if disposed at the heavily used Mud Dump Site. On March 23, 1981, the Corps issued permits to the Applicants for the Mud Dump Site. However, because of fiscal and time constraints, the Applicants were not able to accomplish their dredging. As a result, on the same day that they were issued Mud Dump Site permits, the Applicants asked the Corps to modify the permits to allow disposal of their waste at “the closest available site” in the Sound. In their modification request, the Applicants asked to be considered as a single entity in order to demonstrate the need for a dumpsite in the Sound, stating that they would “ultimately enter into a collective contract which would insure that the total yardage to be assembled and dumped would exceed 25,000 cubic yards.” At the same time, they asked to be considered individually in order to avoid the environmental testing requirements of the Ocean Dumping Act. The Corps issued a public notice of the modification request and indicated that test results from the previous Mamaroneck Harbor study would be used to evaluate the request. The Corps granted the Applicants’ request, permitting them to dump at the Central Long Island Sound (“CLIS”) dumpsite located off the shores of New Haven, Connecticut. On September 1, 1981, the Applicants again requested that their permits be modified, this time to allow dumping further west in the Sound. The purpose of the modification was to gain access to a site which would entail lower transportation costs than the CLIS site. The Applicants, still acting collectively, stated that the new modification might be “the difference between the entire project going forward, being severely cut back, or indefinitely postponed.” However, of the 19 historically used sites scattered throughout the Long Island Sound, 16 had been closed for environmental reasons, leaving the western Sound without a dumpsite. In order to fulfill the modification request, the Corps was required to designate a new dumpsite. The Applicants suggested that there were several potential sites which could be used, including “the triangle site bordered by the old [closed] Stamford, Norwalk and Eatons Neck Dump Sites.” The Corps adopted this suggestion, proposing to designate this site located off the shores of Huntington, New York as Western Long Island Sound III (“WLIS III”). The Corps also proposed to utilize the newly designated site as the repository for spoils from additional federal dredging projects. In its public notice announcing the proposal to designate WLIS III, the Corps listed two “[planned Federal projects which could be served” by the new site. The Corps intended to dredge 530,000 cys of waste from Flushing Bay, New York and 30,000 cys from Mian-us River, Connecticut. With the addition of the 86,000 cys from Mamaroneck Harbor, the new site from its inception was intended to be the repository of at least 646,000 cys of dredged waste material— well in excess of the 560,000 cys projected for WLIS III by the Corps in its public notice. The designation of a new dumping ground in the western Sound is a “major Federal action" requiring an EIS under NEPA. See 42 U.S.C. § 4332(2)(C). Accordingly, public hearings were held in late October 1981 to discuss designation of the new site. Predictably, those in attendance at the hearings held in Mamaroneck and Norwalk generally were in favor of the proposal, while those at the Huntington meeting generally were opposed to the site designation. On December 9, 1981, the Corps published its intention to submit an EIS for the WLIS III site, and issued its draft EIS (“DEIS”) nine days later. The DEIS was written to “describe[] the impacts” of designating an open water disposal site in the western Sound. In its discussion of the needs and objectives for the new site, the Corps stated that the proposed site would “service the ports and harbors within the Western Long Island Sound area” and cited the 23 Mamaroneck Applicants as potential users of the newly designated location. In its discussion of alternatives to the proposed action, the Corps specifically considered 13 potential sites, including WLIS III. The Corps immediately eliminated 11 of these sites, stating that eight sites had already been closed for environmental reasons, two were being used as lobster fisheries, and one was not viable because it was located in a cable area used by electric utility companies. The DEIS purported to analyze the remaining open water site, WLIS III, and the possibility of taking “no action.” Much of the data used in the DEIS was extrapolated from the draft of a programmatic EIS for Long Island Sound (the “DPEIS”). The DPEIS, undertaken several years earlier, was a generic impact study of dredged waste disposal in the entire Long Island Sound and was not intended to focus specifically on any single site. The Corps incorporated the DPEIS into the impact statement for the purpose of providing general environmental data about the area surrounding WLIS III. Citing the fact that “[t]here presently exists no chemical data on the sediments at the [proposed] site,” the Corps omitted chemical analysis of WLIS III sediments in its EIS. Evaluation of water quality at the proposed site was also omitted, in favor of a generalized discussion of western Sound waters taken from the DPEIS. Analysis of specific environmental impacts of disposal at WLIS III were “to be addressed on a dredging project specific basis” at a later stage, when individual permit applications were evaluated. Although the DEIS indicated that there would be a “short term release of sediment contaminants into the water column” at WLIS III, the precise nature of the contamination “would depend on the nature of the sediments” which would not be known until after designation of the site. Similarly, analysis of toxicity to living organisms at the site was deferred to the permit evaluation stage as was analysis of chemical contamination to the floor of the WLIS III site. The Corps solicited comments regarding the DEIS from relevant federal, state and local environmental agencies, and interested private citizens. Comments critical of the DEIS included letters from the Department of Commerce Office of Marine Pollution Assessment, the Fish and Wildlife Service, the Town of Huntington and numerous others. The Department of the Interi- or Office of Environmental Project Review complained of the lack of “critical analysis of alternatives” in the DEIS, stating that the majority of alternatives presented “appeared] to be ‘straw men’ ” since most had either been closed or were committed to other uses. The Suffolk County Executive and the Long Island Sound Taskforce complained that the DEIS failed adequately to detail likely users of the new site. Most of the additional criticism received by the Corps was directed at the apparent haste with which the draft was prepared, lack of data on the types and quantities of material to be disposed of, lack of analysis of the cumulative effects of disposal at WLIS III, and lack of data specific to the WLIS III site. A final EIS (“FEIS”) was issued on February 12, 1982 substantially unchanged from the DEIS. In response to the critical comments received, the FEIS listed 24 federally authorized channels in the western Long Island Sound which “could potentially utilize the WLIS III disposal site.” These channels included Mamaroneck Harbor, and were in addition to the Applicants’ dredging projects. The Corps reiterated that the types, quantities and cumulative effects of disposal would be analyzed on a case-by-case basis during review of permit applications. Thus, sediments from the 23 harbors other than Mamaroneck were not evaluated for their effects on WLIS III. DISCUSSION The Corps principally contends on this appeal that NEPA requires only that an agency follow certain specified procedures in reaching its decision. The Corps maintains that the statute’s requirements are fulfilled when an agency’s conclusions in the EIS have a substantial basis in fact and the EIS considers reasonable opposing views. The Corps also contends that the district court’s issuance of a permanent injunction was erroneous as a matter of law. A. Applicability of the Ocean Dumping Act The opposing parties in the instant case rely heavily on regulations promulgated under the Ocean Dumping Act in arriving at their positions. We review the question of whether the Act applies to designation of a new disposal site in the Sound by bearing in mind that an agency is entitled to deference regarding interpretation of regulations it participated in formulating and is charged with administering. Bersani v. Robichaud, 850 F.2d 36, 45 (2d Cir.1988) and cases cited therein; National Wildlife Federation v. Benn, 491 F.Supp. 1234, 1245 (S.D.N.Y.1980). This Court, however, will affirm the decision of the district court if we concur in its finding that the Corps’ action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Bersani, 850 F.2d at 46. 1. Legislative history Recognizing the dangers of unregulated dumping of waste materials into ocean waters, Congress in 1972 enacted the Ocean Dumping Act, 33 U.S.C. §§ 1401 et seq. (1982). Under the Ocean Dumping Act, the Secretary of the Army, through the United States Army Corps of Engineers, shares responsibility with the Administrator of the Environmental Protection Agency (“EPA”) for implementing federal environmental policies and goals with regard to ocean dumping. The Corps is given responsibility, with oversight from the EPA, for issuing permits for transportation and disposal of dredged wastes into the ocean. 33 U.S.C. § 1413. Congress amended the Ocean Dumping Act in 1980 to require that dumping of dredged material in Long Island Sound by federal agencies, or by private parties whose projects exceed 25,000 cys of waste, be subject to the environmental testing criteria of the Act. 33 U.S.C. § 1416(f). These criteria establish strict standards for determining whether and where dredged wastes may be disposed in the ocean and are more stringent than those promulgated under the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. (1982 & Supp. Ill 1985) (the “Clean Water Act”), which regulates the Corps’ dredged waste permit program for inland waters. Thus, the 1980 amendment subjects the Sound to two qualitatively different regulatory schemes. The 1980 amendment to the Ocean Dumping Act reads in pertinent part: the dumping of dredged material in Long Island Sound from any Federal project (or pursuant to Federal authorization) or from a dredging project by a non-Federal applicant exceeding 25,000 cubic yards shall comply with the criteria established pursuant to the second sentence of section 1412(a) of this title relating to the effects of dumping. 33 U.S.C. § 1416(f). The bill was proposed in order to “amend existing law to consider the Long Island Sound as ocean waters for the purpose of ocean dumping regulation.” H.R.Rep. No. 894, Part 1, 96th Cong., 2d Sess. 2 (1980) U.S.Code Cong. & Admin. News p. 2572 (emphasis added). Congress declined to recharacterize the Sound as “ocean waters” in the definitional sense, choosing instead to focus on the permit evaluation process as a means of applying Ocean Dumping criteria. An interim proposal provided that “any permit issued under section 404 of the Clean Water Act” for dredged waste disposal in the Sound be subject to the testing criteria of the Ocean Dumping Act. 126 Cong. Rec. H31919 (Dec. 3, 1980). However, this version led to concerns that marina owners “engaged in small dredging projects” would be unduly burdened by “an unrealistically costly set of testing standards.” 126 Cong.Rec. H34063 (Dec. 13, 1980) (remarks of Rep. Studds). The final version of the bill thus provided that “small marine owners dumping less than [25,000] cubic yards would be exempt” from the testing requirements of the Ocean Dumping Act. 126 Cong.Rec. S33788 (Dec. 12, 1980) (remarks of Sen. Moynihan). The exemption notwithstanding, Congress intended that “the bulk” of dredged waste dumping be subject to the ocean dumping criteria. In enacting the bill, Congress noted that federal projects and private operations exceeding 25,000 cys comprised “94 percent of all dredged material dumped in the sound.” 126 Cong.Rec. H34063 (Dec. 13, 1980) (remarks of Rep. Ambro). Private dredging operations consisting of less than 25,000 cys would “still be subject to the Clean Water Act criteria.” Id. The amendment obviously was intended to strengthen permit evaluation procedures regarding dredged waste disposal in the Sound. However, an ambiguity exists whether designation of a new site is encompassed by the amendment. We think the answer lies in the regulatory scheme for permit evaluations. 2. Permit evaluation procedures Under both the Clean Water Act and the Ocean Dumping Act, site designation is part of the permit evaluation process. See National Wildlife Federation v. Costle, 629 F.2d 118, 127 (D.C.Cir.1980) (Corps’ designation of dumpsite is exercise of its permit licensing authority). The Clean Water Act’s permit review regulations, 33 C.F. R. § 323.6(a), require the Corps to “review applications for permits for the discharge of dredged or fill material ... in accordance with guidelines promulgated by the Administrator [of the] EPA,” and refer the Corps to EPA site designation regulations, 40 C.F.R. Part 230. Similarly, the Ocean Dumping Act regulations, 33 C.F.R. § 324.1, set forth procedures to be followed by the Corps “in connection with the review of applications for ocean dumping permits” at dumping sites designated under 40 C.F.R. Part 228. The Corps contends that 40 C.F.R. Part 228 applies only to the evaluation of permits and not to designation of a new site. We think the Corps reads the regulations too narrowly. Section 228.4(e)(2), titled “Dredged Material Permits”, clearly envisions situations “where a recommended disposal site has not been designated by the Administrator, or where it is not feasible to utilize a recommended disposal site that has been designated by the Administrator.” In those situations, Section 228.-4(e)(2) provides that the Corps “shall, in consultation with EPA, select a site” in accordance with specific criteria for site selection promulgated by the EPA. (emphasis added). When the Applicants requested permits for a site in the western Sound, the Corps was presented with a situation in which it was “not feasible to utilize a recommended disposal site.” As the Corps indicated in its public notice on the newly proposed site, designation of WLIS III was undertaken in order to provide the Applicants with a less costly disposal site as well as to provide for the Flushing Bay and Mianus River federal projects. Congress was emphatic that the Ocean Dumping Act was not intended to permit large private dredgers “to evade additional testing requirements by breaking an integral project involving more than 25,000 cubic yards into smaller pieces.” 126 Cong. Rec. H34063 (Dec. 13, 1980) (remarks of Rep. Ambro). Although the Applicants clearly considered themselves to be a unit for purposes of obtaining permission to dump in the Sound, they wanted to be treated separately in order to avoid “costly sampling and testing such as bio-assay sampling” required by the ocean dumping criteria. By entering into a “collective contract,” the Applicants sought to gain the economic benefits of a large dredging project while evading the testing requirements of the Act. We have serious doubts as to whether the Corps should have considered the Applicants separately given that the total yardage of waste collected among them would exceed 25,000 cys. The Corps has simply done for the Applicants what the Applicants are not permitted to do for themselves, i.e., evade the ocean dumping criteria for projects in excess of 25,000 cys. Even assuming that the Applicants were entitled to be treated separately and thus were exempt under the Act, the Corps’ own plans to dredge 560,000 cys of waste from Flushing Bay and Mianus River were not exempt, nor were the remaining federally authorized harbor projects listed in the FEIS. There is no question that federal projects are covered by the 1980 amendment and not by the standards of the Clean Water Act. We therefore agree with Judge Mishler that the Ocean Dumping Act applies to the designation of WLIS III. B. Sufficiency of the EIS We turn now to the question of whether the EIS submitted by the Corps satisfied the rigorous requirements of the Act. The sufficiency of an EIS is determined according to the “rule of reason,” under which the EIS will be upheld as adequate if it has been compiled in good faith and sets forth sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm ... against the benefits to be derived from the proposed action, as well as to make a reasoned choice between alternatives. County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1375 (2d Cir.1977), cert. denied 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978). This Court of course is “in as good a position as the district court to determine on the undisputed facts what could reasonably be required of the EIS in issue.” Id. (citations omitted). After reviewing the voluminous submissions, including the FEIS, DEIS, DPEIS and their various appendices, we conclude that the EIS submitted by the Corps did not adequately analyze the types, quantities and cumulative effects of spoil to be dumped at WLIS III. Although data from an earlier federal survey of the Ma-maroneck Harbor was included in the EIS, that data was insufficient to permit an informed site designation decision by the Corps. The vast bulk of material, 560,000 cys of waste from Flushing Bay and Mianus River, was not analyzed in the study. While we agree with the Corps that it was not required to engage in a “crystal ball inquiry” into all possible future permit applications for purposes of a site designation study, see Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 551, 98 S.Ct. 1197, 1215, 55 L.Ed.2d 460 (1978) (EIS is not defective simply because agency fails to “ferret out every possible alternative”); County of Suffolk, 562 F.2d at 1378 (EIS need not include mere speculation as to future events), the possibility that the WLIS III site would be utilized by two federal projects involving 560,000 cys of waste was certainly foreseeable. The Corps’ public notice announcing hearings on the designation of WLIS III listed the Flushing Bay and Mianus River projects as “Planned Corps of Engineer Maintenance Dredging” projects. Nevertheless, there was no mention at all of the Flushing Bay project in the final EIS. Moreover, 23 of the 24 harbor projects that were mentioned did not include any data on the types or quantities of their sediments. The sole exception was Mamaroneck Harbor, for which data was available from an earlier survey. The Ocean Dumping Act by its terms contemplates that projects of the magnitude of the Flushing Bay dredging operation be carefully analyzed when making site designation decisions. The dumping permit program for dredged material, 33 U.S.C. §§ 1413(a) and (b), requires the Corps to determine appropriate locations for dumping in accordance with the criteria set forth in 33 U.S.C. § 1412(a), including the effect of dumping “particular volumes and concentrations” of material, and the “persistence and permanence” of the effects of dumping. 33 U.S.C. § 1412(a)(E) and (F). While Section 1412 of the Ocean Dumping Act outlines the broad parameters of the necessary environmental factors to be considered, it is Section 228.6 of the EPA’s site designation guidelines which indicates the requisite specificity of the environmental analysis to be undertaken. Those regulations, captioned “Specific criteria for site selection,” require consideration of “[tjypes and quantities of wastes proposed to be disposed of” and “[e]xis-tence and effects of current and previous discharges and dumping in the area (including cumulative effects).” 40 C.F.R. § 228.6(a)(4) and (7). Finally, Section 228.-6(b) of the EPA site designation guidelines states that this detailed analysis “will be used in the preparation of an environmental impact statement for each site where such a statement is required by EPA policy.” Thus, the Corps’ decision to prepare an EIS for designation of WLIS III triggered applicability of the full panoply of Ocean Dumping Act criteria, and these criteria should have been considered in formulating the EIS. C. NEPA An EIS required under NEPA must assess any adverse effects of a proposed action, alternatives to the proposal, the relationship between short-term use and long-term productivity of the affected environment, and any irreversible and irretrievable commitments of resources which would be involved in the implementation of the proposal. 42 U.S.C. § 4332(2)(C) (1982). The purpose of an EIS is to “compel the decision-maker to give serious weight to environmental factors” in making choices, and to enable the public to “understand and consider meaningfully the factors involved.” County of Suffolk, 562 F.2d at 1375 (citing Sierra Club v. Morton, 510 F.2d 813, 819 (5th Cir.1975)). See City of New York v. U.S. Dep’t of Transp., 715 F.2d 732, 747-48 (2d Cir.1983), cert. denied, 465 U.S. 1055, 104 S.Ct. 1403, 79 L.Ed.2d 730 (1984) (NEPA is designed to infuse environmental considerations into government decisionmaking). The Council on Environmental Quality (“CEQ”) guidelines promulgated under NEPA, 40 C.F.R. Part 1502 (1987), state that the primary purpose of an EIS is to serve as an “action-forcing device to insure that the policies and goals” of NEPA are “infused into the ongoing programs and actions of the Federal Government.” Id. § 1502.1. The objective criteria by which this Court will evaluate the Corps’ EIS are discussed extensively in Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 88-89 (2d Cir.1975). That case is strikingly similar to the instant case in that the Callaway decision involved a challenge to an EIS allegedly deficient in its discussion of the types, quantities and cumulative effects of dredged waste disposal projects in the Long Island Sound. There the plaintiff claimed that several projects were pending while the EIS was being prepared by the U.S. Navy and that those projects were sufficiently foreseeable to have been included in the statement. This Court held in Callaway that the EIS failed to meet NEPA’s standard of comprehensive evaluation, citing the CEQ guidelines for preparation of an EIS. Id. at 89. We so hold here. The fundamental flaw in the Corps’ EIS is its too-circumscribed view of the “project” which is the subject of its impact analysis. The Corps conceives of its “project” as the designation of a disposal site. It has rigidly adhered to the position that site designation and permit issuance are two distinct and unrelated actions. It has steadfastly maintained that particularized discussion of types, quantities and cumulative effects of dredged wastes to be deposited at WLIS III is outside the scope of the EIS and must await analysis on a case-by-case basis. We disagree. This is merely a variant of “segmentation” which has been uniformly rejected by courts. “Segmentation” or “piecemealing” occurs when an action is divided into component parts, each involving action with less significant environmental effects. See City of West Chicago v. United States Nuclear Regulatory Comm’n, 701 F.2d 632, 650 (7th Cir.1983). Segmentation is to be avoided in order to “insure that interrelated projects[,] the overall effect of which is environmentally significant, not be frac-tionalized into smaller, less significant actions.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 298 (D.C.Cir.1987). CEQ guidelines provide that proposals should be included in the same EIS if they are “connected,” that is, if they are “closely related” such that they are “interdependent parts of a larger action and depend on the larger action for their justification.” 40 C.F.R. § 1508.25(a)(l)(iii). See Save the YAAK Comm. v. Block, 840 F.2d 714, 719 (9th Cir.1988) (analyzing CEQ guidelines on “connected” projects); Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy, 836 F.2d 760, 763 (2d Cir.1988) (per curiam) (same). The proper test to determine relatedness under 40 C.F.R. § 1508.25(a)(l)(iii) is whether the project has independent utility. Sloop Clearwater, 836 F.2d at 764 (citing Fritiofson v. Alexander, 772 F.2d 1225, 1242 (5th Cir.1985)). The designation of WLIS III clearly has no utility apart from its planned usage as a disposal site. Designation of a site to contain a contemplated load of 646,000 cys of waste material surely was related to the then-pending applications to dump 86,000 cys and the Corps’ own plans to dump the remaining 560,000 cys. It is simply untenable to view site designation as distinct from issuing permits to use the site. We therefore agree with the district court that the Corps violated NEPA by not including a particularized discussion of the types and quantities of sediments to be dumped at WLIS III. Moreover, it is well settled that the cumulative effects of a proposed federal action must be analyzed in an EIS. The Supreme Court in Kleppe v. Sierra Club has stated: when several proposals for ... actions that will have a cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together. 427 U.S. 390, 410, 96 S.Ct. 2718, 2730, 49 L.Ed.2d 576 (1976). The genesis of this requirement is in the CEQ guidelines which provide that an EIS should analyze cumulative impacts when to do so is “the best way to assess adequately the combined impacts of similar actions.” 40 C.F.R. § 1508.25(a)(3). We do not take issue with particular conclusions reached by an agency after it has taken a “hard look” at environmental factors involved. See City of New York v. U.S. Dep’t of Transp., 715 F.2d at 748 (NEPA mandates no particular substantive outcomes). However, it is improper to defer analysis of the types, quantities and cumulative effects of waste dumping when designating a new waste disposal site. Even if the Corps were satisfied with its action, public scrutiny of the basis for the Corps’ decision is “essential to implementing NEPA.” 40 C.F.R. § 1500.1(b). See Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1029 (2d Cir.1983) (EIS must set forth sufficient information for general public to make informed evaluation). We note in particular the comments by agency experts from the Department of Interior Office of Environmental Project Review, the Department of Commerce Office of Marine Pollution Assessment, and the Fish and Wildlife Service which indicated that evaluation of the merits of WLIS III as a dumpsite was made difficult or impossible by the lack of sufficient data in the EIS submitted. For these reasons, we hold that the Corps violated NEPA by not including analysis of the types, quantities and cumulative effects of waste disposal in its EIS. D. Injunctive Relief Injunctive relief is provided under the terms of the Ocean Dumping Act, 33 U.S.C. § 1415(g)(1), and has been used when appropriate for violations of NEPA. See Sierra Club v. United States Army Corps of Engineers, 732 F.2d 253 (2d Cir.1984) and related cases; Natural Resources Defense Council v. Callaway, 524 F.2d at 95. However, injunctive relief does not follow automatically upon a finding of statutory violations, including environmental violations. On the contrary, “[a]n injunction should issue only where the intervention of a court of equity is essential in order effectually to protect property rights against injuries otherwise irremediable.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982) (quoting Cavanaugh v. Looney, 248 U.S. 453, 456, 39 S.Ct. 142, 143, 63 L.Ed. 354 (1919)). Although it may be argued that the proper equitable balancing was implicit in the district court’s opinion, issued the same day as the order granting the injunction, neither the opinion nor the order addressed the appropriateness of an injunction on the facts of this case. Accordingly, we vacate the permanent injunction and remand for the purpose of making such a determination, to be guided by traditional equitable principles. We note that the vacating of the injunction need not lead to immediate resumption of dumping at WLIS III, since an application for interim injunctive relief can be made promptly to the district court. CONCLUSION Site designation procedures for Long Island Sound ought to be consistent with Congress’ intention to afford the Sound “equal or greater protection from polluted dredged spoils [as that afforded to] open ocean waters.” 126 Cong.Rec. H34063 (Dec. 13, 1980) (remarks of Rep. Ambro). In order to achieve this goal, the Corps’ designation of a new open water disposal site in the Sound must be undertaken in accordance with criteria promulgated under the Ocean Dumping Act. The fragile waters of the Sound are entrusted to the safekeeping of the Corps of Engineers. It is the combination of relevant statutory parameters provided by the ocean dumping criteria and faithful adherence to NEPA’s mandate which will insure “excellent decisions” regarding the future of the Sound. Because the Corps did not apply the ocean dumping criteria to its site designation decisions, and because these criteria were omitted from the EIS submitted, the Corps’ action was “not in accordance with law.” 5 U.S.C. § 706(2)(A). The judgment of the district court granting plaintiffs’ motion for summary judgment and denying defendants’ cross-motion for summary judgment is affirmed, the permanent injunction is vacated and the case is remanded to the district court for further proceedings consistent with this opinion.

Drakes Bay Oyster Co. v. Jewell

ORDER The opinion filed on September 3, 2013, appearing at 729 F.3d 967, is hereby amended. An amended opinion is filed concurrently with this order. With these amendments, Judge McKeown voted to deny the petition for rehearing en banc and Judge Marbley so recommends. Judge Watford voted to grant the petition. Amicus Curiae Catherine Rucker’s request for judicial notice in support of her brief opposing the petition for rehearing en banc is DENIED. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether tp rehear the matter en banc. Fed. R.App. P. 36. The petition for rehearing en banc is DENIED. No further petitions for en banc or panel rehearing shall be permitted. OPINION McKEOWN, Circuit Judge: This appeal, which pits an oyster farm, oyster lovers and well-known “foodies” against environmentalists aligned with the federal government, has generated considerable attention in the San Francisco Bay area. Drakes Bay Oyster Company (“Drakes Bay”) challenges the Secretary of the Interior’s discretionary decision to let Drakes Bay’s permit for commercial oyster farming expire according to its terms. The permit, which allowed farming within Point Reyes National Seashore, was set to lapse in November 2012. Drakes Bay requested an extension pursuant to a Congressional enactment that provided, in relevant part, “notwithstanding any other provision of law, the Secretary of the Interior is authorized to issue a special use permit with the same terms and conditions as the existing authorization.” Department of the Interior Appropriations Act, Pub.L. No. 111-88, § 124, 123 Stat. 2904, 2932 (2009) (“Section 124”). After the Secretary declined to extend the permit, Drakes Bay sought a preliminary injunction, arguing that the Secretary’s decision violated the authorization in Section 124, the National. Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and various federal regulations. We have jurisdiction to consider whether the Secretary violated “constitutional, statutory, regulatory or other legal mandates or restrictions,” Ness Inv. Corp. v. U.S. Dep’t of Agr., Forest Serv., 512 F.2d 706, 715 (9th Cir.1975), and we agree with the district court that Drakes Bay is not likely to succeed in proving any such violations here. Through Section 124, Congress authorized, but did not require, the Secretary to extend the permit. Congress left the decision to grant or deny an extension to the Secretary’s discretion, without imposing any mandatory considerations. The Secretary clearly understood he was authorized to issue the permit; he did not misinterpret the scope of his discretion under Section 124. In an effort to inform his decision, the Secretary undertook a NEPA review, although he believed he was not obligated to do so. Nonetheless, any asserted errors in the NEPA review were harmless. Because Congress committed the substance of the Secretary’s decision to his discretion, we cannot review “the making of an informed judgment by the agency.” Id. In letting the permit lapse, the Secretary emphasized the importance of the long-term environmental impact of the decision on Drakes Estero, which is located in an area designated as potential wilderness. He also underscored that, when Drakes Bay purchased the property in 2005, it did so with eyes wide open to the fact that the permit acquired from its predecessor owner was set to expire just seven years later, in 2012. Drakes Bay’s disagreement with the value judgments made by the Secretary is not a legitimate basis on which to set aside the decision. Once we determine, as we have, that the Secretary did not violate any statutory mandate, it is not our province to intercede in his discretionary decision. We, therefore, affirm the district court’s order denying a preliminary injunction. Background I. The Point Reyes National Seashore Congress established the Point Reyes National Seashore (“Point Reyes”) in 1962 “in order to save and preserve, for purposes of public recreation, benefit, and inspiration, a portion of the diminishing seashore of the United States that remains undeveloped.” Act of Sept. 13, 1962, Pub.L. No. 87-657, 76 Stat. 538, 538. The area is located in Marin County, California, and exhibits exceptional biodiversity. Point Reyes is home to Drakes Estero, a series of estuarial bays. The enabling legislation for Point Reyes gave the Secretary of the Interior administrative authority over the area and directed him to acquire lands, waters, and other property and interests within the seashore. Id. at § 3(a), 76 Stat. at 539-40. In 1965, the State of California conveyed to the United States “all of the tide and submerged lands or other lands” within Point Reyes, reserving certain minerals rights to itself and reserving the right to fish to Californians. 1965 Cal. Stat. 2604-2605, § 1-3. In the Point Reyes Wilderness Act of 1976, Congress designated certain areas within the seashore as “wilderness” under the Wilderness Act of 1964. Pub.L. No. 94-544, 90 Stat. 2515. The Wilderness Act “established a National Wilderness Preservation System to be composed of federally owned areas designated by Congress as ‘wilderness areas.’ ” 16 U.S.C. § 1131(a). Such areas are to “be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas [and] the preservation of their wilderness character.” Id. Accordingly, subject to statutory exceptions and existing private rights, the Act provides that “there shall be no commercial enterprise ... within any wilderness area.” 16 U.S.C. § 1133(c). The Point Reyes Wilderness Act designated other areas, including Drakes Este-ro, as “potential wilderness.” Pub.L. No. 94-544, 90 Stat. 2515. Congress considered designating Drakes Estero as “wilderness,” but declined to do so. The legislative history reflects that Congress took into account the Department of the Interi- or’s position that commercial oyster farming operations taking place in Drakes Estero, as well as California’s reserved rights and special use permits relating to the pastoral zone, rendered the area “inconsistent with wilderness” at the time. H.R.Rep. No. 94-1680, at 5-6 (1976), reprinted in 1976 U.S.C.C.A.N. 5593, 5597. Congress specified in separate legislation that the “potential wilderness additions” in Point Reyes “shall ... be designated wilderness” by “publication in the Federal Register of a notice by the Secretary of the Interior that all uses thereon prohibited by the Wilderness Act ... have ceased.” Act of Oct. 20, 1976, Pub.L. No. 94-567, § 3, 90 Stat. 2692. II. DRakes Bay Oyster Company’s Operations Oyster farming has a long history in Drakes Estero, dating to the 1930s. Charles Johnson started the Johnson Oyster Company in Drakes Estero in the 1950s. His oyster farm was in operation on a five-acre parcel of land on the shore of the estero when Congress created the Point Reyes National Seashore. In 1972, Johnson sold his five acres to the United States, electing to retain a forty-year reservation of use and occupancy (“RUO”). The RUO provided that, “[u]pon expiration of the reserved term, a special use permit may be issued for the continued occupancy of the property for the herein described purposes.” (Emphasis added.) It added that, “[a]ny permit for continued use will be issued in accordance with National Park Service [“NPS”] regulations in effect at the time .the reservation expires.” In late 2004, Drakes Bay agreed to purchase the assets of the Johnson Oyster Company. The RUO was transferred along with the purchase. The forty-year RUO ended on November 30, 2012. When it purchased the farm, Drakes Bay was well aware that the reservation would expire in 2012, and received multiple confirmations of this limitation. The acquisition documents specifically referenced “that certain Reservation of Possession Lease dated 10/12/1972, entered into by Seller and the National Park Service.” In January 2005, the National Park Service wrote to Kevin Lunny, an owner of Drakes Bay, highlighting “the issue of the potential wilderness designation.” The Park Service told Lunny that it wanted to make sure he was aware of the Interior Department’s legal position “[b]efore [he] closed escrow on the purchase” of Johnson’s farm. The Park Service accordingly sent Lunny a memorandum from the Department’s Solicitor. Notably, the Solicitor disagreed with the proposition previously expressed in the House Report accompanying the Point Reyes Wilderness Act that California’s retained fishing and mineral rights were inconsistent with wilderness designation. The Solicitor concluded, “the Park Service is mandated by the Wilderness Act, the Point Reyes Wilderness Act and its Management Policies to convert potential wilderness, i.e. the Johnson Oyster Company tract and the adjoining Este-ro, to wilderness status as soon as the non conforming use can be eliminated.” In March 2005, the Park Service reiterated its guidance regarding the Drakes Bay’s purchase of the Johnson property. It specifically informed Lunny, “Regarding the 2012 expiration date and the potential wilderness, based on our legal review, no new permits will be issued after that date.” III. Section 124 and the Secretary’s Decision Several years later, in 2009, Congress addressed the Department of the Interi- or’s authority to issue Drakes Bay a new permit in appropriations legislation. The Senate appropriations committee proposed a provision requiring the Secretary to issue a special use permit for an additional ten years. H.R. 2996, 111th Cong. § 120(a) (as reported in Senate, July 7, 2009) (providing “the Secretary of the Interior shall extend the existing authorization ... ”) (emphasis added). The Senate rejected this mandate, and amended the language to provide that the Secretary “is authorized to issue” the permit, rather than required to do so. 155 Cong. Rec. S9769-03, S9773 (daily ed. Sept. 24, 2009). The law as enacted provides: Prior to the expiration on November 30, 2012 of the Drakes Bay Oyster Company’s Reservation of Use and Occupancy and associated special use permit (“existing authorization”) within Drakes Estero at Point Reyes National Seashore, notwithstanding any other provision of law, the Secretary of the Interior is authorized to issue a special use permit with the same terms and conditions as the existing authorization, except as provided herein, for a period of 10 years from November 30, 2012. Provided, That such extended authorization is subject to annual payments to the United States based on the fair market value of the use of the Federal property for the duration of such renewal. The Secretary shall take into consideration recommendations of the National Academy of Sciences [“NAS”] Report pertaining to shellfish mariculture in Point Reyes National Seashore before modifying any terms and conditions of the extended authorization. Nothing in this section shall be construed to have any application to any location other than Point Reyes National Seashore; nor shall anything in this section be cited as precedent for management of any potential wilderness outside the Seashore. 123 Stat. at 2932. The House Conference Report reflected that the final language “provid[ed] the Secretary discretion to issue a special use permit-” 155 Cong. Rec. H11871-06 (daily ed. October 28, 2009) (emphasis added). The NAS report that Section 124 referenced, “Shellfish Mariculture in Drakes Estero, Point Reyes National Seashore, California,” was prepared in 2009, in light of “the approach of the 2012 expiration date” of the permit, in order “to help clarify the scientific issues raised with regard to the shellfish mariculture activities in Drakes Estero.” The report highlighted that there was “limited scientific literature” available and that there was evidence that oyster farming had both negative and positive effects on the environment. The report explained: “The ultimate decision to permit or prohibit shellfish farming in Drakes Estero necessarily requires value judgments and tradeoffs that can be informed, but not resolved, by science.” Drakes Bay sent letters to the Secretary in July 2010 requesting that he exercise his authority under Section 124 to issue a permit extension. Park Service staff met with Lunny soon after to discuss a draft schedule to complete a NEPA process. The Department, through the Park Service, then formally began to prepare an Environmental Impact Statement (“EIS”) in an effort “to engage the public and evaluate the effects of continuing the commercial operation within the national seashore” and “to inform the decision of whether a new special use permit should be issued.” Drakes Bay Oyster Company Special Use Permit, 75 Fed.Reg. 65,373 (Oct. 22, 2010). The Park Service issued a draft EIS (“DEIS”) for public comment in September 2011. Drakes Bay submitted comments criticizing much of the draft, along with a data quality complaint. Congress expressed “concerns relating to the validity of the science underlying the DEIS” and therefore “directed] the National Academy of Sciences to assess the data, analysis, and conclusions in the DEIS in order to ensure there is a solid scientific foundation for the Final Environmental Impact Statement expected in mid-2012.” H.R. Conf. Rep. No. 112-381, at 1057 (Dec. 15, 2011), reprinted in 2011 U.S.C.C.A.N. 605, 788. The NAS released its report in August 2012. The report noted several instances where the DEIS “lack[ed] assessment of the level of uncertainty associated with the scientific information on which conclusions were based.” But the report concluded that the available research did not admit of certainty: The scientific literature on Drakes Este-ro is not extensive and research on the potential impacts of shellfish mariculture on the Estero is even sparser.... Consequently, for most of the resource categories the committee found that there is a moderate or high level of uncertainty associated with impact assessments in the DEIS. The final EIS, issued on November 20, 2012, responded to the NAS review. The EIS revised the definitions of the intensity of impacts to wildlife and wildlife habitats, clarified the assumptions underlying those conclusions, and added discussion of the uncertainty of scientific data. The Secretary issued his decision on November 29, 2012, directing the Park Service to let the permit expire according to its terms. He explained that his decision was “based on matters of law and policy,” including the “explicit terms of the 1972 conveyance from the Johnson Oyster Company to the United States” and “the policies of NPS concerning commercial use within a unit of the National Park System and nonconforming uses within potential or designated wilderness, as well as specific wilderness legislation for Point Reyes National Seashore.” He recognized that Section 124 “grant[ed] [him] the authority to issue a new SUP,” but elected to effectuate Park Service policies and the principles he discerned in wilderness legislation. In his decision, the Secretary recognized the “scientific uncertainty” and “lack of consensus in the record regarding the precise nature and scope of the impacts that [Drakes Bay’s] operations have” on wilderness and other resources. Generally, he found that the impact statements supported the proposition that letting the permit expire “would result in long-term beneficial impacts to the estero’s natural environment.” But he explained that the draft and final EIS were “not material to the legal and policy factors that provide the central basis” for his decision, though they were “helpful” in that they informed him regarding the “complexities, subtleties, and uncertainties of this matter.” He disclaimed reliance on “the data that was asserted to be flawed,” and noted that his decision was “based on the incompatibility of commercial activities in wilderness.” In accordance with his decision, the Secretary directed the Park Service to publish a notice in the Federal Register announcing the conversion of Drakes Estero from potential to designated wilderness. This litigation followed. Drakes Bay sued the Secretary, seeking a declaratory judgment that his decision violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., an order that the Secretary direct the Park Service to issue a new ten-year permit, and, alternatively, an order vacating and remanding for a new decision. Drakes Bay moved for a preliminary injunction to avoid having to cease its operations pending suit, as it had been given ninety days to remove its property from the estero. The district court determined that it did not have jurisdiction to review the Secretary’s decision because “the statutory context affords complete discretion” and “Section 124 provides the Court with ‘no meaningful standard’ for the Court to apply in reviewing the Decision not to issue a New SUP.” The court went on to provide an alternate rationale for denial: “the Court does not find that Plaintiffs can show a likelihood of success under a Section 706(2) standard [arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under the APA].” Finally, the court held that “[o]n balance, and combining the requirement of both the equities and the public interest more broadly, the Court does not find these elements weigh in favor of granting a preliminary injunction.” Analysis I. Jurisdiction and the Scope of the “Notwithstanding” Clause As a threshold matter, we address jurisdiction. On this point, we disagree in part with the district court. See Oregon Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 979 n. 1 (9th Cir.2006) (reviewing de novo the question of subject matter jurisdiction under the APA). We do have jurisdiction to review whether the Secretary violated any legal mandate contained in Section 124 or elsewhere. However, we agree with the district court that we lack jurisdiction to review the Secretary’s ultimate discretionary decision whether to issue a new permit. The government argues that we lack jurisdiction to review any of Drakes Bay’s claims because, under Section 124, the Secretary’s decision was “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This narrow exception to the presumption of judicial review of agency action under the APA applies “if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); see also Webster v. Doe, 486 U.S. 592, 599, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (characterizing the exception as for circumstances where there is “no law to apply”) (internal quotation marks and citation omitted). But even where the substance or result of a decision is committed fully to an agency’s discretion, “a federal court has jurisdiction to review agency action for abuse of discretion when the alleged abuse of discretion involves violation by the agency of constitutional, statutory, regulatory or other legal mandates or restrictions.” Ness Inv. Corp., 512 F.2d at 715. In such circumstances, a federal court lacks only jurisdiction to review an alleged abuse of discretion regarding “the making of an informed judgment by the agency.” Id. Here, as in Ness Inv. Corp., “[t]he secretary is ‘authorized,’ not required, to issue” a permit, and there are “no statutory restrictions or definitions prescribing precise qualifications” for issuance. Id. Consequently we may review only whether the Secretary followed whatever legal restrictions applied to his decision-making process. The parties agree that the Ness framework applies, but disagree on whether any “mandates or restrictions,” id., exist. Drakes Bay interprets Section 124, NEPA, and various federal regulations as imposing legal restrictions on the Secretary, but it contends that these requirements apply only to a decision to deny an extension, not to a decision granting an extension. The Secretary contends that the “notwithstanding” clause of Section 124 sweeps away any statutes and regulations that might otherwise apply to a permit application. Neither side has it quite right. As a general matter, “notwithstanding” clauses nullify conflicting provisions of law. See United States v. Novak, 476 F.3d 1041, 1046 (9th Cir.2007) (en banc) (“The Supreme Court has indicated as a general proposition that statutory ‘notwithstanding’ clauses broadly sweep aside potentially conflicting laws.”). Before Congress passed Section 124, the Department’s Solicitor had issued a series of opinions holding that the Wilderness Act, the Point Reyes Wilderness Act, and Park Service management policies legally prohibited any extension of the permit. Section 124’s “notwithstanding” clause trumps any law that purports to prohibit or preclude the Secretary from extending the permit, as such a law would “conflict” with Section 124’s authorization. Thus we may review whether the Secretary misunderstood his authority to issue a permit and the closely related question of whether he mistakenly interpreted other statutory provisions as placing a legal restriction on his authority. As the government itself acknowledges, if Section 124 provides restrictions on the Secretary’s exercise of discretion, then we have jurisdiction to review compliance with those limits. The Secretary’s decision is also subject to applicable procedural constraints. “[Wjhen two statutes are capable of co-existence, it is the duty of the courts ... to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). Thus, we have jurisdiction to consider the applicability of NEPA and other procedures that do not conflict with the authorization in Section 124. Procedural constraints that do not conflict with the authorization would apply to the Secretary’s decision regardless of whether he granted or denied the permit. We reject Drakes Bay’s anomalous position that the Secretary had “unfettered authority to issue the permit,” while his “discretion to deny [Drakes Bay] a [permit] [was] bounded by NEPA and other applicable law.” Drakes Bay points to the fact that Section 124 says that “notwithstanding any other provision of law, the Secretary of the Interior is authorized to issue a special use permit,” rather than that he is authorized to “issue or deny” one. From that language, Drakes Bay extrapolates that Section 124 “was enacted to make it easy to issue the permit.” The statute does not dictate such a one-way ratchet. Indeed, if Congress- had so wanted to make it easy or automatic for Drakes Bay, one wonders why it rejected the proposal that would have simply required the Secretary to issue a new permit. The ultimate legislation was a move away from, not toward, Drakes Bay’s favored result. A natural reading of the authorization to issue a permit implies authorization not to issue one, and we see no reason to interpret the “notwithstanding” clause as applying to one outcome but not the other. See Confederated Salish and Kootenai Tribes v. United States, 343 F.3d 1193, 1196-97 (9th Cir.2003) (interpreting the word “authorized” to mean both the power to grant or deny a request for the Secretary to take land in trust for a tribe). Section 124 was enacted as part of appropriations legislation, granting the Secretary authority to act, without providing any statement of Congress’s view on that decision one way or the other. Drakes Bay’s effort to read into this short appropriations provision a preference for issuance of the permit is unavailing, as is the dissent’s attempt to do so based on legislative history from decades earlier. The dissent misunderstands the significance of the legislative history of the Point Reyes Wilderness Act of 1976, which focuses on the notion that Congress at that time viewed oyster farming as desirable and consistent with wilderness designation. The dissent stacks legislative history from one enactment to another, over decades, when Section 124 itself does not make the link. “Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature’s understanding of otherwise ambiguous terms.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (emphasis added). Regardless of the accuracy of the dissent’s recitation of the legislative history of the 1976 Act, the dissent’s citation to congressional statements in support of designating Drakes Estero as wilderness in 1976 do not reliably reflect that the Congress that enacted Section 124 was of the dissent’s view that Drakes Bay’s operations were “not an ‘obstacle’ to converting Drakes Estero to wilderness status.” Dissent at 1097. The dissent’s position would rewrite the clause to something like “notwithstanding the Department’s policy view that oyster farming can be incompatible with wilderness designation.” The dissent cites nothing from the text, or even the legislative history, of Section 121 to support this interpretation. Even Drakes Bay did not argue this position or urge us to go this far afield. Here, where Section 124 merely grants authority to take an action, the “notwithstanding” clause targets laws that “potentially conflict[ ]” with that authority. Novak, 476 F.3d at 1046. Given the Department’s opinions in 2005 that wilderness legislation prevented any exercise of authority to extend the permit, the notwithstanding clause has a clear function — to convey that prior legislation should not be deemed a legal barrier. The dissent confuses actual or potential legal impediments to the Secretary’s authority with policy considerations that might lead the Department not to extend Drakes Bay’s permit. Section 124 does not prescribe considerations on which the Secretary may or may not rely, it says nothing about the criteria for wilderness designation and says nothing about whether oyster farming is consistent with wilderness designation. As the Supreme Court has admonished, “courts have no authority to enforce a principle gleaned solely from legislative history that has no statutory reference point.” Shannon v. United States, 512 U.S. 573, 584, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994) (internal quotation marks and 'alteration omitted). Had Congress wanted to express a view on whether the Secretary should consider the Department’s policies on wilderness or other criteria, it would have said so. It did not, but rather gave the Secretary the discretion to decide. We now turn to consideration óf the Secretary’s decision. II. Preliminary Injunction Not Warranted In seeking a preliminary injunction, Drakes Bay must establish “that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). We have held that a “likelihood” of success per.se is not .an absolute requirement. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir.2011). Rather, “ ‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id. at 1132. We review for abuse of discretion the district court’s determination that Drakes Bay did not meet its burden under this test. FTC v. Enforma Natural Products, Inc., 362 F.3d 1204, 1211-12 (9th Cir.2004). Drakes Bay contends that the Secretary misinterpreted his authority under Section 124 in that he mistakenly believed that granting a permit extension would violate other laws, that he failed to comply with NEPA, and that he failed to comply with federal rulemaking procedures. According to Drakes Bay, these errors render the Secretary’s decision “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Here, the likelihood of success on the merits of these claims is too remote to justify the extraordinary remedy of a preliminary injunction. In light of our conclusion about the merits, we address only in passing the remaining preliminary injunction factors. A. Likelihood of Success on the MerITS 1. The Import of Section 124 The Secretary’s decision did not violate any statutory mandate, particularly the provision that gave him discretion to grant the permit despite any prior conflicting law. The key portion of Section 124 provides as follows: “Prior to the expiration on November 30, 2012 of the Drakes Bay Oyster Company’s Reservation of Use and Occupancy and associated special use permit (“existing authorization”) within Drakes Estero at Point Reyes National Seashore, notwithstanding any other provision of law, the Secretary of the Interior is authorized to issue a special use permit. ...” Section 124 put the Secretary on notice that he was not hamstrung by other law should he determine a permit extension was appropriate. The section left him free to consider wilderness values and the competing interests underlying a commercial operation in an area set aside as a natural seashore. .The narrow question that we have jurisdiction to review is whether the Secretary misinterpreted his authority under Section 124. The record leaves no doubt that the answer is no. As the Secretary explained, “SEC. 124 grants me the authority and discretion to issue [Drakes Bay] a new special use permit, but it does not direct me to do so.” The Secretary repeated this understanding multiple times throughout the decision, noting, for example, that Section 124 “does not dictate a result or constrain my discretion in this matter,” and that it “grants me the authority to issue a new SUP.” Drakes Bay’s view that the Secretary violated Section 124 rests on a misinterpretation of that provision and a misapprehension of the Secretary’s reasoning. Drakes Bay first argues that the statute was intended to “make it easy” to issue the permit. As we explained above, this approach is ■wishful thinking, since the statute says nothing of the kind. Indeed, Congress first considered whether to mandate issuance of the permit but backed off that approach and ultimately left the decision to the Secretary’s discretion. In the end, Congress did nothing more than let the Secretary know his hands were not tied. Drakes Bay next argues that the Secretary erroneously concluded that extending the permit would “violate” applicable wilderness legislation. According to Drakes Bay, because Section 124 authorized the Secretary to extend the permit “notwithstanding any other provision of law,” the Secretary was “prohibit[ed] ... from relying on a violation of other law as a reason to justify a permit denial.” Drakes Bay’s reading of the decision is not tenable. Taken as a whole, the decision reflects that the Secretary explicitly recognized that extending the permit would be lawful and that he was not legally constrained by other laws. . The Secretary elected to let the permit expire not to avoid “violating” any law, as Drakes Bay posits, but because the Secretary weighed and balanced competing concerns about the environment and the value of aquaculture. He chose to give weight to the 'policies underlying wilderness legislation, taking into account consideration of environmental impacts: “In addition to considering the [Drafted Environmental Impact Statement and Final Environmental Impact Statement], I gave great weight to- matters of public policy, particularly the public policy inherent in the 1976 act of Congress that identified Drakes Estero as potential wilderness.” (Emphasis added). Drakes Bay seizes on a single sentence in a summary of reasons as evidence that the Secretary thought extending the permit would “violate ... specific wilderness legislation.” At the beginning of the decision, the summary includes one ■ sentence that, read in isolation, raises an ambiguity: “The continuation of the [Drakes Bay] operation would violate the policies of NPS concerning commercial use within a unit of the National Park System and nonconforming uses within potential or designated wilderness, as well as specific wilderness legislation for Point Reyes National Seashore.” (Emphasis added). However, reading the sentence in context of the full decision, it is obvious the Secretary did not erroneously consider himself bound by any provision of wilderness legislation. In reviewing the agency’s decision, we must uphold even “a decision of less than ideal clarity” so long as “the agency’s path may reasonably be discerned.” FCC v. Fox Television Stations, 556 U.S. 502, 513-14, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (internal quotation marks omitted). The Secretary’s reliance on policy considerations and Congressional intent is evident throughout the decision. Recounting the factual and legal background, for example, the Secretary cited the House of Representatives committee report accompanying the Point Reyes Wilderness Act, which stated: As is well established, it is the intention that those lands and waters designated as potential wilderness additions will be essentially managed as wilderness, to the extent possible, with efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status. H.R.Rep. No. 94-1680 at 3, 1976 U.S.C.C.A.N. 5593 at 5595. The Secretary returned to this committee report in his conclusion, explaining that: My decision honors Congress’s direction to “steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status” and thus ensures that these precious resources are preserved for the enjoyment of future generations of the American public, for whom Point Reyes National Seashore was created. As expressed in his decision, his choice was consistent with the draft and final environmental impact statements that “support the proposition that the removal of [Drakes Bay’s] commercial operations in the estero would result in long-term beneficial impacts to .the estero’s natural environment.” Drakes Bay suggests that referencing even the Congressional “intent” or policies underlying the Point Reyes Wilderness Act runs afoul of Section 124. But as Drakes Bay itself acknowledges, the “most natural, common-sense reading” of the notwithstanding clause is “notwithstanding any law that would otherwise legally preclude issuance of a [special use permit], the Secretary has the authority to issue a SUP.” It is abundantly clear that the Secretary recognized his authority under Section 124 and did not believe he was legally bound by any statute to deny the permit. But the policy that underlies the 1976 Act and other wilderness legislation is just that — an expression of public policy. These expressions neither “legally preclude” nor legally mandate extension, and they are not “other provision[s] of law” that are swept aside by Section 124’s “notwithstanding” clause. Statements in committee reports do not carry the force of law. See Lincoln v. Vigil, 508 U.S. 182, 192-93, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993). “Congress’s ‘authoritative statement is the statutory text, not the legislative history.’ ” Chamber of Commerce of U.S. v. Whiting, — U.S.-, 131 S.Ct. 1968, 1980, 179 L.Ed.2d 1031 (2011) (quoting Exxon Mobil, 545 U.S. at 568, 125 S.Ct. 2611). The Secretary’s incorporation of the policies underlying wilderness legislation, and of Congressional intent as expressed in the House committee report, was a matter of his discretion. The Secretary noted correctly that “SEC. 124 ... does not prescribe the factors on which I must base my decision.” Section 124 “provides the court no way to second-guess the weight or priority to be assigned” to these factors. Ctr. for Auto Safety v. Dole, 846 F.2d 1532, 1535 (D.C.Cir.1988) (concluding that agency decision to deny petition for enforcement was not renewable where the governing regulations provided no standards to enable judicial review). The choice was the Secretary’s to make. 2. Drakes Bay’s Other Statutory Arguments As Section 124 affords no basis for us to review the substance of the Secretary’s decision, we have no measuring stick against which to judge Drakes Bay’s various claims that the Secretary’s policy determination was mistaken. To the extent the Secretary’s decision can be evaluated against the statutory requirements cited by Drakes Bay, Drakes Bay is unlikely to prevail in showing the decision was arbitrary and capricious, an abuse of discretion, or in violation of any law. Drakes Bay argues that the Secretary violated the law by directing that Drakes Estero be designated as wilderness, because such a designation was not possible under the Wilderness Act in light of California’s retained mineral and fishing rights. Although the Department of the Interior adopted this view in the past, the Department has since deemed that position inaccurate. The Wilderness Act itself nowhere provides that retained mineral or fishing rights preclude wilderness designation. Drakes Bay is not likely to succeed on its theory that the Secretary’s current position — that the permit’s expiration enables wilderness designation despite retained mineral and fishing rights — amounted to “legal error.” Drakes Bay also believes that wilderness designation was improper in light of the “historic farming community” that remains on Drakes Estero. However, a 1978 amendment to the legislation establishing Point Reyes specifically authorizes the Park Service to lease property used for “agricultural, ranching, or dairying purposes.” Act of Nov. 10, 1978, Pub.L. No. 95-625, § 318, 92 Stat. 3467, 3487. The Secretary’s decision considered these uses a “compatible activity” within a wilderness area. Drakes Bay has not demonstrated how such a determination violates any restriction on the Secretary’s authority. On a related note, Drakes Bay charges that, in recounting the statutory history, the Secretary erred in stating that the 1978 amendment did not permit him to issue leases for mariculture. Drakes Bay’s effort to shoehorn itself into an “agricultural purpose” is unavailing. Congress limited the Secretary’s leasing authority to “lands” in Section 318(b) of the 1978 Act, rather than to the “lands, waters, and submerged lands” described in Section 318(a) of the same statute. Id. It is reasonable to assume this distinction is meaningful and reasonable for the Secretary to state that the Act did not authorize mariculture leases. Even if the Secretary misinterpreted this earlier law, he plainly understood that Section 124 did authorize him to issue Drakes Bay a permit for mariculture. In sum, the Secretary neither violated any statutory mandate nor did he misapprehend his authority under the various statutes raised by Drakes Bay. 3. Compliance with NEPA We next address the applicability of NEPA to the Secretary’s decision. Under NEPA, an agency is required to prepare an environmental impact statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The government urges that its decision to let Drakes Bay’s permit expire is not a “major Federal action[],” but rather is inaction that does not implicate NEPA. Drakes Bay responds that the term “major Federal actions” includes failures to act, 40 C.F.R. § 1508.18, and that NEPA applies to decisions concerning whether to issue a permit. Here, the Secretary’s decision to let Drakes Bay’s permit expire according to its terms effectively “denied” Drakes Bay a permit. We have held that “if a federal permit is a prerequisite for a project with adverse impact on the environment, issuance of that permit does constitute major federal, action.” Ramsey v. Kantor, 96 F.3d 434, 444 (9th Cir.1996) (emphasis added). But we have never held failure to grant a permit to the same standard, and for good reason. If agencies were required to produce an EIS every time they denied someone a license, the system would grind to a halt. Our case law makes clear that not every denial of a request to act is a “major Federal action.” We have held, for example, that no EIS was required when the federal government denied a request to exercise its regulatory authority to stop a state’s program killing wildlife. State of Alaska v. Andrus, 591 F.2d 537, 541 (9th Cir.1979). Drakes Bay suggested at oral argument that the Secretary’s decision differs from typical inaction because it effected a change in the status quo, namely, the cessation of commercial operations that had previously been authorized. We are skeptical that the decision to allow the permit to expire after forty years, and thus to move toward designating Drakes Estero as wilderness, is a major action “significantly affecting the quality of the human environment” to which NEPA applies. 42 U.S.C. § 4332(2)(C). “The purpose of NEPA is to ‘provide a mechanism to enhance or improve the environment and prevent further irreparable damage.’ ” Douglas County v. Babbitt, 48 F.3d 1495, 1505 (9th Cir.1995) (quoting Pacific Legal Foundation v. Andrus, 657 F.2d 829, 837 (6th Cir.1981)). The Secretary’s decision is essentially an environmental conservation effort, which has not triggered NEPA in the past. For example, in Douglas County, we held NEPA did not apply to critical habitat designation under the Endangered Species Act (“ESA”) because it was “an action that prevented] human interference with the environment” and' “because the ESA furthers the goals of NEPA without demanding an EIS;” Id. at 1505, 1506 (emphasis added). Because removing the oyster farm is a step toward restoring the “natural, untouched physical environment” and would prevent subsequent human interference in Drakes Estero, id. at 1505, the reasoning of Douglas County is persuasive here. The Secretary’s decision to allow the permit to expire, just like the designation under the ESA, “protects the environment from exactly the kind of human impacts that- NEPA is designed to foreclose.” Id. at 1507. Drakes Bay also argued that removal of the oyster farm implicates NEPA because it has “adverse environmental consequences.” Although the final EIS did note that removal might cause certain short-term harms, such as noise associated with heavy machinery needed to remove Drakes Bay’s structures, such relatively minor harms do not by themselves “significantly affeet[ ]” the environment in such a way as to implicate NEPA. 42 U.S.C. § 4332(2)(C). We are '“reluctant :.. to make NEPA more of an obstructionist tactic to prevent' environmental protection than it may already have become.” Douglas County, 48 F.3d at 1508 (internal quotation marks omitted). Ultimately, we need not resolve whether NEPA compliance was required because, even if it was, the Secretary conducted an adequate NEPA review process and any claimed deficiencies are without consequence. The government produced a lengthy EIS, which the Secretary considered and found “helpful.” Although the Secretary acknowledges that compliance with NEPA was less than perfect, Drakes Bay is unlikely to succeed in showing that the errors were prejudicial. Relief is available under the APA only for “prejudicial error.” 5 U.S.C. § 706; see also Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (“In administrative law, as in federal civil and criminal litigation, there is a harmless error rule.”) (internal quotation marks and citation omitted). Drakes Bay points to “technical” violations, specifically, the Secretary’s failure to publish the EIS more than thirty days before he made his decision and the Secretary’s framing the extension denial in the form of a Decision Memorandum rather than a Record of Decision. Drakes Bay has shown no prejudice from these claimed violations. See Nat’l Forest Pres. Grp. v. Butz, 485 F.2d 408, 412 (9th Cir.1973) (declining to reverse where NEPA timing and EIS requirements were not strictly followed but the agency “did consider environmental factors” and the “sterile exercise” of forcing agency to reconsider “would serve no useful purpose”); see also City of Sausalito v. O’Neill, 386 F.3d 1186, 1220 (9th Cir.2004) (declining to reverse based on violation of deadline for ESA biological assessment where no harm was shown). Drakes Bay puts considerable stock in its claims that the final EIS was based on flawed science and that the absence of the thirty-day comment period denied it an opportunity to fully air its critique, specifically with regard to conclusions regarding the “soundscape” of the estero. Nothing in the record suggests that Drakes Bay was prejudiced by any shortcomings in the final soundscape data. Drakes Bay sent the Secretary its scientific critique before he issued his decision. The Secretary specifically referenced that communication and stated that he did not rely on the “data that was asserted to be flawed.” The Secretary was well aware of the controversies on the specific topics that Drakes Bay criticizes and his statement was unambiguous that they did not carry weight in his decision. Drakes Bay’s suggestion that the Secretary could not have made the informed decision that NEPA requires without resolving all controversies about the data is unsound. NEPA requires only that an EIS “contain! ] a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Seattle Audubon Soc. v. Espy, 998 F.2d 699, 703 (9th Cir.1993) (internal quotation marks and citation omitted). Drakes Bay is not likely to succeed in showing that the final EIS was inadequate, even assuming NEPA compliance was required. 4. Federal Register Notice In light of the determination to let the permit expire, the Secretary directed the National Park Service to “publish in the Federal Register the notice announcing the conversion of Drakes Estero from potential to designated wilderness.” Drakes Bay argues that the subsequently published notice was false because Drakes Bay’s continued commercial activities (under the 90-day period the decision allowed to wrap up operations) and California’s retained fishing and mineral rights precluded wilderness status. Drakes Bay also argues that the notice was issued in violation of formal rulemaking regulations. Drakes Bay lacks standing to challenge the publication of the notice. Its claimed injury arises from the Secretary’s decision to let its permit expire, not the designation in the notice. Drakes Bay cannot continue its operations without a permit, regardless of how the estero is designated. We disagree with Drakes Bay’s position that it has standing because “it will be necessary to vacate the unlawful notice in order for [Drakes Bay’s] injuries to be ultimately redressed.” Because Drakes Bay is not injured by the notice, it may not challenge the notice’s purported falsity or the Secretary’s compliance with rulemaking procedures. B. Weighing the Equities Drakes Bay is not entitled to a preliminary injunction not only because it failed to raise a serious question about the Secretary’s decision, but also because it has not shown that the balance of equities weighs in its favor. Alliance for the Wild Rockies, 632 F.3d at 1132. The district court found that, although Drakes Bay satisfied the irreparable harm prong of the preliminary injunction analysis, neither the public interest nor the equities were in its favor. When the government is a party, these last two factors merge. Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). Our review of the court’s findings is for abuse of discretion, and we see none here. The district court reasonably found that the public interest does not weigh in favor of injunctive relief. The public benefits both from the enjoyment of protected wilderness and of local oysters, and the court found no basis upon which to weigh these respective values. This factor does not tip to Drakes Bay. Recognizing that Drakes Bay bears the burden in its quest for a preliminary injunction, the court’s consideration of other equitable factors was also reasonable. Drakes Bay purchased the oyster farm with full disclosure, knowing that the reservation of use and occupancy was set to expire in 2012. The Department repeatedly warned the company that it did not plan to issue a new permit. Although the prospect of closing down a business is a serious hardship, the only reasonable expectation Drakes Bay could have had at the outset was that such a closure was very likely, if not certain. Closure remained a distinct possibility even after the passage of Section 124. Drakes Bay argued to the district court that it had “every reason to hope” for extension. But when parties “ ‘anticipate[ ] a pro forma result’ in permitting applications, they become ‘largely responsible for their own harm.’ ” Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978, 997 (8th Cir.2011) (quoting Davis v. Mineta, 302 F.3d 1104, 1116 (10th Cir.2002)). We see no reason to disturb the court’s finding that the company’s “refusal to hear the message” was an equitable factor weighing against it. Affirmed. . The panel appreciates the amicus briefing filed by supporters of both sides. Alice Waters, Tómales Bay Oyster Company, Hayes Street Grill, the California Farm Bureau Federation, the Marin County Farm Bureau, the Sonoma County Farm Bureau, Food Democracy Now, Marin Organic, and the Alliance For Local Sustainable Agriculture filed an amici curiae brief in support of Drakes Bay. The Environmental Action Committee of West Marin, National Parks Conservation Association, Natural Resources Defense Council, Save Our Seashore, and the Coalition of National Park Service Retirees filed an amici curiae brief in support of the federal parties. . In the final EIS, the Department stated that Section 124 did not require compliance with NEPA because that provision gave the Secretary authorization to make the permit decision “notwithstanding any other provision of law.” Nevertheless, the Department “determined that it is helpful to generally follow the procedures of NEPA.” The Secretary reiterated this position in his decision. . Drakes Bay’s data quality complaint is not before us in this appeal. . A motions panel granted Drakes Bay's emergency motion for an injunction pending appeal "because there are serious legal questions and the balance of hardships tips sharply in appellants' favor.” With the benefit of full briefing and argument, we need not defer to the motion panel’s necessarily expedited decision. United States v. Houser, 804 F.2d 565, 568 (9th Cir.1986). . The dissent's conclusion that "[cjontinued operation of the oyster farm is fully consistent with the Wilderness Act,” Dissent at 1097, is particularly puzzling given that Drakes Bay itself argued that wilderness designation of Drakes Estero was not possible while the oyster farm's commercial activities continued. Moreover, there are a variety of Park Service management criteria that inform the question of what kinds of activities are "consistent” with wilderness designation under the Wilderness Act. The dissent's reliance on decades-old legislative pronouncements about the Johnson oyster farm for the proposition that Section 124 was intended to foreclose the Secretary from considering his department’s own policies with regard to Drakes Bay stretches even the most liberal use of legislative history to the breaking point. "[U]ne-nacted approvals, beliefs, and desires are not laws.” Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 501, 108 S.Ct. 1350, 99 L.Ed.2d 582 (1988). . This function is meaningful regardless of whether conflicting laws actually prevented the Secretary from issuing a permit, a question the dissent would answer in the negative, Dissent at 1097, but which we simply have no occasion to pass on here. The Department's legal position raised a "potential [] conflict!],” Novak, 476 F.3d at 1046 (emphasis added), regarding the Department’s authority, and the "notwithstanding clause” made clear that "other provisions of law” were not an impediment. . Indeed, the only consideration that Congress addressed in Section 124 was that "[t]he Secretary shall take into consideration recommendations of the National Academy of Sciences Report pertaining to shellfish mari-culture in Point Reyes National Seashore before modifying any terms and conditions of the extended authorization.” (Emphasis added.) As modification of the permit is not at issue here, this provision is not relevant. . The dissent's position that the agency “relied on factors which Congress has not intended it to consider,” Dissent at 1098, is not supported by the record. Under the deferential arbitrary and capricious standard, we uphold agency action for which a rational explanation is given, particularly where the agency "acted within the sphere of its expertise.” McFarland v. Kempthorne, 545 F.3d 1106, 1113 (9th Cir.2008). The Secretary’s decision relied in general on "Congress’s direction” to remove "obstacles” to wilderness designation. While the Wilderness Act bans commercial enterprise within wilderness areas "subject to existing private rights,” 16 U.S.C. § 1133(c), Park Service policies inform whether wilderness designation is appropriate in the first instance. Contrary to the dissent's characterization, the 1976 legislation did not invoke a crystal ball and pass judgment on the compatibility of oyster farming in Drakes Estero with wilderness some thirty plus years later when the reservation of use would expire. Indeed, things change. The Secretary, drawing on the agency expertise amassed in the decades since the 1970s, concluded that continued oyster farming was inconsistent with wilderness criteria and the Department’s policies. The Secretary’s decision that removing the farm would further Congress's earlier expressed goal of moving toward wilderness designation was rational and within his authority under Section 124. . Notably, the State of California takes the position that its retained rights, including the state constitutional right to fish, do not cover aquaculture. The California Department of Fish and Game criticized and rejected "brief, general, and conclusory” communications it made decades earlier that suggested the oyster farm was covered by the "right to fish” reservation. At present, the state has issued water bottom leases to Drakes Bay for its commercial operations, but has made clear that the use of those leases past 2012 "is expressly contingent upon [Drakes Bay’s] compliance with the 1972 grant reservation and, after its expiration, with any special use permit” that the federal government "may issue in its discretion.” . Drakes Bay argues that we cannot consider the government's inaction argument because the Secretary did not rely on that position in his decision. We disagree. "The rationale behind the Chenery I Court’s refusal to accept belated justifications for agency action not previously asserted during the agency’s own proceedings does not apply in this case. Chenery I was premised on the policy that courts should not substitute their judgment for that of the agency when reviewing a ‘determination of policy or judgment which the agency alone is authorized to make and which it has not made.’ ” Louis v. U.S. Dep’t of Labor, 419 F.3d 970, 977-78 (9th Cir.2005) (quoting SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943)) (emphasis added). The "policy or judgment" call here was the Secretary’s substantive decision whether to grant the permit. We are not constrained in considering arguments concerning the applicability of NEPA. . Drakes Bay noted at oral argument that we have recognized a circuit split on the question of "whether significant beneficial effects alone would trigger an EIS” and concluded in dicta that requiring an EIS in those circumstances was "consistent with the weight of circuit authority and has the virtue of reflecting the plain language of the statute.” Humane Society of U.S. v. Locke, 626 F.3d 1040, 1056 n. 9 (9th Cir.2010) (citing cases) (emphasis added). The authority cited is not persuasive here, however, because none of those cases addressed environmental conservation efforts. The cases instead dealt with major federal construction projects to which NEPA applied in order to evaluate the positive effects asserted. See Sierra Club v. Froehlke, 816 F.2d 205, 211 n. 3 (5th Cir.1987) (major federal water project of Army Corps of Engineers); Nat’l Wildlife Fed'n v. Marsh, 721 F.2d 767, 783 (11th Cir.1983) (construction of man-made lake); Envtl. Def. Fund v. Marsh, 651 F.2d 983, 993 (5th Cir.1981) (major navigational project); see also Natural Res. Def. Council, Inc. v. Herrington, 768 F.2d 1355, 1431 (D.C.Cir.1985) (addressing energy-efficiency standards for household appliances and noting in dicta that "both beneficial and adverse effects on the environment can be significant within the meaning of NEPA”). . Drakes Bay had submitted previous criticisms about the soundscape analysis, and related impacts on harbor seals, in its data quality complaint regarding the draft EIS. Although Drakes Bay did not raise the issue in its briefs, at oral argument it objected that the Secretary did not adequately respond to expert comments to the DEIS. In general, “on appeal, arguments not raised by a party in its opening brief are deemed waived.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999). Regardless, we conclude the response to the DEIS was adequate. The Congressionally-mandated NAS report that criticized elements of the DEIS, including on these subjects, was brought to the Secretary’s attention. The NAS report emphasized that the scientific literature on Drakes Estero was simply “not extensive” and that research on the impact of oyster farming was "even sparser.” The takeaway was that impact assessments for the soundscape and harbor seals were "considered to have a high level of uncertainty.” The final EIS responded to the NAS critique and also addressed the scientific disputes. In particular, it added "a discussion on the strength of the underlying scientific data” to address the NAS's concerns about scientific uncertainty. . To the extent that Drakes Bay argues that the Secretary's decision was somehow tainted by the instruction that the Park Service publish the notice, the challenge still fails because the instruction was in accordance with the law. The notice was not false because, as we explained above, Drakes Estero could be designated "wilderness” despite California's reserved rights. Nor is the presence of temporary non-wilderness conditions an obstacle because Park Service policy permits a wilderness designation when "wilderness character could be ... restored through appropriate management actions.” In addition, although general regulations require rulemaking for certain use terminations, 36 C.F.R. § 1.5(b), the more specific section of 1976 legislation provided that conversion to wilderness would be automatic "upon publication in the Federal Register of a notice by the Secretary of the Interior that all uses thereon prohibited by the Wilderness Act ... have ceased.” 90 Stat. 2692.

Drakes Bay Oyster Co. v. Jewell

WATFORD, Circuit Judge, dissenting: The majority states that, by enacting § 124, “Congress did nothing more than let the Secretary know his hands were not tied.” Maj. op. at 1086. I think Congress, by including the “notwithstanding” clause in § 124, intended to do more than that. In particular, it sought to override the Department of the Interior’s misinterpretation of the Point Reyes Wilderness Act, Pub.L. No. 94-544, 90 Stat. 2515 (1976). The Department had concluded, in 2005, that the Act barred issuance of a special use permit authorizing continued operation of Drakes Bay Oyster Company’s oyster farm. The Department thought Congress had “mandated” that result by designating Drakes Estero, where the oyster farm is located, as a “potential wilderness addition” in the Point Reyes Wilderness Act. The Act’s legislative history makes clear, however, that by divining such a mandate, the Department simply misinterpreted the Act’s provisions and misconstrued Congress’s intent. The Department’s misinterpretation of the Point Reyes Wilderness Act prompted Congress to enact § 124 in 2009. In my view, by including a notwithstanding clause in § 124, Congress attempted to supersede the Department’s erroneous interpretation of the Act. In the 2012 decision challenged here, the Secretary nonetheless denied Drakes Bay’s permit request based primarily on the very same misinterpretation of the Point Reyes Wilderness Act that Congress thought it had overridden. As a result, I think Drakes Bay is likely to prevail on its claim that the Secretary’s decision is arbitrary, capricious, or otherwise not in accordance with law. See 5 U.S.C. § 706(2)(A). Because the other preliminary injunction factors also weigh in Drakes Bay’s favor, injunctive relief preserving the status quo should have been granted here. I To explain why I think the Interior Department (and later the Secretary) misinterpreted the Point Reyes Wilderness Act, a fairly detailed discussion of the Act’s legislative history is necessary. The events leading up to passage of the Point Reyes Wilderness Act begin in 1962, when Congress authorized creation of the Point Reyes National Seashore and appropriated funds for land acquisition within the Seashore’s designated boundaries. Act of Sept. 13, 1962, Pub.L. No. 87-657, 76 Stat. 538 (1962). As part of that process, in 1965, the State of California conveyed ownership of the submerged lands and coastal tidelands within the Seashore’s boundaries to the federal government. See Act of July 9, 1965, ch. 983, § 1, 1965 Cal. Stat. 2604, 2604. Those lands included Drakes Estero. The conveyance reserved certain mineral and fishing rights, which allowed the State to “prospect for, mine, and remove [mineral] deposits from the lands,” and “reserved to the people of the state the right to fish in the waters underlying the lands.” Id. §§ 2-3, 1965 Cal. Stat. at 2605. At the time of the State’s conveyance, oyster farming was already a well-established fixture in Drakes Estero, with roots dating back to the 1930s. In 1973, the President recommended that Congress preserve 10,600 acres within the Point Reyes National Seashore as “wilderness,” under the terms of the Wilderness Act of 1964, Pub.L. No. 88-577, § 3(c), 78 Stat. 890, 892 (1964). Members of California’s congressional delegation found that recommendation woefully inadequate, and soon thereafter introduced identical bills in the House and Senate designating far larger areas of the Seashore as wilderness. In the House, Congressman John Burton introduced H.R. 8002, 94th Cong. (1975); in the Senate, Senator John Tunney introduced S. 2472, 94th Cong. (1975). H.R. 8002 is the bill that eventually became the Point Reyes Wilderness Act. As originally proposed, H.R. 8002 and S. 2472 would have designated more than thirty-eight thousand acres as wilderness. Included within that designation was Drakes Estero, as well as most of the other submerged lands and coastal tidelands conveyed by California in 1965. The sponsors of H.R. 8002 and S. 2472 were well aware of the oyster farm in Drakes Estero. They nonetheless included Drakes Estero within the wilderness designation because they did not view the farm’s operations as incompatible with the area’s wilderness status. Commenting on the Senate bill, Senator Tunney left no doubt on that score, declaring, “Established private rights of landowners and leaseholders will continue to be respected and protected. The existing agricultural and aquacultural uses can continue.” Wilderness Additions — National Park System: Hearings Before the Subcomm. on Parks and Recreation of the S. Comm, on Interior and Insular Affairs, 94th Cong. 271 (1976) [hereinafter Senate Hearing ]. During hearings on H.R. 8002 and S. 2472, various civic, environmental, and conservation groups supported Drakes Este-ro’s designation as wilderness. They explained in detail why neither the State’s reserved mineral and fishing rights nor the oyster farm precluded such a designation. No one advocating Drakes Estero’s designation as wilderness suggested that the oyster farm needed to be removed before the area could become wilderness. See id. at 324-33, 344-61; H.R. 7198, H.R. 8002, et al., To Designate Certain Lands in the Point Reyes National Seashore, California as Wilderness: Hearing Before Sub-comm. on Nat’l Parks and Recreation of the H. Comm, on Interior and Insular Affairs, 94th Cong. (1976) [hereinafter House Hearing ], prepared statements of Jim Eaton, William J. Duddleson, Ms. Raye-Page, and Frank C. Boerger. The comments Congress received from those who were advocating Drakes Este-ro’s designation as wilderness stressed a common theme: that the oyster farm was a beneficial preexisting use that should be allowed to continue notwithstanding the area’s designation as wilderness. For example, a representative from the Wilderness Society stated: ‘Within Drakes Este-ro the oyster culture activity, which is under lease, has a minimal environmental and visual intrusion. Its continuation is permissible as a pre-existing non-conforming use and is not a deterrent for inclusion of the federally owned submerged lands of the Estero in wilderness.” House Hearing, prepared statement of Ms. Raye-Page, at 6. The Chairman of the Golden Gate National Recreation Area Citizens’ Advisory Commission noted that the oyster-farming operations “presently carried on within the seashore existed prior to its establishment as a park and have since been considered desirable by both the public and park managers.” Senate Hearing, at 361. He therefore recommended that specific provision be made to allow such operations “to continue unrestrained by wilderness designation.” Id. Others observed, echoing the comments of Senator Tunney, that the proposed House and Senate bills already provided for that. See House Hearing, prepared statement of William J. Duddleson, at 3-4 (“H.R. 8002 would allow continued use and operation of Johnson’s Oyster Company at Drakes Estero, as a pre-existing non-conforming use.”); Senate Hearing, at 357 (“S. 2472 would allow the continued use and operation of Johnson’s Oyster Company in Drakes Estero.”). A local state assemblyman succinctly summed it up this way: “Finally, I believe everyone concerned supports the continued operation of oyster farming in Drakes Estero as a non-conforming use.” Senate Hearing, at 356. The view expressed by these speakers— that continued operation of the oyster farm was fully compatible with Drakes Estero’s designation as wilderness — was not some wild-eyed notion. It was firmly grounded in the text of the Wilderness Act itself. The Act generally bans commercial enterprise within wilderness areas, but does so “subject to existing private rights.” 16 U.S.C. § 1133(c). Drakes Bay’s predecessor, the Johnson Oyster Company, had existing private rights in the form of water-bottom leases issued by California that pre-dated both the passage of the Wilderness Act and creation of the Point Reyes National Seashore. The Act also generally prohibits the use of motorboats within wilderness areas, see id, but the Secretary of Agriculture may permit continued use of motorboats when, as here, such use has “already become established.” Id § 1133(d)(1). To the extent there is any ambiguity in these provisions, the Act’s legislative history makes clear that Congress believed the new wilderness-preservation system would not affect the economic arrangements of business enterprises “because existing private rights and established uses are permitted to continue.” S.Rep. No. 88-109, at 2 (1963). The only party opposed to designating Drakes Estero as wilderness was the Department of the Interior. At first, the Department took the position that none of the submerged lands and coastal tidelands conveyed by California in 1965 could be designated as wilderness, because the State’s reserved mineral and fishing rights were “inconsistent with wilderness.” House Hearing, letter from John Kyi, Assistant Secretary of the Interior, at 3. When the Department’s view came under attack by those who argued that the State’s reserved rights were not in any way inconsistent with wilderness, see, e.g., Senate Hearing, at 327-28, the Department backpedaled. It proposed placing most of the lands subject to the State’s reserved rights into a new legislative classification — “potential wilderness addition” — which it had developed in connection with similar wilderness proposals. See House Hearing, at 11-12; id, letter from John Kyi, Assistant Secretary of the Interior, at 1. That designation was intended to encompass “lands which are essentially of wilderness character, but retain sufficient nonconforming structures, activities, uses or private rights so as to preclude immediate wilderness classification.” S.Rep. No. 94-1357, at 3 (1976). Four areas subject to the State’s reserved rights were at issue: the coastal tidelands, Limantour Estero, Abbotts Lagoon, and Drakes Estero. The original version of H.R. 8002 designated all four areas as wilderness, not just potential wilderness additions. But in the spirit of compromise, Congressman Burton, the sponsor of H.R. 8002, agreed to amend the bill by designating those areas as potential wilderness additions, rather than as wilderness. See House Hearing, prepared statement of Rep. John Burton, at 2. In doing so, he made clear that all four areas were being designated as potential wilderness additions due to California’s reserved mineral and fishing rights. See id. He noted that, “[a]s ‘potential wilderness,’ these areas would be designated as wilderness effective when the State ceeds [sic] these rights to the United States.” Id. (emphasis added). As so amended, H.R. 8002 was enacted as the Point Reyes Wilderness Act in 1976. Fast forward now to 2005. Shortly before Drakes Bay’s purchase of the oyster farm closed, the Park Service reiterated its view that, based on a legal analysis performed by the Interior Department, no new permits authorizing oyster farming in Drakes Estero could be issued. The Department’s legal analysis concluded — bizarrely, given the legislative history recounted above — that by designating Drakes Estero as a potential wilderness addition in the Point Reyes Wilderness Act, Congress had “mandated” elimination of the oyster farm. The Department never identified anything in the text of the Act to support that view; it cited only a passage from the House Report accompanying H.R. 8002. But that passage “is in no way anchored in the text of the statute,” Shannon v. United States, 512 U.S. 573, 583-84, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994), and thus provides no support for the Department’s interpretation of the Act. Even taken on its own terms, however, the passage from the House Report does not support the Department’s interpretation. The passage states in full: “As is well established, it is the intention that those lands and waters designated as potential wilderness additions will be essentially managed as wilderness, to the extent possible, with efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status.” H.R.Rep. No. 94-1680, at 3 (1976), 1976 U.S.C.C.A.N. 5593 at 5595 (emphasis added). But the oyster farm was not an “obstacle” to Drakes Estero’s conversion to wilderness status, and no one in Congress ever expressed that view. To the contrary, as discussed above, all indications are that Congress viewed the oyster farm as a beneficial, preexisting use whose continuation was fully compatible with wilderness status. II With that background in mind, we can now turn to the legal issue at the heart of this appeal, which is how to construe § 124. Everyone appears to agree that the Park Service’s conclusion in 2005 that it was legally prohibited from granting Drakes Bay a special use permit prompted Congress to enact § 124. If all Congress had wanted to do was “let the Secretary know his hands were not tied,” as the majority asserts, § 124 could simply have stated, as it does, that “the Secretary of the Interior is authorized to issue a special use permit....” Act of Oct. 30, 2009, Pub.L. No. 111-88, § 124, 123 Stat. 2904, 2932. But Congress went further and added a notwithstanding clause, so that the statute as enacted reads, “notwithstanding any other provision of law, the Secretary of the Interior is authorized to issue a special use permit_” Id. (emphasis added). Our task is to determine what effect Congress intended the notwithstanding clause to have. Given the historical backdrop against which § 124 was enacted, I think Congress intended the clause to override the Interi- or Department’s misinterpretation of the Point Reyes Wilderness Act. Reading the clause in that fashion is consistent with the way courts have typically construed notwithstanding clauses. The Supreme Court has held that the use of such a clause “clearly signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section.” Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993). And we have said that the basic function of such clauses is to “sweep aside” and “supersede” any potentially conflicting laws. United States v. Novak, 476 F.3d 1041, 1046 (9th Cir.2007) (en banc); Student Loan Fund of Idaho, Inc. v. U.S. Dep’t of Educ., 272 F.3d 1155, 1166 (9th Cir.2001). A notwithstanding clause often targets those laws that were the “legal sticking point” for the action Congress intends to authorize. Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of Eng’rs, 619 F.3d 1289, 1301 n. 19 (11th Cir.2010). In this case, no conflicting laws actually prevented the Secretary from issuing a permit to Drakes Bay. Continued operation of the oyster farm is fully consistent with the Wilderness Act, and the farm’s existence is therefore not an “obstacle” to converting Drakes Estero to wilderness status as directed by the Point Reyes Wilderness Act. Instead, it was the Interior Department’s misinterpretation of the Point Reyes Wilderness Act that proved to be the “legal sticking point” here. I think the best reading of the notwithstanding clause is that Congress meant to “override” (“sweep aside,” “supersede”) that misinterpretation of the law when it enacted § 124. Alpine Ridge Grp., 508 U.S. at 18, 113 S.Ct. 1898; Novak, 476 F.3d at 1046; Student Loan Fund, 272 F.3d at 1166. If you accept what I have said so far, only two questions remain. The first is whether Congress, having overridden the Department’s misinterpretation of the Point Reyes Wilderness Act, nonetheless authorized the Secretary to rely on that misinterpretation as a basis for denying Drakes Bay a permit. I cannot see any reason why we would construe § 124 in that fashion. Under the Administrative Procedure Act (APA), if an agency bases its decision on a legally erroneous interpretation of the controlling statute, its decision will be deemed arbitrary, capricious, or otherwise not in accordance with law. See Safe Air for Everyone v. EPA, 488 F.3d 1088, 1091, 1101 (9th Cir.2007) (involving an erroneous interpretation of a state implementation plan that had the force and effect of federal law). Thus, even without the notwithstanding clause, it would make no sense to assume that Congress authorized the Secretary to base his decision on a misinterpretation of the Point Reyes Wilderness Act. With the clause, adopting any such construction of § 124 would be entirely indefensible. The second (and admittedly closer) question is whether the Secretary in fact based his decision on the misinterpretation of the Act that Congress intended to override by enacting § 124. The majority suggests that the Secretary based his decision instead on the Interior Department’s own policies, see Maj. op. at 1084-85 & n.5, 1088 n. 8, but I do not think the Secretary’s written decision denying the permit supports that view. The Secretary’s decision states that he gave “great weight” to what he called “the public policy inherent in the 1976 act of Congress that identified Drakes Estero as potential wilderness.” The Secretary read that Act as expressing Congress’s intention that all “obstacles” to converting Drakes Estero to wilderness status should be removed. But he erroneously deemed the oyster farm to be such an obstacle (“DBOC’s commercial operations are the only use preventing the conversion of Drakes Este-ro to designated wilderness”), because he erroneously assumed that the oyster farm’s continued operation was “prohibited by the Wilderness Act.” That in turn led him to conclude — again erroneously— that his decision to eliminate the oyster farm “effectuate[d]” Congress’s intent as expressed in the Point Reyes Wilderness Act. These are precisely the same errors of statutory interpretation the Interior Department made back in 2005. They are precisely the same errors that prompted Congress to enact § 124 in the first place. And, in my view, they are precisely the same errors Congress attempted to supersede by inserting the notwithstanding clause. Contrary to the majority’s assertion, the Secretary had no authority to rely on this misinterpretation of “Congress’s earlier expressed goal” because the notwithstanding clause eliminated any such authority. See Maj. op. at 1088 n. 8. What does the majority offer in response to this analysis? Some hand waving, to be sure, but nothing of any substance. Most tellingly, the majority never attempts to argue that the Interior Department’s interpretation of the Point Reyes Wilderness Act was correct. Nor could it make that argument with a straight face given the Act’s clear legislative history, which the majority never attempts to address, much less refute. The majority thus has no explanation for Congress’s inclusion of the notwithstanding clause in § 124 other than the one I have offered: that it was included to override the Department’s misinterpretation of the Point Reyes Wilderness Act. The majority claims that the clause “has a clear function — to convey that prior legislation should not be deemed a legal barrier” to permit issuance. See Maj. op. at 1084-85. But that reading of the clause supports my position because the Secretary did treat “prior legislation” — namely, the Point Reyes Wilderness Act — as a “legal barrier” to permit issuance. As I have argued, that is exactly what the notwithstanding clause was intended to prohibit. The majority also claims that I have not accorded the Secretary’s decision the deference it is owed under the arbitrary and capricious standard, which requires us to give due regard to an agency’s exercise of discretion within its sphere of expertise. See Maj. op. at 1088 n. 8. But I am not arguing here that the Secretary’s decision must be set aside because it reflects faulty weighing of permissible policy factors. We would have no authority to second guess a decision of that order. What I am saying, instead, is that § 124’s notwithstanding clause precluded the Secretary from basing his decision on the very misinterpretation of the Point Reyes Wilderness Act that Congress intended to override. A decision will normally be deemed arbitrary and capricious if an agency “has relied on factors which Congress has not intended it to consider.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). That, unfortunately, is just what the Secretary did. In short, I would hold that Drakes Bay is likely to prevail on the merits of its APA claim. The Secretary’s misinterpretation of the Point Reyes Wilderness Act, and his mistaken view that denying the permit request effectuated Congress’s intent, were “fundamental” to his decision, rendering the decision “arbitrary, capricious, or otherwise not in accordance with law.” Safe Air for Everyone, 488 F.3d at 1101 (internal quotation marks omitted). Ill Like the majority, I will not spend much time addressing the remaining preliminary injunction factors — irreparable harm, balance of the equities, and the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Considered together, those factors tip in Drakes Bay’s favor. Drakes Bay will suffer irreparable injury to its business and real-property rights if a preliminary injunction is erroneously denied. See, e.g., Sundance Land Corp. v. Cmty. First Fed. Sav. & Loan Ass’n, 840 F.2d 658, 661 (9th Cir.1988); Am. Passage Media Corp. v. Cass Commc’ns, Inc., 750 F.2d 1470, 1474 (9th Cir.1985). The loss of “an ongoing business representing many years of effort and the livelihood of its [owners] constitutes irreparable harm.” Roso-Lino Beverage Distribs., Inc. v. Coca-Cola Bottling Co., 749 F.2d 124, 125-26 (2d Cir.1984) (per curiam). The balance of equities favors Drakes Bay. The majority concludes otherwise by noting that Drakes Bay knew when it acquired the oyster farm that its permit would expire in 2012. Maj. op. at 1092-93. But that is not the relevant consideration. Rather, the controlling consideration is that the harm Drakes Bay will suffer from the erroneous denial of a preliminary injunction far outweighs .the harm the government will suffer from an erroneous grant of such relief. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1137-38 (9th Cir.2011); Scotts Co. v. United Indus. Corp., 315 F.3d 264, 284 (4th Cir.2002); Am. Hosp. Supply Corp. v. Hosp. Prods. Ltd., 780 F.2d 589, 593 (7th Cir.1986); Roso-Lino, 749 F.2d at 126. The government will suffer only modest harm if oyster farming’s eighty-year history in the Estero continues a bit longer. But if a preliminary injunction is erroneously denied, Drakes Bay’s business will be destroyed. That is all Drakes Bay must show to demonstrate that the balance of equities tips in its favor here. Finally, the public interest favors neither side. As the district court observed, federal judges are ill equipped to weigh the adverse environmental consequences of denying a preliminary injunction against the consequences of granting such relief, or the relative interests in access to Drakes Bay’s oysters as opposed to unencumbered wilderness. It is the equities that carry the day in this ease, see Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (when the United States is a party, equities and the public interest merge), and the equities strongly favor Drakes Bay.

Drakes Bay Oyster Co. v. Jewell

OPINION McKEOWN, Circuit Judge: This appeal, which pits an oyster farm, oyster lovers and well-known “foodies” against environmentalists aligned with the federal government, has generated considerable attention in the San Francisco Bay area. Drakes Bay Oyster Company (“Drakes Bay”) challenges the Secretary of the Interior’s discretionary decision to let Drakes Bay’s permit for commercial oyster farming expire according to its terms. The permit, which allowed farming within Point Reyes National Seashore, was set to lapse in November 2012. Drakes Bay requested an extension pursuant to a Congressional enactment that provided, in relevant part, “notwithstanding any other provision of law, the Secretary of the Interior is authorized to issue a special use permit with the same terms and conditions as the existing authorization.” Department of the Interior Appropriations Act, Pub. L. No. 111-88, § 124, 123 Stat. 2904, 2932 (2009) (“Section 124”). After the Secretary declined to extend the permit, Drakes Bay sought a preliminary injunction, arguing that the Secretary’s decision violated the authorization in Section 124, the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and various federal regulations. We have jurisdiction to consider whether the Secretary violated “constitutional, statutory, regulatory or other legal mandates or restrictions,” Ness Inv. Corp. v. U.S. Dep’t of Agr., Forest Serv., 512 F.2d 706, 715 (9th Cir.1975), and we agree with the district court that Drakes Bay is not likely to succeed in proving any such violations here. Through Section 124, Congress authorized, but did not require, the Secretary to extend the permit. Congress left the decision to grant or deny an extension to the Secretary’s discretion, without imposing any mandatory considerations. The Secretary clearly understood he was authorized to issue the permit; he did not misinterpret the scope of his discretion under Section 124. In an effort to inform his decision, the Secretary undertook a NEPA review, although he believed he was not obligated to do so. Nonetheless, any asserted errors in the NEPA review were harmless. Because Congress committed the substance of the Secretary’s decision to his discretion, we cannot review “the making of an informed judgment by the agency.” Id. In letting the permit lapse, the Secretary emphasized the importance of the long-term environmental impact of the decision on Drakes Estero, which is located in an area designated as potential wilderness. He also underscored that, when Drakes Bay purchased the property in 2005, it did so with eyes wide open to the fact that the permit acquired from its predecessor owner was set to expire just seven years later, in 2012. Drakes Bay’s disagreement with the value judgments made by the Secretary is not a legitimate basis on which to set aside the decision. Once we determine, as we have, that the Secretary did not violate any statutory mandate, it is not our province to intercede in his discretionary decision. We, therefore, affirm the district court’s order denying a preliminary injunction. Background I. The Point Reyes National Seashore Congress established the Point Reyes National Seashore (“Point Reyes”) in 1962 “in order to save and preserve, for purposes of public recreation, benefit, and inspiration, a portion of the diminishing seashore of the United States that remains undeveloped.” Act of Sept. 13, 1962, Pub.L. No. 87-657, 76 Stat. 538, 538. The area is located in Marin County, California, and exhibits exceptional biodiversity. Point Reyes is home to Drakes Estero, a series of estuarial bays. The enabling legislation for Point Reyes gave the Secretary of the Interior administrative authority over the area and directed him to acquire lands, waters, and other property and interests within the seashore. Id. at § 3(a), 76 Stat. at 539-40. In 1965, the State of California conveyed to the United States “all of the tide and submerged lands or other lands” within Point Reyes, reserving certain minerals rights to itself and reserving the right to fish to Californians. 1965 Cal. Stat. 2604-2605, § 1-3. In the Point Reyes Wilderness Act of 1976, Congress designated certain areas within the seashore as “wilderness” under the Wilderness Act of 1964. Pub.L. No. 94-544, 90 Stat. 2515. The Wilderness Act “established a National Wilderness Preservation System to be composed of federally owned areas designated by Congress as ‘wilderness areas.’ ” 16 U.S.C. § 1131(a). Such areas are to “be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas [and] the preservation of their wilderness character.” Id. Accordingly, subject to statutory exceptions and existing private rights, the Act provides that “there shall be no commercial enterprise ... within any wilderness area.” 16 U.S.C. § 1133(c). The Point Reyes Wilderness Act designated other areas, including Drakes Este-ro, as “potential wilderness.” Pub.L. No. 94-544, 90 Stat. 2515. Congress considered designating Drakes Estero as “wilderness,” but declined to do so. The legislative history reflects that Congress took into account the Department of the Interi- or’s position that commercial oyster farming operations taking place, in Drakes Estero, as well as California’s reserved rights and special use permits relating to the pastoral zone, rendered the area “inconsistent with wilderness” at the time. H.R.Rep. No. 94-1680, at 5-6 (1976), reprinted in 1976 U.S.C.C.A.N. 5593, 5597. Congress specified in separate legislation that the “potential wilderness additions” in Point Reyes “shall ... be designated wilderness” by “publication in the Federal Register of a notice by the Secretary of the Interior that all uses thereon prohibited by the Wilderness Act ... have ceased.” Act of Oct. 20, 1976, Pub.L. No. 94-567, § 3, 90 Stat. 2692. II. Drakes Bay Oyster Company’s Operations Oyster farming has a long history in Drakes Estero, dating to the 1930s. Charles Johnson started the Johnson Oyster Company in Drakes Estero in the 1950s. His oyster farm was in operation on a five-acre parcel of land on the shore of the estero when Congress created the Point Reyes National Seashore. In 1972, Johnson sold his five acres to the United States, electing to retain a forty-year reservation of use and occupancy (“RUO”). The RUO provided that, “[u]pon expiration of the reserved term, a special use permit may be issued for the continued occupancy of the property for the herein described purposes.” (Emphasis added.) It added that, “[a]ny permit for continued use will be issued in accordance with National Park Service [“NPS”] regulations in effect at the time the reservation expires.” In late 2004, Drakes Bay agreed to purchase the assets of the Johnson Oyster Company. The RUO was transferred along with the purchase. The forty-year RUO ended on November 30, 2012. When it purchased the' farm, Drakes Bay was well aware that the reservation would expire in 2012, and received multiple confirmations of this limitation. The acquisition documents specifically referenced “that certain Reservation of Possession Lease dated 10/12/1972, entered into by Seller and the National Park Service.” In January 2005, the National Park Service wrote to Kevin Lunny, an owner of Drakes Bay, highlighting “the issue of the potential wilderness designation.” The Park Service told Lunny that it wanted to make sure he was aware of the Interior Department’s legal position “[bjefore [he] closed escrow on the purchase” of Johnson’s farm. The Park Service accordingly sent Lunny a memorandum from the Department’s Solicitor. Notably, the Solicitor disagreed with the proposition previously expressed in the House Report accompanying the Point Reyes Wilderness Act that California’s retained fishing and mineral rights were inconsistent with wilderness designation. The Solicitor concluded, “the Park Service is mandated by the Wilderness Act, the Point Reyes Wilderness Act and its Management Policies to convert potential wilderness, i.e. the Johnson Oyster Company tract and the adjoining Este-ro, to wilderness status as soon as the non conforming use can be eliminated.” In March 2005, the Park Service reiterated its guidance regarding the Drakes Bay’s purchase of the Johnson property. It specifically informed Lunny, “Regarding the 2012 expiration date and the potential wilderness, based on our legal review, no new permits will be issued after that date.” III. Section 124 and the Secretary’s Decision Several years later, in 2009, Congress addressed the Department of the Interi- or’s authority to issue Drakes Bay a new permit in appropriations legislation. The Senate appropriations committee proposed a provision requiring the Secretary to issue a special use permit for an additional ten years. H.R. 2996, 111th Cong. § 120(a) (as reported in Senate, July 7, 2009) (providing “the Secretary of the Interior shall extend the existing authorization ... ”) (emphasis added). The Senate rejected this mandate, and amended the language to provide that the Secretary “is authorized to issue” the permit, rather than required to do so. 155 Cong. Rec. S9769-03, S9773 (daily ed. Sept. 24, 2009). The law as enacted provides: Prior to the expiration on November 30, 2012 of the Drakes Bay Oyster Company’s Reservation of Use and Occupancy and associated special use permit (“existing authorization”) within Drakes Estero at Point Reyes National Seashore, notwithstanding any other provision of law, the Secretary of the Interior is authorized to issue a special use permit with the same terms and conditions as the existing authorization, except as provided herein, for a period of 10 years from November 30, 2012. Provided, That such extended authorization is subject to annual payments to the United States based on the fair market value of the use of the Federal property for the duration of such renewal. The Secretary shall take into consideration recommendations of the National Academy of Sciences [“NAS”] Report pertaining to shellfish mariculture in Point Reyes National Seashore before modifying any terms and conditions of the extended authorization. Nothing in this section shall be construed to have any application to any location other than Point Reyes National Seashore; nor shall anything in this section be cited as precedent for management of any potential wilderness outside the Seashore. 123 Stat. at 2932. The House Conference Report reflected that the final language “provid[ed] the Secretary discretion to issue a special use permit....” 155 Cong. Rec. HI1871-06 (daily ed. October 28, 2009) (emphasis added). The NAS report that Section 124 referenced, “Shellfish Mariculture in Drakes Estero, Point Reyes National Seashore, California,” was prepared in 2009, in light of “the approach of the 2012 expiration date” of the permit, in order “to help clarify the scientific issues raised with regard to the shellfish mariculture activities in Drakes Estero.” The report highlighted that there was “limited scientific literature” available and that there was evidence that oyster farming had both negative and positive effects on the environment. The report explained: “The ultimate decision to permit or prohibit shellfish farming in Drakes Estero necessarily requires value judgments and tradeoffs that can be informed, but not resolved, by science.” Drakes Bay sent letters to the Secretary in July 2010 requesting that he exercise his authority under Section 124 to issue a permit extension. Park Service staff met with Lunny soon after to discuss a draft schedule to complete a NEPA process. The Department, through the Park Service, then formally began to prepare an Environmental Impact Statement (“EIS”) in an effort “to engage the public and evaluate the effects of continuing the commercial operation within the national seashore” and “to inform the decision of whether a new special use permit should be issued.” Drakes Bay Oyster Company Special Use Permit, 75 Fed.Reg. 65,373 (Oct. 22, 2010). The Park Service issued a draft EIS (“DEIS”) for public comment in September 2011. Drakes Bay submitted comments criticizing much of the draft, along with a data quality complaint. Congress expressed “concerns relating to the validity of the science underlying the DEIS” and therefore “direct[ed] the National Academy of Sciences to assess the data, analysis, and conclusions in the DEIS in order to ensure there is a solid scientific foundation for the Final Environmental Impact Statement expected in mid-2012.” H.R. Conf. Rep. No. 112-331, at 1057 (Dec. 15, 2011), reprinted in 2011 U.S.C.C.A.N. 605, 788. The NAS released its report in August 2012. The report noted several instances where the DEIS “lack[ed] assessment of the level of uncertainty associated with the scientific information on which conclusions were based.” But the report concluded that the available research did not admit of certainty: The scientific literature on Drakes Este-ro is not extensive and research on the potential impacts of shellfish mariculture on the Estero is even sparser .... Consequently, for most of the resource categories the committee found that there is a moderate or high level of uncertainty associated with impact assessments in the DEIS. The final EIS, issued on November 20, 2012, responded to the NAS review. The EIS revised the definitions of the intensity of impacts to wildlife and wildlife habitats, clarified the assumptions underlying those conclusions, and added discussion of the uncertainty of scientific data. The Secretary issued his decision on November 29, 2012, directing the Park Service to let the permit expire according to its terms. He explained that his decision was “based on matters of law and policy,” including the “explicit terms of the 1972 conveyance from the Johnson Oyster Company to the United States” and “the policies of NPS concerning commercial use within a unit of the National Park System and nonconforming uses within potential or designated wilderness, as well as specific wilderness legislation for Point Reyes National Seashore.” He recognized that Section 124 “grant[ed] [him] the authority to issue a new SUP,” but elected to effectuate Park Service policies and the principles he discerned in wilderness legislation. In his decision, the Secretary recognized the “scientific uncertainty” and “lack of consensus in the record regarding the precise nature and scope of the impacts that [Drakes Bay’s] operations have” on wilderness and other resources. Generally, he found that the impact statements supported the proposition that letting the permit expire “would result in long-term beneficial impacts to the estero’s natural environment.” But he explained that the draft and final EIS were “not material to the legal and policy factors that provide the central basis” for his decision, though they were “helpful” in that they informed him regarding the “complexities, subtleties, and uncertainties of this matter.” He disclaimed reliance on “the data that was asserted to be flawed,” and noted that his decision was “based on the incompatibility of commercial activities in wilderness.” In accordance with his decision, the Secretary directed the Park Service to publish a notice in the Federal Register announcing the conversion of Drakes Estero from potential to designated wilderness. This litigation followed. Drakes Bay sued the Secretary, seeking a declaratory judgment that his decision violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., an order that the Secretary direct the Park Service to issue a new ten-year permit, and, alternatively, an order vacating and remanding for a new decision. Drakes Bay moved for a preliminary injunction to avoid having to cease its operations pending suit, as it had been given ninety days to remove its property from the estero. The district court determined that it did not have jurisdiction to review the Secretary’s decision because “the statutory context affords complete discretion” and “Section 124 provides the Court with ‘no meaningful standard’ for the Court to apply in reviewing the Decision not to issue a New SUP.” The court went on to provide an alternate rationale for denial: “the Court does not find that Plaintiffs can show a likelihood of success under a Section 706(2) standard [arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under the APA].” Finally, the court held that “[o]n balance, and combining the requirement of both the equities and the public interest more broadly, the Court does not find these elements weigh in favor of granting a preliminary injunction.” Analysis I. Jurisdiction and the Scope of the “Notwithstanding” Clause As a threshold matter, we address jurisdiction. On this point, we disagree in part with the district court. See Oregon Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 979 n. 1 (9th Cir.2006) (reviewing de novo the question of subject matter jurisdiction under the APA). We do have jurisdiction to review whether the Secretary violated any legal mandate contained in Section 124 or elsewhere. However, we agree with the district court that we lack jurisdiction to review the Secretary’s ultimate discretionary decision whether to issue a new permit. The government argues that we lack jurisdiction to review any of Drakes Bay’s claims because, under Section 124, the Secretary’s decision was “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This narrow exception to the presumption of judicial review of agency action under the APA applies “if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); see also Webster v. Doe, 486 U.S. 592, 599, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (characterizing the exception as for circumstances where there is “no law to apply”) (internal quotation marks and citation omitted). But even where the substance or result of a decision is committed fully to an agency’s discretion, “a federal court has jurisdiction to review agency action for abuse of discretion when the alleged abuse of discretion involves violation by the agency of constitutional, statutory, regulatory or other legal mandates or restrictions.” Ness Inv. Corp., 512 F.2d at 715. In such circumstances, a federal court lacks only jurisdiction to review an alleged abuse of discretion regarding “the making of an informed judgment by the agency.” Id. Here, as in Ness Inv. Corp., “[t]he secretary is ‘authorized,’ not required, to issue” a permit, and there are “no statutory restrictions or definitions prescribing precise qualifications” for issuance. Id. Consequently we may review only whether the Secretary followed whatever legal restrictions applied to his decision-making process. The parties agree that the Ness framework applies, but disagree on whether any “mandates or restrictions,” id., exist. Drakes Bay interprets Section 124, NEPA, and various federal regulations as imposing legal restrictions on the Secretary, but it contends that these requirements apply only to a decision to deny an extension, not to a decision granting an extension. The Secretary contends that the “notwithstanding” clause of Section 124 sweeps away any statutes and regulations that might otherwise apply to a permit application. Neither side has it quite right. As a general matter, “notwithstanding” clauses nullify conflicting provisions of law. See United States v. Novak, 476 F.3d 1041, 1046 (9th Cir.2007) (en banc) (“The Supreme Court has indicated as a general proposition that statutory ‘notwithstanding’ clauses broadly sweep aside potentially conflicting laws.”). Before Congress passed Section 124, the Department’s Solicitor had issued a series of opinions holding that the Wilderness Act, the Point Reyes Wilderness Act, and Park Service management policies legally prohibited any extension of the permit. Section 124’s “notwithstanding” clause trumps any law that purports to prohibit or preclude the Secretary from extending the permit, as such a law would “conflict” with Section 124’s authorization. Thus we may review whether the Secretary misunderstood his authority to issue a permit and the closely related question of whether he mistakenly interpreted other statutory provisions as placing a legal restriction on his authority. As the government itself acknowledges, if Section 124 provides restrictions on the Secretary’s exercise of discretion, then we have jurisdiction to review compliance with those limits. The Secretary’s decision is also subject to applicable procedural constraints. “[WJhen two statutes are capable of co-existence, it is the duty of the courts ... to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). Thus, we have jurisdiction to consider the applicability of NEPA and other procedures that do not conflict with the authorization in Section 124. Procedural constraints that do not conflict with the authorization would apply to the Secretary’s decision regardless of whether he granted or denied the permit. We reject Drakes Bay’s anomalous position that the Secretary had “unfettered authority to issue the permit,” while his “discretion to deny [Drakes Bay] a [permit] [was] bounded by NEPA and other applicable law.” Drakes Bay points to the fact that Section 124 says that “notwithstanding any other provision of law, the Secretary of the Interior is authorized to issue a special use permit,” rather than that he is authorized to “issue or deny” one. From that language, Drakes Bay extrapolates that Section 124 “was enacted to make it easy to issue the permit.” The statute does not dictate such a one-way ratchet. Indeed, if Congress had so wanted to make it easy or automatic for Drakes Bay, one wonders why it rejected the proposal that would have simply required the Secretary to issue a new permit. The ultimate legislation was a move away from, not toward, Drakes Bay’s favored result. A natural reading of the authorization to issue a permit implies authorization not to issue one, and we see no reason to interpret the “notwithstanding” clause as applying to one outcome but not the other. See Confederated Salish and Kootenai Tribes v. United States, 343 F.3d 1193, 1196-97 (9th Cir.2003) (interpreting the word “authorized” to mean both the power to grant or deny a request for the Secretary to take land in trust for a tribe). Section 124 was enacted as part of appropriations legislation, granting the Secretary authority to act, without providing any statement of Congress’s view on that decision one way or the other. Drakes Bay’s effort to read into this short appropriations provision a preference for issuance of the permit is unavailing, as is the dissent’s attempt to do so based on legislative history from decades earlier. The dissent misunderstands the significance of the legislative history of the Point Reyes Wilderness Act of 1976, which focuses on the notion that Congress at that time viewed oyster farming as desirable and consistent with wilderness designation. The dissent stacks legislative history from one enactment to another, over decades, when Section 124 itself does not make the link. “Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature’s understanding of otherwise ambiguous terms.” Exxon Mo-bit Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (emphasis added). Regardless of the accuracy of the dissent’s recitation of the legislative history of the 1976 Act, the dissent’s citation to congressional statements in support of designating Drakes Estero as wilderness in 1976 do not reliably reflect that the Congress that enacted Section 124 was of the dissent’s view that Drakes Bay’s operations were “not an ‘obstacle’ to converting Drakes Estero to wilderness status.” Dissent at 990-91. The dissent’s position would rewrite the clause to something like “notwithstanding the Department’s policy view that oyster farming can be incompatible with wilderness designation.” The dissent cites nothing from the text, or even the legislative history, of Section 121 to support this interpretation. Even Drakes Bay did not argue this position or urge us to go this far afield. Here, where Section 124 merely grants authority to take an action, the “notwithstanding” clause targets laws that “potentially conflict! ]” with that authority. Novak, 476 F.3d at 1046. Given the Department’s opinions in 2005 that wilderness legislation prevented any exercise of authority to extend the permit, the notwithstanding clause has a clear function—to convey that prior legislation should not be deemed a legal barrier. The dissent confuses actual or potential legal impediments to the Secretary’s authority with policy considerations that might lead the Department not to extend Drakes Bay’s permit. Section 124 does not prescribe considerations on which the Secretary may or may not rely, it says nothing about the criteria for wilderness designation and says nothing about whether oyster farming is consistent with wilderness designation. As the Supreme Court has admonished, “courts have no authority to enforce a principle gleaned solely from legislative history that has no statutory reference point.” Shannon v. United States, 512 U.S. 573, 584, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994) (internal quotation marks and alteration omitted). Had Congress wanted to express a view on whether the Secretary should consider the Department’s policies on wilderness or other criteria, it would have said so. It did not, but rather gave the Secretary the discretion to decide. We now turn to consideration of the Secretary’s decision. II. Preliminary Injunction Not Warranted In seeking a preliminary injunction, Drakes Bay must establish “that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). We have held that a “likelihood” of success per se is not an absolute requirement. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir.2011). Rather, “ ‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id. at 1132. We review for abuse of discretion the district court’s determination that Drakes Bay did not meet its burden under this test. FTC v. Enforma Natural Products, Inc., 362 F.3d 1204, 1211-12 (9th Cir.2004). Drakes Bay contends that the Secretary misinterpreted his authority under Section 124 in that he mistakenly believed that granting a permit extension would violate other laws, that he failed to comply with NEPA, and that he failed to comply with federal rulemaking procedures. According to Drakes Bay, these errors render the Secretary’s decision “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Here, the likelihood of success on the merits of these claims is too remote to justify the extraordinary remedy of a preliminary injunction. In light of our conclusion about the merits, we address only in passing the remaining preliminary injunction factors. A. Likelihood of Success on the Merits 1. The Import of Section 124 The Secretary’s decision did not violate any statutory mandate, particularly the provision that gave him discretion to grant the permit despite any prior conflicting law. The key portion of Section 124 provides as follows: “Prior to the expiration on November 30, 2012 of the Drakes Bay Oyster Company’s Reservation of Use and Occupancy and associated special use permit (“existing authorization”) within Drakes Estero at Point Reyes National Seashore, notwithstanding any other provision of law, the Secretary of the Interior is authorized to issue a special use permit. ...” Section 124 put the Secretary on notice that he was not hamstrung by other law should he determine a permit extension was appropriate. The section left him free to consider wilderness values and the competing interests underlying a commercial operation in an area set aside as a natural seashore. The narrow question that we have jurisdiction to review is whether the Secretary misinterpreted his authority under Section 124. The record leaves no doubt that the answer is no. As the Secretary explained, “SEC. 124 grants me the authority and discretion to issue [Drakes Bay] a new special use permit, but it does not direct me to do so.” The Secretary repeated this understanding multiple times throughout the decision, noting, for example, that Section 124 “does not dictate a result or constrain my discretion in this matter,” and that it “grants me the authority to issue a new SUP.” Drakes Bay’s view that the Secretary violated Section 124 rests on a misinterpretation of that provision and a misapprehension of the Secretary’s reasoning. Drakes Bay first argues that the statute was intended to “make it easy” to issue the permit. As we explained above, this approach is wishful thinking, since the statute says nothing of the kind. Indeed, Congress first considered whether to mandate issuance of the permit but backed off that approach and ultimately left the decision to the Secretary’s discretion. In the end, Congress did nothing more than let the Secretary know his hands were not tied. Drakes Bay next argues that the Secretary erroneously concluded that extending the permit would “violate” applicable wilderness legislation. According to Drakes Bay, because Section 124 authorized the Secretary to extend the permit “notwithstanding any other provision of law,” the Secretary was “prohibit[ed] ... from relying on a violation of other law as a reason to justify a permit denial.” Drakes Bay’s reading of the decision is not tenable. Taken as a whole, the decision reflects that the Secretary explicitly recognized that extending the permit would be lawful and that he was not legally constrained by other laws. The Secretary elected to let the permit expire not to avoid “violating” any law, as Drakes Bay posits, but because the Secretary weighed and balanced competing concerns about the environment and the value of aquaculture. He chose to give weight to the policies underlying wilderness legislation, taking into account consideration of environmental impacts: “In addition to considering the [Drafted Environmental Impact Statement and Final Environmental Impact Statement], I gave great weight to matters of public policy, particularly the public policy inherent in the 1976 act of Congress that identified Drakes Estero as potential wilderness.” (Emphasis added). Drakes Bay seizes on a single sentence in a summary of reasons as evidence that the Secretary thought extending the permit would “violate ... specific wilderness legislation.” At the beginning of the decision, the summary includes one sentence that, read in isolation, raises an ambiguity: “The continuation of the [Drakes Bay] operation would violate the policies of NPS concerning commercial use within a unit of the National Park System and nonconforming uses within potential or designated wilderness, as well as specific wilderness legislation for Point Reyes National Seashore.” (Emphasis added). However, reading the sentence in context of the full decision, it is obvious the Secretary did not erroneously consider himself bound by any provision of wilderness legislation. In reviewing the agency’s decision, we must uphold even “a decision of less than ideal clarity” so long as “the agency’s path may reasonably be discerned.” FCC v. Fox Television Stations, 556 U.S. 502, 513-14, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (internal quotation marks omitted). The Secretary’s reliance on policy considerations and Congressional intent is evident throughout the decision. Recounting the factual and legal background, for example, the Secretary cited the House of Representatives committee report accompanying the Point Reyes Wilderness Act, which stated: As is well established, it is the intention that those lands and waters designated as potential wilderness additions will be essentially managed as wilderness, to the extent possible, with efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status. H.R.Rep. No. 94-1680 at 3. The Secretary returned to this committee report in his conclusion, explaining that: My decision honors Congress’s direction to “steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status” and thus ensures that these precious resources are preserved for the enjoyment of future generations of the American public, for whom Point Reyes National Seashore was created. As expressed in his decision, his choice was consistent with the draft and final environmental impact statements that “support the proposition that the removal of [Drakes Bay’s] commercial operations in the estero would result in long-term beneficial impacts to the estero’s natural environment.” Drakes Bay suggests that referencing even the Congressional “intent” or policies underlying the Point Reyes Wilderness Act runs afoul of Section 124. But as Drakes Bay itself acknowledges, the “most natural, common-sense reading” of the notwithstanding clause is “notwithstanding any law that would otherwise legally preclude issuance of a [special use permit], the Secretary has the authority to issue a SUP.” It is abundantly clear that the Secretary recognized his authority under Section 124 and did not believe he was legally bound by any statute to deny the permit. But the policy that underlies the 1976 Act and other wilderness legislation is just that-—an expression of public policy. These expressions neither “legally preclude” nor legally mandate extension, and they are not “other provision[s] of law” that are swept aside by Section 124’s “notwithstanding” clause. Statements in committee reports do not carry the force of law. See Lincoln v. Vigil, 508 U.S. 182, 192-93, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993). “Congress’s ‘authoritative statement is the statutory text, not the legislative history.’ ” Chamber of Commerce of U.S. v. Whiting, — U.S.-, 131 S.Ct. 1968, 1980, 179 L.Ed.2d 1031 (2011) (quoting Exxon Mobil, 545 U.S. at 568, 125 S.Ct. 2611). The Secretary’s incorporation of the policies underlying wilderness legislation, and of Congressional intent as expressed in the House committee report, was a matter of his discretion. The Secretary noted correctly that “SEC. 124 ... does not prescribe the factors on which I must base my decision.” Section 124 “provides the court no way to second-guess the weight or priority to be assigned” to these factors. Ctr. for Auto Safety v. Dole, 846 F.2d 1532, 1535 (D.C.Cir.1988) (concluding that agency decision to deny petition for enforcement was not reviewable where the governing regulations provided no standards to enable judicial review). The choice was the Secretary’s to make. 2. Drakes Bay’s Other Statutory Arguments As Section 124 affords no basis for us to review the substance of the Secretary’s decision, we have no measuring stick against which to judge Drakes Bay’s various claims that the Secretary’s policy determination was mistaken. To the extent the Secretary’s decision can be evaluated against the statutory requirements cited by Drakes Bay, Drakes Bay is unlikely to prevail in showing the decision was arbitrary and capricious, an abuse of discretion, or in violation of any law. Drakes Bay argues that the Secretary violated the law by directing that Drakes Estero be designated as wilderness, because such a designation was not possible under the Wilderness Act in light of California’s retained mineral and fishing rights. Although the Department of the Interior adopted this view in the past, the Department has since deemed that position inaccurate. The Wilderness Act itself nowhere provides that retained mineral or fishing rights preclude wilderness designation. Drakes Bay is not likely to succeed on its theory that the Secretary’s current position—that the permit’s expiration enables wilderness designation despite retained mineral and fishing rights—amounted to “legal error.” Drakes Bay also believes that wilderness designation was improper in light of the “historic farming community” that re mains on Drakes Estero. However, a 1978 amendment to the legislation establishing Point Reyes specifically authorizes the Park Service to lease property used for “agricultural, ranching, or dairying purposes.” Act of Nov. 10, 1978, Pub.L. No. 95-625, § 318, 92 Stat. 3467, 3487. The Secretary’s decision considered these uses a “compatible activity” within a wilderness area. Drakes Bay has not demonstrated how such a determination violates any restriction on the Secretary’s authority. On a related note, Drakes Bay charges that, in recounting the statutory history, the Secretary erred in stating that the 1978 amendment did not permit him to issue leases for mariculture. Drakes Bay’s effort to shoehorn itself into an “agricultural purpose” is unavailing. Congress limited the Secretary’s leasing authority to “lands” in Section 318(b) of the 1978 Act, rather than to the “lands, waters, and submerged lands” described in Section 318(a) of the same statute. Id. It is reasonable to assume this distinction is meaningful and reasonable for the Secretary to state that the Act did not authorize mariculture leases. Even if the Secretary misinterpreted this earlier law, he plainly understood that Section 124 did authorize him to issue Drakes Bay a permit for mariculture. In sum, the Secretary neither violated any statutory mandate nor did he misapprehend his authority under the various statutes raised by Drakes Bay. 3. Compliance with NEPA We next address the applicability of NEPA to the Secretary’s decision. Under NEPA, an agency is required to prepare an environmental impact statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The government urges that its decision to let Drakes Bay’s permit expire is not a “major Federal action[ ],” but rather is inaction that does not implicate NEPA. Drakes Bay responds that the term “major Federal actions” includes failures to act, 40 C.F.R. § 1508.18, and that NEPA applies to decisions concerning whether to issue a permit. Here, the Secretary’s decision to let Drakes Bay’s permit expire according to its terms effectively “denied” Drakes Bay a permit. We have held that “if a federal permit is a prerequisite for a project with adverse impact on the environment, issuance of that permit does constitute major federal action.” Ramsey v. Kantor, 96 F.3d 434, 444 (9th Cir.1996) (emphasis added). But we have never held failure to grant a permit to the same standard, and for good reason. If agencies were required to produce an EIS every time they denied someone a license, the system would grind to a halt. Our case law makes clear that not every denial of a request to act is a “major Federal action.” We have held, for example, that no EIS was required when the federal government denied a request to exercise its regulatory authority to stop a state’s program killing wildlife. State of Alaska v. Andrus, 591 F.2d 537, 541 (9th Cir.1979). Drakes Bay suggested at oral argument that the Secretary’s decision differs from typical inaction because it effected a change in the status quo, namely, the cessation of commercial operations that had previously been authorized. We are skeptical that the decision to allow the permit to expire after forty years, and thus to move toward designating Drakes Estero as wilderness, is a major action “significantly affecting the quality of the human environment” to which NEPA applies. 42 U.S.C. § 4332(2)(C). “The purpose of NEPA is to ‘provide a mechanism to enhance or improve the environment and prevent further irreparable damage.’ ” Douglas County v. Babbitt, 48 F.3d 1495, 1505 (9th Cir.1995) (quoting Pacific Legal Foundation v. Andrus, 657 F.2d 829, 837 (6th Cir.1981)). The Secretary’s decision is essentially an environmental conservation effort, which has not triggered NEPA in the past. For example, in Douglas County, we held NEPA did not apply to critical habitat designation under the Endangered Species Act because it did “not alter the natural, untouched physical environment at all” and “because the ESA furthers the goals of NEPA without demanding an EIS.” Id. at 1505-06 (emphasis added). Because removing the oyster farm is a step toward restoring the “natural, untouched physical environment,” the reasoning of Douglas County is persuasive here. The Secretary’s decision to allow the permit to expire, just like the designation under the ESA, “protects the environment from exactly the kind of human impacts that NEPA is designed to foreclose.” Id. at 1507. Drakes Bay also argued that removal of the oyster farm implicates NEPA because it has “adverse environmental consequences.” Although the final EIS did note that removal might cause certain short-term harms, such as noise associated with heavy machinery needed to remove Drakes Bay’s structures, such relatively minor harms do not by themselves “significantly affect[ ]” the environment in such a way as to implicate NEPA. 42 U.S.C. § 4332(2)(C). We are “reluctant ... to make NEPA more of an obstructionist tactic to prevent environmental protection than it may already have become.” Douglas County, 48 F.3d at 1508 (internal quotation marks omitted). Ultimately, we need not resolve whether NEPA compliance was required because, even if it was, the Secretary conducted an adequate NEPA review process and any claimed deficiencies are without consequence. The government produced a lengthy EIS, which the Secretary considered and found “helpful.” Although the Secretary acknowledges that compliance with NEPA was less than perfect, Drakes Bay is unlikely to succeed in showing that the errors were prejudicial. Relief is available under the APA only for “prejudicial error.” 5 U.S.C. § 706; see also Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (“In administrative law, as in federal civil and criminal litigation, there is a harmless error rule.”) (internal quotation marks and citation omitted). Drakes Bay points to “technical” violations, specifically, the Secretary’s failure to publish the EIS more than thirty days before he made his decision and the Secretary’s framing the extension denial in the form of a Decision Memorandum rather than a Record of Decision. Drakes Bay has shown no prejudice from these claimed violations. See Nat’l Forest Pres. Grp. v. Butz, 485 F.2d 408, 412 (9th Cir.1973) (declining to reverse where NEPA timing and EIS requirements were not strictly followed but the agency “did consider environmental factors” and the “sterile exercise” of forcing agency to reconsider “would serve no useful purpose”); see also City of Sausalito v. O’Neill, 386 F.3d 1186, 1220 (9th Cir.2004) (declining to reverse based on violation of deadline for ESA biological assessment where no harm was shown). Drakes Bay puts considerable stock in its claims that the final EIS was based on flawed science and that the absence of the thirty-day comment period denied it an opportunity to fully air its critique, specifically with regard to conclusions regarding the “soundscape” of the estero. Nothing in the record suggests that Drakes Bay was prejudiced by any shortcomings in the final soundscape data. Drakes Bay sent the Secretary its scientific critique before he issued his decision. The Secretary specifically referenced that communication and stated that he did not rely on the “data that was asserted to be flawed.” The Secretary was well aware of the controversies on the specific topics that Drakes Bay criticizes and his statement was unambiguous that they did not carry weight in his decision. Drakes Bay’s suggestion that the Secretary could not have made the informed decision that NEPA requires without resolving all controversies about the data is unsound. NEPA requires only that an EIS “contain[ ] a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Seattle Audubon Soc. v. Espy, 998 F.2d 699, 703 (9th Cir.1993) (internal quotation marks and citation omitted). Drakes Bay is not likely to succeed in showing that the final EIS was inadequate, even assuming NEPA compliance was required. 4. Federal Register Notice In light of the determination to let the permit expire, the Secretary directed the National Park Service to “publish in the Federal Register the notice announcing the conversion of Drakes Estero from potential to designated wilderness.” Drakes Bay argues that the subsequently published notice was false because Drakes Bay’s continued commercial activities (under the 90-day period the decision allowed to wrap up operations) and California’s retained fishing and mineral rights precluded wilderness status. Drakes Bay also argues that the notice was issued in violation of formal rulemaking regulations. Drakes Bay lacks standing to challenge the publication of the notice. Its claimed injury arises from the Secretary’s decision to let its permit expire, not the designation in the notice. Drakes Bay cannot continue its operations without a permit, regardless of how the estero is designated. We disagree with Drakes Bay’s position that it has standing because “it will be necessary to vacate the unlawful notice in order for [Drakes Bay’s] injuries to be ultimately redressed.” Because Drakes Bay is not injured by the notice, it may not challenge the notice’s purported falsity or the Secretary’s compliance with rulemaking procedures. B. Weighing the Equities Drakes Bay is not entitled to a preliminary injunction not only because it failed to raise a serious question about the Secretary’s decision, but also because it has not shown that the balance of equities weighs in its favor. Alliance for the Wild Rockies, 632 F.3d at 1132. The district court found that, although Drakes Bay satisfied the irreparable harm prong of the preliminary injunction analysis, neither the public interest nor the equities were in its favor. When the government is a party, these last two factors merge. Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). Our review of the court’s findings is for abuse of discretion, and we see none here. The district court reasonably found that the public interest does not weigh in favor of injunctive relief. The public benefits both from the enjoyment of protected wilderness and of local oysters, and the court found no basis upon which to weigh these respective values. This factor does not tip to Drakes Bay. Recognizing that Drakes Bay bears the burden in its quest for a preliminary injunction, the court’s consideration of other equitable factors was also reasonable. Drakes Bay purchased the oyster farm with full disclosure, knowing that the reservation of use and occupancy was set to expire in 2012. The Department repeatedly warned the company that it did not plan to issue a new permit. Although the prospect of closing down a business is a serious hardship, the only reasonable expectation Drakes Bay could have had at the outset was that such a closure was very likely, if not certain. Closure remained a distinct possibility even after the passage of Section 124. Drakes Bay argued to the district court that it had “every reason to hope” for extension. But when parties “ ‘anticipate[ ] a pro forma result’ in permitting applications, they become ‘largely responsible for their own harm.’” Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978, 997 (8th Cir.2011) (quoting Davis v. Mineta, 302 F.3d 1104, 1116 (10th Cir.2002)). We see no reason to disturb the court’s finding that the company’s “refusal to hear the message” was an equitable factor weighing against it. Affirmed. . The panel appreciates the amicus briefing filed by supporters of both sides. Alice Waters, Tómales Bay Oyster Company, Hayes Street Grill, the California Farm Bureau Federation, the Marin County Farm Bureau, the Sonoma County Farm Bureau, Food Democracy Now, Marin Organic, and the Alliance For Local Sustainable Agriculture filed an amici curiae brief in support of Drakes Bay. The Environmental Action Committee of West Marin, National Parks Conservation Association, Natural Resources Defense Council, Save Our Seashore, and the Coalition of National Park Service Retirees filed an amici curiae brief in support of the federal parties. . In the final EIS, the Department stated that Section 124 did not require compliance with NEPA because that provision gave the Secretary authorization to make the permit decision "notwithstanding any other provision of law.” Nevertheless, the Department “determined that it is helpful to generally follow the procedures of NEPA.” The Secretary reiterated this position in his decision. . Drakes Bay’s data quality complaint is not before us in this appeal. . A motions panel granted Drakes Bay’s emergency motion for an injunction pending appeal "because there are serious legal questions and the balance of hardships tips sharply in appellants’ favor.” With the benefit of full briefing and argument, we need not defer to the motion panel’s necessarily expedited decision. United States v. Houser, 804 F.2d 565, 568 (9th Cir.1986). . The dissent’s conclusion that "[cjontinued operation of the oyster farm is fully consistent with the Wilderness Act,” Dissent at 991, is particularly puzzling given that Drakes Bay itself argued that wilderness designation of Drakes Estero was not possible while the oyster farm’s commercial activities continued. Moreover, there are a variety of Park Service management criteria that inform the question of what kinds of activities are "consistent” with wilderness designation under the Wilderness Act. The dissent’s reliance on decades-old legislative pronouncements about the Johnson oyster farm for the proposition that Section 124 was intended to foreclose the Secretary from considering his department’s own policies with regard to Drakes Bay stretches even the most liberal use of legislative history to the breaking point. "[U]ne-nacted approvals, beliefs, and desires are not laws.” Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 501, 108 S.Ct. 1350, 99 L.Ed.2d 582 (1988). . This function is meaningful regardless of whether conflicting laws actually prevented the Secretary from issuing a permit, a question the dissent would answer in the negative, Dissent at 990, but which we simply have no occasion to pass on here. The Department's legal position raised a “potential [] conflict!],'' Novak, 476 F.3d at 1046 (emphasis added), regarding the Department's authority, and the “notwithstanding clause” made clear that "other provisions of law” were not an impediment. . Indeed, the only consideration that Congress addressed in Section 124 was that "[t]he Secretary shall take into consideration recommendations of the National Academy of Sciences Report pertaining to shellfish mari-culture in Point Reyes National Seashore before modifying any terms and conditions of the extended authorization.” (Emphasis added.) As modification of the permit is not at issue here, this provision is not relevant. . The dissent's position that the agency "relied on factors which Congress has not intended it to consider,” Dissent at 992, is not supported by the record. Under the deferential arbitrary and capricious standard, we uphold agency action for which a rational explanation is given, particularly where the agency "acted within the sphere of its expertise.” McFarland v. Kempthorne, 545 F.3d 1106, 1113 (9th Cir.2008). The Secretary's decision relied in general on "Congress’s direction” to remove "obstacles” to wilderness designation. While the Wilderness Act bans commercial enterprise within wilderness areas "subject to existing private rights,” 16 U.S.C. § 1133(c), Park Service policies inform whether wilderness designation is appropriate in the first instance. Contrary to the dissent’s characterization, the 1976 legislation did not invoke a crystal ball and pass judgment on the compatibility of oyster farming in Drakes Estero with wilderness some thirty plus years later when the reservation of use would expire. Indeed, things change. The Secretary, drawing on the agency expertise amassed in the decades since the 1970s, concluded that con-turned oyster farming was inconsistent with wilderness criteria and the Department’s policies. The Secretary’s decision that removing the farm would further Congress's earlier expressed goal of moving toward wilderness designation was rational and within his authority under Section 124. . Notably, the State of California takes the position that its retained rights, including the state constitutional right to fish, do not cover aquaculture. The California Department of Fish and Game criticized and rejected "brief, general, and conclusory” communications it made decades earlier that suggested the oyster farm was covered by the "right to fish” reservation. At present, the state has issued water bottom leases to Drakes Bay for its commercial operations, but has made clear that the use of those leases past 2012 "is expressly contingent upon [Drakes Bay’s] compliance with the 1972 grant reservation and, after its expiration, with any special use permit” that the federal government "may issue in its discretion.” . Drakes Bay argues that we cannot consider the government’s inaction argument because the Secretary did not rely on that position in his decision. We disagree. "The rationale behind the Chenery I Court’s refusal to accept belated justifications for agency action not previously asserted during the agency’s own proceedings does not apply in this case. Chenery I was premised on the policy that courts should not substitute their judgment for that of the agency when reviewing a 'determination of policy or judgment which the agency alone is authorized to make and which it has not made.’ ” Louis v. U.S. Dep't of Labor, 419 F.3d 970, 977-78 (9th Cir.2005) (quoting SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943)) (emphasis added). The "policy or judgment” call here was the Secretary's substantive decision whether to grant the permit. We are not constrained in considering arguments concerning the applicability of NEPA. . Drakes Bay noted at oral argument that we have recognized a circuit split on the question of "whether significant beneficial effects alone would trigger an EIS” and concluded in dicta that requiring an EIS in those circumstances was “consistent with the weight of circuit authority and has the virtue of reflecting the plain language of the statute.” Humane Society of U.S. v. Locke, 626 F.3d 1040, 1056 n. 9 (9th Cir.2010) (citing cases) (emphasis added). The authority cited is not persuasive here, however, because none of those cases addressed environmental conservation efforts. The cases instead dealt with major federal construction projects to which NEPA applied in order to evaluate the positive effects asserted. See Sierra Club v. Froehlke, 816 F.2d 205, 211 n. 3 (5th Cir.1987) (major federal water project of Army Corps of Engineers); Nat’l Wildlife Fed’n v. Marsh, 721 F.2d 767, 783 (11th Cir.1983) (construction of man-made lake); Envtl. Def. Fund v. Marsh, 651 F.2d 983, 993 (5th Cir.1981) (major navigational project); see also Natural Res. Def. Council, Inc. v. Herrington, 768 F.2d 1355, 1431 (D.C.Cir.1985) (addressing energy-efficiency standards for household appliances and noting in dicta that "both beneficial and adverse effects on the environment can be significant within the meaning of NEPA”). . Drakes Bay had submitted previous criticisms about the soundscape analysis, and related impacts on harbor seals, in its data quality complaint regarding the draft EIS. Although Drakes Bay did not raise the issue in its briefs, at oral argument it objected that the Secretary did not adequately respond to expert comments to the DEIS. In general, "on appeal, arguments not raised by a party in its opening brief are deemed waived.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999). Regardless, we conclude the response to the DEIS was adequate. The Congressionallymandated NAS report that criticized elements of the DEIS, including on these subjects, was brought to the Secretary’s attention. The NAS report emphasized that the scientific literature on Drakes Estero was simply "not extensive” and that research on the impact of oyster farming was "even sparser.” The takeaway was that impact assessments for the soundscape and harbor seals were "considered to have a high level of uncertainty.” The final EIS responded to the NAS critique and also addressed the scientific disputes. In particular, it added “a discussion on the strength of the underlying scientific data” to address the NAS’s concerns about scientific uncertainty. . To the extent that Drakes Bay argues that the Secretary’s decision was somehow tainted by the instruction that the Park Service publish the notice, the challenge still fails because the instruction was in accordance with the law. The notice was not false because, as we explained above, Drakes Estero could be designated "wilderness” despite California's reserved rights. Nor is the presence of temporary non-wilderness conditions an obstacle because Park Service policy permits a wilderness designation when "wilderness character could be ... restored through appropriate management actions.” In addition, although general regulations require rulemaking for certain use terminations, 36 C.F.R. § 1.5(b), the more specific section of 1976 legislation provided that conversion to wilderness would be automatic "upon publication in the Federal Register of a notice by the Secretary of the Interior that all uses thereon prohibited by the Wilderness Act ... have ceased.” 90 Stat. 2692.

Drakes Bay Oyster Co. v. Jewell

WATFORD, Circuit Judge, dissenting: The majority states that, by enacting § 124, “Congress did nothing more than let the Secretary know his hands were not tied.” Maj. op. at 980. I think Congress, by including the “notwithstanding” clause in § 124, intended to do more than that. In particular, it sought to override the Department of the Interior’s misinterpretation of the Point Reyes Wilderness Act, Pub.L. No. 94-544, 90 Stat. 2515 (1976). The Department had concluded, in 2005, that the Act barred issuance of a special use permit authorizing continued operation of Drakes Bay Oyster Company’s oyster farm. The Department thought Congress had “mandated” that result by designating Drakes Estero, where the oyster farm is located, as a “potential wilderness addition” in the Point Reyes Wilderness Act. The Act’s legislative history makes clear, however, that by divining such a mandate, the Department simply misinterpreted the Act’s provisions and misconstrued Congress’s intent. The Department’s misinterpretation of the Point Reyes Wilderness Act prompted Congress to enact § 124 in 2009. In my view, by including a notwithstanding clause in § 124, Congress attempted to supersede the Department’s erroneous interpretation of the Act. In the 2012 decision challenged here, the Secretary nonetheless denied Drakes Bay’s permit request based primarily on the very same misinterpretation of the Point Reyes Wilderness Act that Congress thought it had overridden. As a result, I think Drakes Bay is likely to prevail on its claim that the Secretary’s decision is arbitrary, capricious, or otherwise not in accordance with law. See 5 U.S.C. § 706(2)(A). Because the other preliminary injunction factors also weigh in Drakes Bay’s favor, injunctive relief preserving the status quo should have been granted here. I To explain why I think the Interior Department (and later the Secretary) misinterpreted the Point Reyes Wilderness Act, a fairly detailed discussion of the Act’s legislative history is necessary. The events leading up to passage of the Point Reyes Wilderness Act begin in 1962, when Congress authorized creation of the Point Reyes National Seashore and appropriated funds for land acquisition within the Seashore’s designated boundaries. Act of Sept. 13, 1962, Pub.L. No. 87-657, 76 Stat. 538 (1962). As part of that process, in 1965, the State of California conveyed ownership of the submerged lands and coastal tidelands within the Seashore’s boundaries to the federal government. See Act of July 9, 1965, ch. 983, § 1, 1965 Cal. Stat. 2604, 2604. Those lands included Drakes Estero. The conveyance reserved certain mineral and fishing rights, which allowed the State to “prospect for, mine, and remove [mineral] deposits from the lands,” and “reserved to the people of the state the right to fish in the waters underlying the lands.” Id. §§ 2-3, 1965 Cal. Stat. at 2605. At the time of the State’s conveyance, oyster farming was already a well-established fixture in Drakes Estero, with roots dating back to the 1930s. In 1973, the President recommended that Congress preserve 10,600 acres within the Point Reyes National Seashore as “wilderness,” under the terms of the Wilderness Act of 1964, Pub.L. No. 88-577, § 3(c), 78 Stat. 890, 892 (1964). Members of California’s congressional delegation found that recommendation woefully inadequate, and soon thereafter introduced identical bills in the House and Senate designating far larger areas of the Seashore as wilderness. In the House, Congressman John Burton introduced H.R. 8002, 94th Cong. (1975); in the Senate, Senator John Tunney introduced S. 2472, 94th Cong. (1975). H.R. 8002 is the bill that eventually became the Point Reyes Wilderness Act. As originally proposed, H.R. 8002 and S. 2472 would have designated more than thirty-eight thousand acres as wilderness. Included within that designation was Drakes Estero, as well as most of the other submerged lands and coastal tidelands conveyed by California in 1965. The sponsors of H.R. 8002 and S. 2472 were well aware of the oyster farm in Drakes Estero. They nonetheless included Drakes Estero within the wilderness designation because they did not view the farm’s operations as incompatible with the area’s wilderness status. Commenting on the Senate bill, Senator Tunney left no doubt on that score, declaring, “Established private rights of landowners and leaseholders will continue to be respected and protected. The existing agricultural and aquacultural uses can continue.” Wilderness Additions—National Park System: Hearings Before the Subcomm. on Parks and Recreation of the S. Comm, on Interior and Insular Affairs, 94th Cong. 271 (1976) [hereinafter Setiate Hearing ]. During hearings on H.R. 8002 and S. 2472, various civic, environmental, and conservation groups supported Drakes Este-ro’s designation as wilderness. They explained in detail why neither the State’s reserved mineral and fishing rights nor the oyster farm precluded such a designation. No one advocating Drakes Estero’s designation as wilderness suggested that the oyster farm needed to be removed before the area could become wilderness. See id. at 324-33, 344-61; H.R. 7198, H.R. 8002, et al., To Designate Certain Lands in the Point Reyes National Seashore, California as Wilderness: Hearing Before Sub-comm. on Nati Parks and Recreation of the H. Comm, on Interior and Insular Affairs, 94th Cong. (1976) [hereinafter House Hearing], prepared statements of Jim Eaton, William J. Duddleson, Ms. Raye-Page, and Frank C. Boerger. The comments Congress received from those who were advocating Drakes Este-ro’s designation as wilderness stressed a common theme: that the oyster farm was a beneficial pre-existing use that should be allowed to continue notwithstanding the area’s designation as wilderness. For example, a representative from the Wilderness Society stated: “Within Drakes Este-ro the oyster culture activity, which is under lease, has a minimal environmental and visual intrusion. Its continuation is permissible as a pre-existing non-conforming use and is not a deterrent for inclusion of the federally owned submerged lands of the Estero in wilderness.” House Hearing, prepared statement of Ms. Raye-Page, at 6. The Chairman of the Golden Gate National Recreation Area Citizens’ Advisory Commission noted that the oyster-farming operations “presently carried on within the seashore existed prior to its establishment as a park and have since been considered desirable by both the public and park managers.” Senate Hearing, at 361. He therefore recommended that specific provision be made to allow such operations “to continue unrestrained by wilderness designation.” Id. Others observed, echoing the comments of Senator Tunney, that the proposed House and Senate bills already provided for that. See House Hearing, prepared statement of William J. Duddleson, at 3-4 (“H.R. 8002 would allow continued use and operation of Johnson’s Oyster Company at Drake’s Estero, as a pre-existing non-conforming use.”); Senate Hearing, at 357 (“S. 2472 would allow the continued use and operation of Johnson’s Oyster Company in Drake’s Estero.”). A local state assemblyman succinctly summed it up this way: “Finally, I believe everyone concerned supports the continued operation of oyster farming in Drakes Estero as a non-conforming use.” Senate Hearing, at 356. The view expressed by these speakers'— that continued operation of the oyster farm was fully compatible with Drakes Estero’s designation as wilderness—was not some wild-eyed notion. It was firmly grounded in the text of the Wilderness Act itself. The Act generally bans commercial enterprise within wilderness areas, but does so “subject to existing private rights.” 16 U.S.C. § 1133(c). Drakes Bay’s predecessor, the Johnson Oyster Company, had existing private rights in the form of water-bottom leases issued by California that pre-dated both the passage of the Wilderness Act and creation of the Point Reyes National Seashore. The Act also generally prohibits the use of motorboats within wilderness areas, see id., but the Secretary of Agriculture may permit continued use of motorboats when, as here, such use has “already become established.” Id. § 1133(d)(1). To the extent there is any ambiguity in these provisions, the Act’s legislative history makes clear that Congress believed the new wilderness-preservation system would not affect the economic arrangements of business enterprises “because existing private rights and established uses are permitted to continue.” S.Rep. No. 88-109, at 2 (1963). The only party opposed to designating Drakes Estero as wilderness was the Department of the Interior. At first, the Department took the position that none of the submerged lands and coastal tidelands conveyed by California in 1965 could be designated as wilderness, because the State’s reserved mineral and fishing rights were “inconsistent with wilderness.” House Hearing, letter from John Kyi, Assistant Secretary of the Interior, at 3. When the Department’s view came under attack by those who argued that the State’s reserved rights were not in any way inconsistent with wilderness, see, e.g., Senate Hearing, at 327-28, the Department backpedaled. It proposed placing most of the lands subject to the State’s reserved rights into a new legislative classification—“potential wilderness addition”—which it had developed in connection with similar wilderness proposals. See House Hearing, at. 11-12; id., letter from John Kyi, Assistant Secretary of the Interior, at 1. That designation was intended to encompass “lands which are essentially of wilderness character, but retain sufficient non-conforming structures, activities, uses or private rights so as to pre-elude immediate wilderness classification.” S.Rep. No. 94-1357, at 3 (1976). Four areas subject to the State’s reserved rights were at issue: the coastal tidelands, Limantour Estero, Abbotts Lagoon, and Drakes Estero. The original version of H.R. 8002 designated all four areas as wilderness, not just potential wilderness additions. But in the spirit of compromise, Congressman Burton, the sponsor of H.R. 8002, agreed to amend the bill by designating those areas as potential wilderness additions, rather than as wilderness. See House Hearing, prepared statement of Rep. John Burton, at 2. In doing so, he made clear that all four areas were being designated as potential wilderness additions due to California’s reserved mineral and fishing rights. See id. He noted that, “[a]s ‘potential wilderness,’ these areas would be designated as wilderness effective when the State ceeds [sic] these rights to the United States.” Id. (emphasis added). As so amended, H.R. 8002 was enacted as the Point Reyes Wilderness Act in 1976. Fast forward now to 2005. Shortly before Drakes Bay’s purchase of the oyster farm closed, the Park Service reiterated its view that, based on a legal analysis performed by the Interior Department, no new permits authorizing oyster farming in Drakes Estero could be issued. The Department’s legal analysis concluded—bizarrely, given the legislative history recounted above—that by designating Drakes Estero as a potential wilderness addition in the Point Reyes Wilderness Act, Congress had “mandated” elimination of the oyster farm. The Department never identified anything in the text of the Act to support that view; it cited only a passage from the House Report accompanying H.R. 8002. But that passage “is in no way anchored in the text of the statute,” Shannon v. United States, 512 U.S. 573, 583-84, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994), and thus provides no support for the Department’s interpretation of the Act. Even taken on its own terms, however, the passage from the House Report does not support the Department’s interpretation. The passage states in full: “As is well established, it is the intention that those lands and waters designated as potential wilderness additions will be essentially managed as wilderness, to the extent possible, with efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status.” H.R.Rep. No. 94-1680, at 3 (1976) (emphasis added). But the oyster farm was not an “obstacle” to Drakes Estero’s conversion to wilderness status, and no one in Congress ever expressed that view. To the contrary, as discussed above, all indications are that Congress viewed the oyster farm as a beneficial, pre-existing use whose continuation was fully compatible with wilderness status. II With that background in mind, we can now turn to the legal issue at the heart of this appeal, which is how to construe § 124. Everyone appears to agree that the Park Service’s conclusion in 2005 that it was legally prohibited from granting Drakes Bay a special use permit prompted Congress to enact § 124. If all Congress had wanted to do was “let the Secretary know his hands were not tied,” as the majority asserts, § 124 could simply have stated, as it does, that “the Secretary of the Interior is authorized to issue a special use permit....” Act of Oct. 30, 2009, Pub.L. No. 111-88, § 124, 123 Stat. 2904, 2932. But Congress went further and added a notwithstanding clause, so that the statute as enacted reads, “notwith standing any other provision of law, the Secretary of the Interior is authorized to issue a special use permit....” Id. (emphasis added). Our task is to determine what effect Congress intended the notwithstanding clause to have. Given the historical backdrop against which § 124 was enacted, I think Congress intended the clause to override the Interi- or Department’s misinterpretation of the Point Reyes Wilderness Act. Reading the clause in that fashion is consistent with the way courts have typically construed notwithstanding clauses. The Supreme Court has held that the use of such a clause “clearly signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section.” Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993). And we have said that the basic function of such clauses is to “sweep aside” and “supersede” any potentially conflicting laws. United States v. Novak, 476 F.3d 1041, 1046 (9th Cir.2007) (en banc); Student Loan Fund of Idaho, Inc. v. U.S. Dep’t of Educ., 272 F.3d 1155, 1166 (9th Cir.2001). A notwithstanding clause often targets those laws that were the “legal sticking point” for the action Congress intends to authorize. Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of Eng’rs, 619 F.3d 1289, 1301 n. 19 (11th Cir.2010). In this case, no conflicting laws actually prevented the Secretary from issuing a permit to Drakes Bay. Continued operation of the oyster farm is fully consistent with the Wilderness Act, and the farm’s existence is therefore not an “obstacle” to converting Drakes Estero to wilderness status as directed by the Point Reyes Wilderness Act. Instead, it was the Interior Department’s misinterpretation of the Point Reyes Wilderness Act that proved to be the “legal sticking point” here. I think the best reading of the notwithstanding clause is that Congress meant to “override” (“sweep aside,” “supersede”) that misinterpretation of the law when it enacted § 124. Alpine Ridge Grp., 508 U.S. at 18, 113 S.Ct. 1898; Novak, 476 F.3d at 1046; Student Loan Fund, 272 F.3d at 1166. If you accept what I have said so far, only two questions remain. The first is whether Congress, having overridden the Department’s misinterpretation of the Point Reyes Wilderness Act, nonetheless authorized the Secretary to rely on that misinterpretation as a basis for denying Drakes Bay a permit. I cannot see any reason why we would construe § 124 in that fashion. Under the Administrative Procedure Act (APA), if an agency bases its decision on a legally erroneous interpretation of the controlling statute, its decision will be deemed arbitrary, capricious, or otherwise not in accordance with law. See Safe Air for Everyone v. EPA 488 F.3d 1088, 1091, 1101 (9th Cir.2007) (involving an erroneous interpretation of a state implementation plan that had the force and effect of federal law). Thus, even without the notwithstanding clause, it would make no sense to assume that Congress authorized the Secretary to base his decision on a misinterpretation of the Point Reyes Wilderness Act. With the clause, adopting any such construction of § 124 would be entirely indefensible. The second (and admittedly closer) question is whether the Secretary in fact based his decision on the misinterpretation of the Act that Congress intended to override by enacting § 124. The majority suggests that the Secretary based his decision instead on the Interior Department’s own policies, see Maj. op. at 978 & n. 5, 982 n. 8, but I do not think the Secretary’s written decision denying the permit supports that view. The Secretary’s decision states that he gave “great weight” to what he called “the public policy inherent in the 1976 act of Congress that identified Drakes Estero as potential wilderness.” The Secretary read that Act as expressing Congress’s intention that all “obstacles” to converting Drakes Estero to wilderness status should be removed. But he erroneously deemed the oyster farm to be such an obstacle (“DBOC’s commercial operations are the only use preventing the conversion of Drakes Este-ro to designated wilderness”), because he erroneously assumed that the oyster farm’s continued operation was “prohibited by the Wilderness Act.” That in turn led him to conclude—again erroneously— that his decision to eliminate the oyster farm “effectuate[d]” Congress’s intent as expressed in the Point Reyes Wilderness Act. These are precisely the same errors of statutory interpretation the Interior Department made back in 2005. They are precisely the same errors that prompted Congress to enact § 124 in the first place. And, in my view, they are precisely the same errors Congress attempted to supersede by inserting the notwithstanding clause. Contrary to the majority’s assertion, the Secretary had no authority to rely on this misinterpretation of “Congress’s earlier expressed goal” because the notwithstanding clause eliminated any such authority. See Maj. op. at 982 n. 8. What does the majority offer in response to this analysis? Some hand waving, to be sure, but nothing of any substance. Most tellingly, the majority never attempts to argue that the Interior Department’s interpretation of the Point Reyes Wilderness Act was correct. Nor could it make that argument with a straight face given the Act’s clear legislative history, which the majority never attempts to address, much less refute. The majority thus has no explanation for Congress’s inclusion of the notwithstanding clause in § 124 other than the one I have offered: that it was included to override the Department’s misinterpretation of the Point Reyes Wilderness Act. The majority claims that the clause “has a clear function—to convey that prior legislation should not be deemed a legal barrier” to permit issuance. See Maj. op. at 978. But that reading of the clause supports my position because the Secretary did treat “prior legislation”—namely, the Point Reyes Wilderness Act—as a “legal barrier” to permit issuance. As I have argued, that is exactly what the notwithstanding clause was intended to prohibit. The majority also claims that I have not accorded the Secretary’s decision the deference it is owed under the arbitrary and capricious standard, which requires us to give due regard to an agency’s exercise of discretion within its sphere of expertise. See Maj. op. at 982 n. 8. But I am not arguing here that the Secretary’s decision must be set aside because it reflects faulty weighing of permissible policy factors. We would have no authority to second guess a decision of that order. What I am saying, instead, is that § 124’s notwithstanding clause precluded the Secretary from basing his decision on the very misinterpretation of the Point Reyes Wilderness Act that Congress intended to override. A decision will normally be deemed arbitrary and capricious if an agency “has relied on factors which Congress has not intended it to consider.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). That, unfortunately, is just what the Secretary did. In short, I would hold that Drakes Bay is likely to prevail on the merits of its APA claim. The Secretary’s misinterpretation of the Point Reyes Wilderness Act, and his mistaken view that denying the permit request effectuated Congress’s intent, were “fundamental” to his decision, rendering the decision “arbitrary, capricious, or otherwise not in accordance with law.” Safe Air for Everyone, 488 F.3d at 1101 (internal quotation marks omitted). Ill Like the majority, I will not spend much time addressing the remaining preliminary injunction factors—-irreparable harm, balance of the equities, and the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Considered together, those factors tip in Drakes Bay’s favor. Drakes Bay will suffer irreparable injury to its business and real-property rights if a preliminary injunction is erroneously denied. See, e.g., Sundance Land Corp. v. Cmty. First Fed. Sav. & Loan Ass’n, 840 F.2d 653, 661 (9th Cir.1988); Am. Passage Media Corp. v. Cass Commc’ns, Inc., 750 F.2d 1470, 1474 (9th Cir.1985). The loss of “an ongoing business representing many years of effort and the livelihood of its [owners] constitutes irreparable harm.” Roso-Lino Beverage Distribs., Inc. v. Coca-Cola Bottling Co., 749 F.2d 124, 125-26 (2d Cir.1984) (per curiam). The balance of equities favors Drakes Bay. The majority concludes otherwise by noting that Drakes Bay knew when it acquired the oyster farm that its permit would expire in 2012. Maj. op. at 987. But that is not the relevant consideration. Rather, the controlling consideration is that the harm Drakes Bay will suffer from the erroneous denial of a preliminary injunction far outweighs the harm the government will suffer from an erroneous grant of such relief. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1137-38 (9th Cir.2011); Scotts Co. v. United Indus. Corp., 315 F.3d 264, 284 (4th Cir.2002); Am. Hosp. Supply Corp. v. Hosp. Prods. Ltd., 780 F.2d 589, 593 (7th Cir.1986); Roso-Lino, 749 F.2d at 126. The government will suffer only modest harm if oyster farming’s eighty-year history in the Estero continues a bit longer. But if a preliminary injunction is erroneously denied, Drakes Bay’s business will be destroyed. That is all Drakes Bay must show to demonstrate that the balance of equities tips in its favor here. Finally, the public interest favors neither side. As the district court observed, federal judges are ill equipped to weigh the adverse environmental consequences of denying a preliminary injunction against the consequences of granting such relief, or the relative interests in access to Drakes Bay’s oysters as opposed to unencumbered wilderness. It is the equities that carry the day in this case, see Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (when the United States is a party, equities and the public interest merge), and the equities strongly favor Drakes Bay.

Cordi-Allen v. Conlon

SELYA, Senior Circuit Judge. Land-use restrictions often set neighbor against neighbor, and can be a source of considerable turmoil in otherwise tranquil communities. So it is here: Barbara Cor-di-Allen and her husband John Allen (the Allens) are landowners in the Cape Cod town of Truro, Massachusetts (the Town). They own a waterfront lot and wish to improve it. They have thus far been stymied in their efforts by a series of zoning, environmental, and licensing restrictions. The Allens accuse the Town of singling them out for unfavorable treatment and thwarting their plans. The Town, with equal fervor, accuses the Allens of seeking advantages to which they are not entitled. The ill will has spread like a malignant growth and has come to envelop several of the Allens’ neighbors. After many years of travail, the Allens elevated the feud to constitutional proportions: they condensed their grievances into a so-called “class of one” claim, alleging that the disparate treatment they had received infringed their rights under the Equal Protection Clause. See U.S. Const, amend. XIV. The Town heatedly denied these allegations. The district court sided with the Town and granted summary judgment in its favor. See Cordi-Allen v. Conlon, No. 1:05-cv-10370, 2006 WL 2033897, at *8 (D.Mass. July 19, 2006). We are called upon to review that order. In doing so, we take the supported facts in the light most favorable to the nonmovants (here, the Allens). Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir.2007). The events surrounding this case are byzantine, and a full recitation would serve no useful purpose. Thus, we offer only a decurtate summary, supplemented as needed in the course of our analysis of the relevant legal issues. We urge readers who hunger.for more detailed information to consult the district court’s comprehensive opinion (which even the Allens, at oral argument before us, commended as doing “a good job of gleaning the facts”). This controversy dates back to March of 1996, when the Allens purchased a piece of waterfront property in Truro. The parcel abuts properties owned by Brooke Newman, Sarah Landis, and the Pamet Harbor Yacht Club. Other neighbors in relatively close proximity include the Sextons and the Perrys. The Allens’ lot is undersized. The only improvements on it as of the date of acquisition were a small 400-square-foot cottage and a short pier. The Allens aspired to build a compound. Their plans contemplated erecting a new 1,512-square-foot dwelling with an attached 1,750-square-foot garage on a solid foundation with crawl space drainage; expanding the existing cottage (originally built as a boathouse) into a 640-square-foot residence; and installing a large swimming pool with adjacent decks. To top matters off, the Allens proposed to install floats as a means of extending their existing pier. A number of disagreements arose with respect to the Allens’ plans. These included disputes about the interpretation and application of zoning laws and environmental restrictions. The controversy soon extended to the licensing of the proposed floats. The Allens characterize all of this as obstructive behavior. They protest that it stands in stark contrast to the accommodations lavished on other residents. Their next-door neighbor, Newman, is the poster child for the claim of unequal treatment. In addition, they insist that Landis, the Sextons, and the yacht club all have received more favorable receptions from the Town. Frustrated by these perceived inequities, the Allens filed suit in a Massachusetts state court in February of 2005. Their complaint contained five counts. The first, third, fourth, and fifth counts are not relevant here. The sole count with which we are concerned—count 2—in-voked 42 U.S.C. § 1983 and alleged that the Town had denied the Allens equal protection of the laws. On the basis of the equal protection claim, the defendants removed the case to the federal district court. See 28 U.S.C. §§ 1331, 1441. In due course, the Town moved for summary judgment with respect to count 2. See Fed.R.Civ.P. 56. The district court concluded that the Allens had not shown that the Town had treated them differently from similarly situated parties and entered judgment on the equal protection claim. See Cordi-Allen, 2006 WL 2033897, at *8. It then remanded the remaining counts to the state court. See id.; see also 28 U.S.C. § 1367(c). This timely appeal ensued. We have appellate jurisdiction notwithstanding the remand. The rule is that when a district court enters a final judgment on all the federal claims then pending in a civil action and contemporaneously remands all remaining claims to a state court, immediate appellate review of that collateral order is available. See Christopher v. Stanley-Bostitch, Inc., 240 F.3d 95, 99 (1st Cir.2001) (per curiam). The applicable standard of review is familiar. We appraise a grant of summary judgment de novo. Galloza v. Foy, 389 F.3d 26, 28 (1st Cir.2004). We are not wed to the district court’s rationale but, rather, may affirm its order on any independent ground made manifest by the record. Houlton Citizens’ Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999). To warrant affirmance of an order for summary judgment, the record must disclose no genuine issue as to any material fact and show conclusively that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). An issue is genuine if, on the evidence presented, it “may reasonably be resolved in favor of either party” at trial. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). By like token, a fact is material if it “possess[es] the capacity to sway the outcome of the litigation under the applicable law.” Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997) (internal quotation marks omitted). In the final analysis, then, “[t]he nonmovant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists.” Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006). In applying these tenets, we take the facts in the light most hospitable to the nonmovant and draw all reasonable inferences in that party’s favor. Galloza, 389 F.3d at 28. When doing so, however, we give no weight to conclusory allegations, unsupported conjecture, or free-wheeling invective. Id. This is a rifle-shot appeal: the only assignment of error advanced by the Allens is that the district court blundered in concluding that they had not adduced facts sufficient to survive summary judgment on their equal protection claim against the Town. That theory runs along the line that the Allens constitute a “class of one,” impermissibly singled out for unfavorable treatment by the Town. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). Such a claim is cognizable when—and only when—a “plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Id. At the summary judgment stage, of course, this allegation must be backed by competent evidence. The Allens maintain that they have offered probative evidence on all the elements that are necessary to forge such a cause of action. The district court rejected the Allens’ importunings: it concluded that while the Allens had presented a plethora of evidence concerning a number of other landowners, they had failed to show that these landowners were similarly situated to them. The main thrust of the Allens’ appeal is the claim that the district court “erred in placing [a] burden on the Allens [that] should have been placed upon the moving party” with respect to this issue. Appellants’ Br. at 20. In evaluating this argument, we do not write on a pristine page. Although “[t]he formula for determining whether individuals or.entities are ‘similarly situated’ for equal protection purposes is not always susceptible to precise demarcation,” Barrington Cove Ltd. P’ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir.2001), the case law makes clear that the burdens of production and persuasion must be shouldered by the party asserting the equal protection violation. Thus, “[plaintiffs claiming an equal protection violation must first identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently.” Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir.2006) (emphasis in original) (internal quotation mark omitted). The Allens also argue that, regardless of the allocation of burdens, the district court demanded more of them than the law allows. In their view, the degree of similarity between their situation and the situations of the landowners whom they identified as comparators was, on the evidence adduced, a question of material fact that should have been left to a jury. This argument cannot withstand scrutiny. To be sure, the ultimate determination as to whether parties are similarly situated is a fact-bound inquiry and, as such, is normally grist for the jury’s mill. But that does not mean that every case, regardless of the proof presented, is a jury case. To carry the burden of proving substantial similarity, “plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves.” Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.2006). While the applicable standard does not require that there be an “[e]xact correlation,” Tapalian v. Tusino, 377 F.3d 1, 6 (1st Cir.2004), there must be sufficient proof on the relevant aspects of the comparison to warrant a reasonable inference of substantial similarity. Thus, the proponent of the equal protection violation must show that the parties with whom he seeks to be compared have engaged in the same activity vis-a-vis the government entity without such distinguishing or mitigating circumstances as would render the comparison inutile. See Perkins v. Brigham & Women’s Hosp., 78 F.3d 747, 751 (1st Cir.1996). The “similarly situated” requirement must be enforced with particular rig- or in the land-use context because zoning decisions “will often, perhaps almost always, treat one landowner differently from another.” Olech, 528 U.S. at 565, 120 S.Ct. 1073 (Breyer, J., concurring). Given this template, virtually every zoning decision— in the absence of a sensible limiting principle—would be a candidate to find its way to federal court in the guise of an equal protection claim. Cf. Creative Env’ts, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir.1982) (warning that “[e]very appeal by a disappointed developer from an adverse ruling by a local ... planning board necessarily involves some claim that the board exceeded, abused or ‘distorted’ its legal authority in some manner” and can be given a constitutional label) (emphasis in original). The “similarly situated” requirement furnishes the limiting principle that guards against such a devolution. This requirement demands more than lip service. It is meant to be “a very significant burden.” Discovery House, Inc. v. Consol. City of Indianapolis, 319 F.3d 277, 283 (7th Cir.2003); see Creative Env’ts, 680 F.2d at 823 (explaining that it is not enough to give land use “claims constitutional labels such as ‘due process’ or ‘equal protection’ in order to raise a substantial federal question under section 1983”). It is inadequate merely to point to nearby parcels in a vacuum and leave it to the municipality to disprove conclusory allegations that the owners of those parcels are similarly situated. Seen against this background, “a court can properly grant summary judgment where it is clear that no reasonable jury could find the similarly situated prong met.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir.2001); see McDonald v. Vill. of Winnetka, 371 F.3d 992, 1002 (7th Cir.2004). That principle may apply even though, as in this case, the plaintiffs have presented copious evidence concerning a multiplicity of possible comparisons. See, e.g., Bell v. Duperrault, 367 F.3d 703, 708 (7th Cir.2004); cf. Barrington Cove, 246 F.3d at 8-9 (upholding grant of Rule 12(b)(6) motion to dismiss when plaintiff failed to establish similarity with “reasonable particularity” and the facts alleged suggested “entirely reasonable” grounds for disparate treatment). With this framework in place, we return to the case at hand. The Allens emphasize that they are subject to the same zoning and environmental strictures as their neighbors and argue that any material discrepancy in outcomes must, a fortiori, be a result of unequal application of the law. But casting the argument in those terms oversimplifies the analysis and fails to account for the fact that “[v]arious factual traits, circumstantial nuances, and peculiarities can set entities apart, rendering them, by virtue of their differences, amenable to disparate treatment.” Racine Charter One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677, 681 (7th Cir.2005). The burden that a class of one plaintiff must carry at the summary judgment stage is considerably heavier than a mere showing that others have applied, with more auspicious results, for the same benefit that he seeks. See Jennings v. City of Stillwater, 383 F.3d 1199, 1214 (10th Cir.2004); see also Clubside, 468 F.3d at 159 (describing a plaintiffs burden at summary judgment in a class of one case as “more stringent than that used at summary judgment in the employment discrimination context”). Were the law otherwise, the federal court would be transmogrified into a supercharged version of a local zoning board—a zoning board on steroids, as it were. Thus, the Allens—in order to show that other parties were similarly situated to them—needed to adduce evidence sufficient to establish factual as well as regulatory similarity. Close perscrutation of the record readily indicates that they failed to fulfill this obligation. We explicate this conclusion by specific reference to the four principal instances upon which the Allens rely in their effort to show that the Town singled them out for disparate treatment. First, the Allens lament that the town counsel informed them that, due to their undersized lot, they would be required to seek a variance or special permit as a precondition to proceeding with the construction of their planned compound. They contrast this with the Town’s issuance of a building permit to Newman for her undersized lot without first requiring a similar dispensation from the zoning board. This comparison is inapt; the scale of the two projects was dramatically different. The Allens’ proposed improvements were much more ambitious than those undertaken by Newman, and materially different projects may be treated differently by zoning or planning boards without raising constitutional concerns. In this instance, it was not irrational for a municipality to conclude that a proposal to relocate an existing residence while expanding the footprint by 90 square feet (as Newman desired) should be treated differently than a proposal involving the construction of a brand-new 3,000-square-foot structure, the substantial expansion of an existing building, and the installation of a large pool and deck area. See Campbell v. Rainbow City, 484 F.3d 1306, 1316 n. 8 (11th Cir.2006) (noting that the degree of non-conformity with a zoning rule is a valid basis for classifying properties as not similarly situated); Barstad v. Murray County, 420 F.3d 880, 886 (8th Cir.2005) (distinguishing the expansion of an existing use from the construction of a new facility); see also Bell, 367 F.3d at 707-08 (observing that the construction of new structures may be dissimilar from the replacement of existing structures). This is especially true in a community which, like Truro, has a zoning rule that allows for the issuance of a building permit without leave from the zoning board when the building commissioner determines that a proposed change will “not increase the nature or extent of the nonconformity.” Truro Zoning Bylaw § VII.B.2. We add a coda. In the land-use context, timing is critical and, thus, can supply an important basis for differential treatment. Since zoning bylaws, environmental standards, and licensing criteria may change over time, courts must be sensitive to the possibility that differential treatment—especially differential treatment following a time lag—may indicate a change in policy rather than an intent to discriminate. See Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir.2002). Consequently, the most reliable comparisons are likely to be from roughly the same time frame. There is reason to think that temporal disparities may be relevant here. Newman received her building permit in 1998, whereas the Allens were referred to the zoning board in 2002. Moreover, Landis (also the owner of an undersized lot), constructed a 750-square-foot addition to her home only after obtaining a special permit from the zoning board in 2003. This chronology weakens the inference that Newman and the Allens are fair congeners. A second exemplar put forth by the Allens involves the Truro Conservation Commission. The Commission determined that the Allens’ property rests on a coastal dune. The Allens contrast this designation with the Town’s designation of Newman’s abutting property as being located on a coastal bank. The difference in nomenclature is not inconsequential; the presence of a coastal dune imports stringent environmental safeguards and building restrictions. Among other things, the designation negates a landowner’s ability to build on a solid foundation rather than on pilings (a course that the Allens wished to pursue) and adversely affects the landowner’s right to install certain types of septic systems. Once again, the Allens’ plaint is without merit. While it is true that the Town allowed Newman to proceed on the basis that her property was situated on a coastal bank and, thus, could be constructed with a crawl-space drainage system rather than on pilings, the Town’s subsequent conduct has been consistent with its treatment of the Allens. In particular, the Landis, Sexton, and Perry additions all have been required to employ pilings as opposed to solid foundations. Because the Town’s opposition to the Allens’ efforts to build on a solid foundation is in no way anomalous or inconsistent, the Allens are not part of a class of one vis-á-vis the “coastal dune” designation. By definition, a class of one is not a class of many. Cf. Campbell, 434 F.3d at 1317 (explaining that a class of one suit cannot be maintained when similar burdens have been imposed on other individuals). As a third exemplar, the Allens offer some desultory charges that the Town has gone to a Massachusetts state court to appeal an approval that they received from the Massachusetts Department of Environmental Protection (DEP) regarding a proposed septic system. They aver that this is an instance of unequal treatment because the Town has not appealed such an approval in any other case. This is whistling past the graveyard. The Allens do not offer a shred of evidence to support the allegation of disparate treatment; for aught that appears, there never had been a comparable case. Given this dearth of evidence, we find that the wrangling over the septic system does not reveal any arbitrary divergence from the Town’s conduct toward other similarly situated individuals. See Bell, 367 F.3d at 708 (noting that “speculation and conjecture” will not allow a class of one plaintiff to survive summary judgment). The Allens’ final exemplar involves floats. They say that the Town refused to license floats designed to extend their pier despite having licensed such floats for the nearby yacht club. The district court rejected this argument, noting that the Allens’ request for licensure, unlike that of the yacht club, had been denied at an earlier time by the DEP and the Army Corp of Engineers. See Cordi-Allen, 2006 WL 2033897, at *8. On appeal, the Allens have offered no developed argumentation elaborating the claim that they are similarly situated to the yacht club. We could reject their claim on this ground alone. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (holding that “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived”). Here, moreover, the record reflects a wholly rational explanation for the disparate treatment. Thus, the Allens plainly have not carried their burden of demonstrating that they are similarly situated to the yacht club. See Bell, 367 F.3d at 708. Before concluding our analysis, we add a postscript. At oral argument in this court, the Allens protested that a strict interpretation of the “similarly situated” requirement—an interpretation to which we have adhered in this and earlier cases—would limit class of one land-use claims to circumstances involving attempts to build identical structures on identical parcels. This criticism is unjustified. The test, properly understood, does not demand identically. It simply requires that class of one plaintiffs demonstrate that their comparators are similar in relevant respects. See Barrington Cove, 246 F.3d at 8. The Allens have fallen well short of that mark. We need go no further. The Olech class of one suit serves an important but relatively narrow function. It is not a vehicle for federalizing run-of-the-mine zoning, environmental, and licensing decisions. In this instance, the Allens — with their eyes wide open — purchased an undersized lot in an ecologically sensitive area. They could not reasonably have expected to have a free hand in developing the property. While the record reflects that the Town has not been particularly accommodating, the Allens have not presented probative evidence sufficient to create a genuine issue of material fact as to the existence of disparate treatment between them and other similarly situated persons. Accordingly, the district court did not err in entering summary judgment for the Town on the equal protection claim. Affirmed. Costs shall be taxed in favor of the Town. . The Town subsequently took the tidelands around the pier in an eminent domain proceeding. The Allens have retained an easement encompassing the pier. . The Town insists that it is not a proper target for this claim because a municipality cannot be held liable for the acts of its agents or employees under a respondeat superior theory. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Relatedly, it argues that the Allens have failed to allege a municipal custom or policy underlying the putative equal protection violation. See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 120-24, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). But the Allens have alleged a series of purportedly discriminatory acts undertaken by a number of different municipal officials, some of whom are high-ranking. Consequently, we assume, for argument’s sake, that the Town is a proper defendant. . We need not reach any question of whether, post-Olech, a plaintiff must demonstrate malice or bad faith intent to injure when there is no discrimination based on typically impermissible categories. See Bizzarro v. Miranda, 394 F.3d 82, 88 (2d Cir.2005). For present purposes, it suffices to say that the Allens fail to satisfy the "similarly situated” requirement. See text infra. . We note that the degree of similarity required may be relaxed somewhat if the plaintiff has presented evidence of "personal malice and 'bad faith' retaliation.” Tapalian, 377 F.3d at 7. Thus, while we do not reach whether a class of one suit may be maintained in the absence of malice, see supra note 3, evidence of malice is always relevant. . The Allens have stoutly resisted this ultimatum; they have never applied for a variance or special permit. . The Allens point to correspondence in which the town counsel suggested that even had the Allens proposed a less ambitious project, they would still have been required to seek special permission from the zoning board. The Allens concede, however, that they never submitted a scaled-down proposal. Consequently, we need not speculate about what might have happened if they had. See Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 705 (1st Cir.1994) (noting that federal courts do not deal in hypothetical questions). . The district court found this claim to be time-barred, but proceeded to resolve it on the merits. See Cordi-Allen, 2006 WL 2033897, at *6-7. We take no view of the time bar issue, preferring instead to address the merits. . The Allens malee much of the fact that the Sextons have been allowed to keep a preexisting solid retaining wall. We think that fact is of no moment. The relevant point of analysis is new home construction. . In any event, the record reflects that the Town has succeeded in persuading the DEP that the approval was granted in error.

Carcieri v. Kempthorne

EN BANC OPINION LYNCH, Circuit Judge. The en banc court has convened to consider a series of issues concerning the relative powers of the federal Secretary of the Interior, the State of Rhode Island, and the Narragansett Tribe over a parcel of land taken into trust and designated for Indian housing. The case is in many ways a proxy for the State’s larger concerns about its sovereignty vis-a-vis federal and tribal control over lands within the state. In 1998, the Secretary of the Interior agreed to take into unreserved trust for the Tribe’s benefit a 31- or 32-acre parcel in Charlestown, Rhode Island (the Parcel). Then-Secretary Gale Norton cited her powers under section 5 of the Indian Reorganization Act of 1934 (IRA), 25 U.S.C. § 465. The Tribe had purchased the Parcel in 1991. Under the Indian Commerce Clause of the Constitution, U.S. Const, art. I, § 8, cl. 3, Congress has plenary power to legislate on the subject of Indian tribes. Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989). As a result, Congress may preempt the operation of state law in Indian country. See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983). Under section 5 of the IRA, Congress has authorized the Secretary “in his discretion” to acquire and take into trust for Indian tribes “any interest in lands ... within or without existing reservations ... for the purpose of providing land for Indians.” 25 U.S.C. § 465. The Secretary may take land into trust for these purposes, as was done here, without the consent of the State. The Secretary’s acquisition of land into trust for Indians results in the land becoming “Indian country.” 18 U.S.C. § 1151. Generally speaking, primary jurisdiction over land that is Indian country rests with the federal government and the Indian tribe inhabiting it, not with the state. Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 527 n. 1, 118 S.Ct. 948, 140 L.Ed.2d 30 (1988). To be more precise, “[w]hen on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State’s regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest.” When, however, state interests outside the reservation are implicated, States [sometimes] may regulate the activities even of tribe members on tribal land.... Nevada v. Hicks, 533 U.S. 353, 362, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (citation omitted) (quoting White Mountain Apache Tribe v. Bracket, 448 U.S. 136, 144, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980)). Recognizing a conflict between state jurisdiction and the federal interest in encouraging tribal self-governance, the Secretary’s regulations under the IRA provide that “none of the laws ... of any State ... limiting, zoning or otherwise governing, regulating, or controlling the use or development of any real or personal property ... shall be applicable” to land held in trust for a tribe by the United States. 25 C.F.R. § 1.4(a). This provision is subject to the Secretary’s power in specific cases or areas to make applicable those local laws determined to be in the best interest of the Indian owners “in achieving the highest and best use of [the] property.” Id. § 1.4(b). Concerned over the loss of sovereignty over the Parcel and what it may portend for the future, the State, ‘its Governor, and the town of Charlestown (collectively, the State), sued the Secretary of the Interior, now Dirk Kempthorne, and the Regional Director of the Bureau of Indian Affairs (BIA), Franklin Keel, in federal court. See Carcieri v. Norton, 290 F.Supp.2d 167 (D.R.I.2003). Having exhausted administrative remedies, the State brought suit under the Administrative Procedure Act, 5 U.S.C. § 702, seeking review of the Secretary’s decision to take the Parcel into trust. Id. at 169, 172. The State’s case asserts three major theories. First, the State argues that the IRA does not authorize the Secretary to take land into trust for any tribe, including the Narragansetts, that first received federal recognition after June 18, 1934, the effective date of the IRA. Second, the State argues that the 1978 Rhode Island Indian Claims Settlement Act (the Settlement Act), 25 U.S.C. §§ 1701-1716, restricts the Secretary’s authority to place the Parcel into trust pursuant to the IRA. Third, the State argues that the Constitution prohibits this exercise of authority by the Secretary. As to the IRA, the State argues that the Narragansetts do not meet the definition of “Indian” contained in 25 U.S.C. § 479. The pertinent definition recognizes, inter alia, “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction,” 25 U.S.C. § 479 (emphasis added). The State reads “are members ... now under Federal jurisdiction” to plainly and literally mean the 1934 effective date of the IRA. The State thus contends that the Secretary has no authority under the IRA to take land into trust for any tribe that was not federally recognized in 1934. As a result, the State argues, the Secretary is precluded entirely from placing the Parcel into trust for the Narragansetts, who were not recognized as a tribe until 1983. Next, the State argues that the terms of the Settlement Act preclude the Secretary from placing the Parcel into trust because the Settlement Act is a later specific act of Congress that must be read to have explicitly and implicitly cabined the Tribe’s and the Secretary’s power as to the Parcel. The State argues that the Settlement Act bars the imposition of any trust. The State’s fallback position is that any trust must be restricted by the terms of the Settlement Act so that it is clear that state and local law apply to the Parcel, just as they do to the settlement lands. Finally, the State asserts various constitutional theories, with the common underpinning that the placing of thé Parcel into trust violates the State’s sovereignty. The State argues that the Indian Commerce Clause does not authorize the Secretary’s exercise of power and that the exercise violates the Tenth Amendment, as well as the Enclave and Admissions Clauses of the Constitution. The State also argues that section 5 of the IRA, 25 U.S.C. § 465, constitutes an unconstitutional delegation of legislative authority. We hold that the language of 25 U.S.C. § 479 does not plainly refer to the 1934 enactment date of the IRA. We find that the text is sufficiently ambiguous in its use of the term “now” that the Secretary has, under the Chevron doctrine, authority to construe the Act. We reject the State’s claim that we do not owe deference to the Secretary’s interpretation because he has inconsistently interpreted or applied section 479. The State’s evidence> of inconsistency is mixed and is not persuasive. The Secretary’s position has not been inconsistent, much less arbitrary. The Secretary’s interpretation is rational and not inconsistent with the statutory language or legislative history, and must be honored. Likewise, the Settlement Act neither explicitly bars by its terms the Secretary’s actions, norimplicitly repeals or constrains the Secretary’s authority under the IRA to place land into trust for the Tribe. While the State apparently failed to anticipate this particular problem at the time of the settlement, the Settlement Act did specifically contemplate the event of federal recognition of the Tribe and did not restrict the Secretary’s power, should the Tribe be recognized, to take into trust land outside of the settlement lands. We are not free to reform the Act. If aggrieved, the State must turn to Congress. The State’s arguments based on allocations of power under the U.S. Constitution also do not prevail. They do, however, underscore the seriousness of the State’s concern about the abrogation of state sovereignty at stake here. I. In order to understand the nature of the controversy and the consequences of this decision, a brief recounting of the history of relations between the State and the Tribe is required. Further background can be found in the district court’s opinion, Carcieri, 290 F.Supp.2d 167, as well as the opinions previously issued in the decades-long disputes between the State and the Tribe, see Narragansett Indian Tribe v. Rhode Island (Narragansett III), 449 F.3d 16 (1st Cir.2006) (en banc); Narragansett Indian Tribe v. Narragansett Elec. Co. (Narragansett II), 89 F.3d 908 (1st Cir.1996); Rhode Island v. Narragansett Indian Tribe (Narragansett I), 19 F.3d 685 (1st Cir.1994). In 1880, the State acquired the majority of the Tribe’s lands. In 1934, the Tribe organized as a state-chartered corporation. In 1975, the Tribe sued to recover its lands, arguing that the State had acquired the lands in violation of the Indian Nonin-tercourse Act, 25 U.S.C. § 177. The Tribe claimed that this violation rendered void the transfer of title to the lands. This cloud on title prompted the State to enter into settlement negotiations with the Tribe, which led in 1978 to an agreement embodied in a Joint Memorandum of Understanding (JMOU). Under the JMOU, the Tribe would receive 1800 acres of “settlement lands,” half of which were provided by the State and half of which were purchased with federal funds. The State agreed to create an Indian-controlled corporation to hold the settlement lands in trust for the Tribe, to exempt the settlement lands from local taxation, and to help secure the federal legislation necessary to implement the agreement. In exchange, the Tribe abandoned its claims of aboriginal title and its claims to lands in the state other than the settlement lands. In turn, Congress approved and codified the agreement in the Settlement Act. The Settlement Act provided that “the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.” Id. § 1708(a). Five years later, in 1983, the Secretary granted the Tribe official federal recognition. See Final Determination for Federal Acknowledgment of- Narragansett Indian Tribe of Rhode Island, 48 Fed.Reg. 6177 (Feb. 10, 1983). Following that recognition, in 1985, Rhode Island amended the pertinent state statute to permit the conveyance of the settlement lands directly to the Tribe, explicitly preserving the State’s jurisdiction over the settlement lands, consistent with the Settlement Act, 25 U.S.C. § 1708(a). See R.I. Gen. Laws § 37-18-13(b). The holding company conveyed the settlement lands to the Tribe, and three years later, the Tribe conveyed the settlement lands to the BIA as trustee. The trust deed confirmed the application of state law to the settlement lands, as provided in 25 U.S.C. § 1708(a). The BIA continues to hold the settlement lands in trust for thé Tribe, subject to this congres-sionally-enacted restriction that state law applies. See Narragansett I, 19 F.3d at 689, 695 n. 8. Significantly, in our earlier en banc decision in Narragansett III, we held that the language of section 1708(a) trumped any residual tribal sovereignty over the settlement lands, under which the Tribe had refused to comply with certain state laws. See 449 F.3d at 26. Then, in 1991, the tribal housing authority purchased the Parcel in fee simple, acquiring title through purchase from a private developer. The Parcel was part of the Tribe’s aboriginal lands claimed in the 1976 lawsuit. Under the Settlement Act, the Tribe had thus relinquished aboriginal title to the Parcel, but the Parcel is not part of the 1800 acres of settlement lands. It is adjacent to the settlement lands, across a town road. In 1992, the Housing Authority transferred the Parcel to the Tribe with a deed restriction that the Parcel be placed in trust with the BIA for the purpose of providing housing. A dispute soon arose over whether development of the Parcel had to comply with local law. The Tribe began construction on the planned housing project without obtaining a building permit from the Town or the State’s approval of the individual sewage disposal systems. The Tribe essentially took the position that once it had purchased the Parcel, the land had become tribal land, and the Tribe’s inherent sovereignty meant that the Parcel was exempt from local law. The State disagreed and filed suit in federal court to enjoin the Tribe. See Narragansett Indian Tribe v. Narragansett Elec. Co., 878 F.Supp. 349 (D.R.I.1995). Ultimately, the Tribe lost that litigation. See Narragansett II, 89 F.3d at 922. The Tribe had sought to solve the issue of the applicability of state law to the Parcel by applying to the Secretary in 1993 to have the Parcel taken into trust under section 5 of the IRA. The Secretary’s determination of whether to do so was stayed pending the resolution of the federal court litigation. After the litigation was resolved against the Tribe by this court in 1996, id. at 922, the Tribe submitted a second application to the Secretary. The Tribe filed this updated application with the Secretary in July 1997. In determining whether to take lands into trust, the Secretary follows a regulatory process set forth at 25 C.F.R. part 151, which requires consideration of several factors. If, as here, the land is off reservation, additional criteria apply. See 25 C.F.R. § 151.11. Generally, the farther from a reservation the land is, the greater the scrutiny the Secretary gives to the justification of anticipated benefits from the acquisition. See id. § 151.11(e); see also M.J. Sheppard, Taking Indian Land into Trust, 44 S.D. L.Rev. 681, 686 (1999). On March 6, 1998, the BIA notified the State of the Secretary’s intent to take the Parcel into trust for the Tribe. The State appealed the decision to the Interior Board of Indian Appeals (IBIA). The State argued, inter alia, that the Settlement Act prohibited this action by the Secretary, and that in taking the land into trust without the State’s consent, the Secretary had acted unconstitutionally. The IBIA affirmed the BIA’s determination on June 29, 2000. Town of Charlestown v. E. Area Dir., Bureau of Indian Affairs, 35 I.B.I.A. 93, 106 (2000). It noted it had no jurisdiction over the claims of unconstitutionality. Id. at 97. The State then instituted this action in federal court. The district court, in a comprehensive decision, rejected the State’s claims. See Carcieri, 290 F.Supp.2d 167. A divided panel of this court affirmed. Carcieri v. Norton, 423 F.3d 45 (1st Cir.2005). The en banc court granted rehearing and withdrew the panel opinion. As described above and recounted in our en banc decision in Narragansett III, 449 F.3d at 18-21, for several decades the relationship between the Tribe and the State has been fraught with tension. The State’s short-term concerns in this case have to do with whether the particular project will conform with state and local law. The State also has concerns that once land is taken into trust, there will be very few mechanisms, other than negotiation with the Tribe or appeal to the Secretary’s authority under 25 C.F.R. § 1.4(b), by which the State may secure compliance with state and local laws. The State fears that the Tribe will convert or otherwise use the Parcel, or any future parcels that might be acquired and put into trust, for income-producing activities in which it normally would not be permitted to engage under state law. There has been federal litigation between state officials and the Tribe and its members over such activities. In 2003, the Tribe, seeking revenue, established on the settlement lands an Indian Smoke Shop that sold cigarettes without purchasing state cigarette stamps or collecting sales taxes then paid to the State, as required by state law. The State Police raided the smoke shop and initiated criminal prosecutions against tribe members. The Tribe sought a declaratory judgment in federal court asserting that its control over the smoke shop was an inherent function of tribal sovereignty that survived the Settlement Act, despite the explicit language in section 1708(a). We rejected that claim en banc. Narragansett III, 449 F.3d at 30-31. II. A. Standard of Review Technically, the claims at issue here are reviewed through the lens of an APA appeal under 5 U.S.C. § 706. Our review of such an appeal is de novo as to the district court’s conclusions. See Harvey v. Veneman, 396 F.3d 28, 33 (1st Cir.2005). The underlying issues remaining in the case are statutory and constitutional. Statutory issues are reviewed de novo by the courts, but subject to established principles of deference to the administering agency. Id. Constitutional claims are reviewed de novo. See Cousins v. Sec’y of Transp., 880 F.2d 603, 610 (1st Cir.1989) (en banc). B. The 1931 Indian Reorganization Act The State argues that the Secretary lacks authority to place the Parcel into trust under 25 U.S.C. § 465 since, under the definition of “Indian” in 25 U.S.C. § 479, that authority extends only to tribes that were both federally “recognized” and “under [Qederal jurisdiction” on June 18, 1934, the effective date of the IRA. The State presents a series of cascading arguments. First, the State argues that the plain language of section 479 is clear, and that under that plain language, the Tribe’s status is measured as of 1934. The State further argues that its interpretation of the statute is the only one consistent with the purposes and legislative history of the Act. Thus, the State argues that because the statute is unambiguous, deference to the Secretary is unwarranted. In any event, the State argues that even if deference might have been warranted, the Secretary’s current interpretation is not entitled to deference because it contradicts the Secretary’s practice in the more than seventy years since the passage of the IRA. 1. Chevron Analysis The Secretary has offered an interpretation of the IRA that permits trust acquisitions for tribes recognized and under federal jurisdiction at the time the request for a trust acquisition is made. A court reviewing an agency’s interpretation of a statute that it administers engages in a two-step analysis. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We must first consider “whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. If congressional intent is clear, we “must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. “[I]f the statute is silent or ambiguous with respect to the specific issue,” however, we must consider “whether the agency’s [interpretation] is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. (a) Whether Section 179 Is Ambiguous We begin our analysis with the statutory text. Rucker v. Lee Holding Co., 471 F.3d 6, 9 (1st Cir.2006). The language at issue is that contained in 25 U.S.C. § 479, which provides: The term “Indian” as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. One might have an initial instinct to read the word “now” in the statute as the State does, to mean the date of enactment of the statute, June 18, 1934. Congress certainly has used the word “now” in this way. See, e.g., Montana v. Kennedy, 366 U.S. 308, 312, 81 S.Ct. 1336, 6 L.Ed.2d 313 (1961) (interpreting the word “now” in a reenactment of an earlier act to refer to the initial date of enactment). Any such instinct quickly disappears upon further examination, however. This is not a case that can be resolved by looking to the plain meaning of the term “now” standing by itself. “Now” means “at the present time,” but there is ambiguity as to whether to view the term “now” as operating at the moment Congress enacted it or at the moment the Secretary invokes it. Indeed, Congress sometimes uses the word “now” to refer to a time other than the moment of enactment. See Difford v. Sec’y of Health & Human Servs., 910 F.2d 1316, 1320 (6th Cir.1990) (interpreting the word “now” in a disability-benefits termination provision to refer to the time of the hearing); see also Pierce v. Pierce, 287 N.W.2d 879, 882 (Iowa 1980) (noting that the phrase “now havfing] jurisdiction” in the Uniform Child Custody Jurisdiction Act “refers to the time of the filing of the petition”); cf. Williams v. Ragland, 567 So.2d 63, 65-66 (La.1990) (declining to interpret “now serving” in a mandatory judicial retirement provision to refer to the date of enactment). There also are other layers of ambiguity. Given that the word “now” does not itself have a clear meaning, we must look to context. Here, the context is equivocal. On the one hand, the State points' to 25 U.S.C. § 472, another provision of the IRA, which refers to “positions maintained, now or hereafter, by the Indian Office.” The State argues that this use of “now” unambiguously refers to the date of enactment and that had Congress wanted to include later-recognized tribes in section 479, it would have similarly added the words “or hereafter.” On the other hand, the Secretary points out that section 479 itself specifies the date of “June 1, 1934” as the relevant date for determining eligibility based on “residing within the present boundaries of any Indian reservation.” The Secretary thus counters that had Congress wanted to require recognition of a tribe on the date of enactment, it would have specified that date, rather than using the term “now.” See also 25 U.S.C. § 478 (requiring elections to be held “within one year after June 18, 1934”). Hence, “now” might mean “now or hereafter” or it might mean “June 18, 1934”; either would be consistent with some other part of the statute. Policy does not provide an obvious answer either: each side has a plausible explanation that policy considerations favor its interpretation. ' The State argues that the principal, perhaps exclusive, concern of the 1934 statute was with remedying the perceived ills of the prior practice of allotment. See Kahawaiolaa v. Norton, 222 F.Supp.2d 1213, 1220 n. 10 (D.Haw.2002). Because the IRA ended allotments in 1934, see 25 U.S.C. § 461, they would not have affected later-recognized tribes, and hence there would have been no reason to include such tribes within the ambit of the statute. The Secretary takes the view that the Act was intended not only to remedy past wrongs, but also to set a template for the future that would encourage the strength and stability of tribal communities. Based on this view, it would make no sense to distinguish among tribes based on the happenstance of their federal recognition status in 1934. The Secretary’s view is buttressed by the fact that the Act contains a number of provisions that have,nothing to do with land consolidation. See id. § 472 (Indian employment preference); id. § 476 (tribal organization). The State reads United States v. John, 437 U.S. 634, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978), to indicate that the Supreme Court had an initial interpretation of the Act that coincides with the State’s interpretation. It is unclear if the Court had any such interpretation, and in any event, we find that John is not controlling here. In John, the Fifth Circuit had found that the Mississippi Choctaws were not eligible for benefits under the IRA because the tribe had not been recognized in 1934. United States v. John, 560 F.2d 1202, 1212 (5th Cir.1977); see also United States v. Miss. Tax Comm’n, 505 F.2d 633, 642 (5th Cir.1974). The Supreme Court reversed, relying on a different clause in the statute and finding the tribe eligible for benefits under the IRA, but on the basis that its members were “persons of one-half or more Indian blood.” 437 U.S. at 650, 98 S.Ct. 2541. Along the way, the Supreme Court stated: The 1934 Act defined “Indians” not only as “all persons of Indian descent who are members of any recognized [in 1934] tribe now under Federal jurisdiction,” and their descendants who then were residing on any Indian reservation, but also as “all other persons of one-half or more Indian blood.” Id. (alteration in original) (quoting 25 U.S.C. § 479 (1976)). The bracketed addition may be read to support the State’s position, but the opinion contains no analysis on this point, and the Court rested its holding on an entirely separate provision of the Act, one not at issue here. We are mindful that the Supreme Court’s musings may warrant our attention. See Rossiter v. Potter, 357 F.3d 26, 31 n. 3 (1st Cir.2004); but see P. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L.Rev. 1249 (2006). In this case, however, given John’s complete lack of analysis of the provision that concerns us, the relevant language seems to us to fall short even of being dicta. Having found both text and context to be ambiguous, we turn to legislative history. Despite the State’s arguments to the contrary, that history also does not clearly resolve the issue. Indeed, it suggests a reading of the phrase “now under federal jurisdiction” different from that offered by any of the parties, and is thus another source of ambiguity. The congressional record establishes that the phrase “now under federal jurisdiction” was specifically added to the statutory definition of “Indian,” a term defined separately from “tribe.” See 25 U.S.C. § 479. The phrase was suggested by then-Commissioner of Indian Affairs John Collier in response to the concern that not all self-identified Indians deserved to benefit from the Act: The Chairman. But the thing about it is this, Senator; I think you have to sooner or later eliminate those Indians who are at the present time — as I said the other day, you have a tribe of Indians here, for instance in northern California, several so-called “tribes” there. They are no more Indians than you or I, perhaps. I mean they are white people essentially. And yet they are under the supervision of the Government of the United States, and there is no reason for it at all, in my judgment. Their lands ought to be turned over to them in severalty and divided up and let them go ahead and operate their own property in their own way. Senator O’Mahoney. If I may suggest, that could be handled by some separate provision excluding from the benefits of the act certain types, but must have a general definition. Commissioner Collier. Would this not meet your thought, Senator: After the words “recognized Indian tribe” in line 1 insert “now under Federal jurisdiction”? That would limit the act to the Indians now under Federal jurisdiction, except that other Indians of more than one-half Indian blood would get help. To Grant to Indians Living Under Federal Tutelage the Freedom To Organize for Purposes of Local Self-Government and Economic Enterprise: Hearing on S.2755 and S.3645 Before the S. Comm. on Indian Affairs, 73d Cong. 266 (1934). Commissioner Collier offered the phrase as a limitation, but it is not clear whether it was intended as a temporal limitation. If the committee was concerned about the bona fides of an individual’s status as an Indian and wanted to use the fact of federal jurisdiction to measure those bona fides, then there would have been no reason to distinguish between those under federal jurisdiction in 1934 and those who later came under federal jurisdiction. In fact, the colloquy quoted above suggests that the committee sought to exclude some Indians already “under the supervision of the Government of the United States.” If the purpose was to exclude those who might later be dropped from federal jurisdiction, it would make more sense to measure status as of the date benefits were sought, not as of the date of enactment of the statute. Indeed, the colloquy and the remainder of the hearing suggest that the committee was focused on the issue of individual Indians who received benefits from the federal government on the basis of a limited heritage and without acting as a part of a tribal community. Earlier in the session, the chairman had raised the case of a “former Vice President of the United States,” who was apparently receiving Indian benefits, asking, “Why should the Government of the United States be managing the property of a lot of Indians who are practically white and hold office and do everything else, but in order to evade taxes or in order to do something else they come in under the Government supervision and control?” Id. at 264. Thus, although none of the parties have raised this, it may well be that the phrase “now under federal jurisdiction” was intended to modify not “recognized Indian tribe,” but rather “all persons of Indian descent.” So interpreted, the purpose of the phrase might well have been to grandfather in those individuals already receiving federal benefits, but' to otherwise insist that in the future, only individuals with at least one-half Indian blood would qualify. In that case, the limitation may well have been a temporal one, but the limitation, temporal or not, may have been intended to affect only the Secretary’s authority to act for the benefit of an “individual Indian,” not an “Indian tribe.” See 25 U.S.C. § 465 (“Title to any lands or rights acquired pursuant to this Act ... shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired .... ” (emphasis added)). After all, while Congress may have been concerned about misdirecting resources to individuals who were only Indians in name, the same concern would not apply to federally recognized tribes, regardless of the date of federal recognition. In any event, this piece of legislative history amply supports the view that the statute is at least ambiguous and leaves room for administrative interpretation. The other relevant piece of legislative history, heavily relied upon by the State, is the statement of Representative Edgar Howard, a cosponsor of the IRA: For purposes of this act, [the definitional section] defines the persons who shall be classed as Indian. In essence, it recognizes the status quo of the present reservation Indians and further includes all other persons of one-fourth Indian blood. The latter provision is intended to prevent persons of less than one-fourth Indian blood who are already enrolled members of a tribe or descendants of such members living on a reservation from claiming financial and other benefits of the act. Obviously the line must be drawn somewhere ... Kahawaiolaa, 222 F.Supp.2d at 1220 n. 10 (emphasis omitted) (quoting Congressional Debate on Wheeler-Howard Bill (1934) in III The American Indian and the United States (1973)) (internal quotation marks omitted). The State interprets the reference to “status quo” as supporting its view that federal recognition of tribes was essentially frozen for purposes of the IRA in 1934. This seems to be a misinterpretation of the quote, however. Representative Howard did not say that the Act would “maintain” or “preserve” the status quo; rather he stated that the Act would “recognize” it. Moreover, the quote refers not to Indian tribes, but to “reservation Indians.” Thus, in context, this sentence is more likely a reference to that portion of the definition of an Indian, not at issue here, that covers “all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation.” 25 U.S.C. § 479. This provision, with its explicit reference to 1934, covered those people of Indian descent then living on a reservation, without regard to whether they might independently qualify as Indians under the Act. In that sense, the definition accepted and “recognized” the status quo of the reservations. Thus, we find from the text, context, and legislative history that section 479 is at least ambiguous as to whether the phrase “now under federal jurisdiction” disqualifies tribes that were federally recognized after 1934, such as the Narragansett Tribe, from the benefits of the IRA. (b) Whether the Secretary’s Interpretation Is Permissible As we have found the meaning of section 479 to be ambiguous, we must consider whether the Secretary’s interpretation is “permissible.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. An interpretation is permissible if it is “rational and consistent with the statute.” NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123, 108 S.Ct. 413, 98 L.Ed.2d 429 (1987). The Secretary’s construction meets this test. As discussed above, it is reasonable and is consistent with the language and legislative history of the IRA. It also is consistent with the policy of the IRA, which, as we have indicated, may permissibly be viewed not only as intending to reverse the government’s allotment policy, but also as affirmatively conferring benefits on Indians, including Indian employment preferences and a statutory right to organize and adopt governing documents. We therefore reject the State’s argument that the text and purposes of the IRA prohibit the Secretary’s interpretation of section 479. Rather, we find that the Secretary’s construction of section 479 as allowing trust acquisitions for tribes that are recognized and under federal jurisdiction at the time of the trust application is entitled to deference. 2. Alleged Inconsistency of the Secretary’s Interpretation The State makes a separate argument on which it heavily relies. It argues that the Secretary’s interpretation of section 479 to allow trust acquisitions for tribes not federally recognized in 1934 represents a change in position as to the eligibility of tribes for IRA benefits, and that this interpretation therefore is not entitled to deference. The State relies particularly on historical practice, and says that the Secretary has never, or at least has hardly ever, identified as IRA-eligible a tribal entity that was not federally recognized in 1934 and does not meet the half-blood test. The evidence is limited with respect to whether the Secretary’s interpretation of section 479 of the IRA has been consistent over the past seventy-three years. The consistency of the Secretary’s construction is supported, though not directly, by a regulation promulgated by the Secretary in 1980. The regulation, found at 25 C.F.R. § 151.2, sets forth definitions that pertain to the regulations governing trust acquisitions. 25 C.F.R. § 151.2(b) defines a tribe that may be eligible for a trust acquisition as “any Indian tribe, band, nation, pueblo, community, ranchería, colony, or other group of Indians ... which is recognized by the Secretary as eligible for the special programs and services from the Bureau of Indian Affairs.” The regulation does not distinguish between tribes recognized before June 18, 1934 and those recognized thereafter. Rather, it suggests that whether or not a group of Indians is considered a tribe, and therefore may be eligible to have land taken into trust, turns on a tribe’s federal recognition status at the time a trust acquisition is requested. Moreover, the Secretary’s proffered interpretation of “now” as meaning “today” is consistent with regulations implementing other provisions of the IRA. For example, the regulation implementing 25 U.S.C. § 466, which directs the Secretary to regulate the operation and management of Indian forestry units, states that it applies to “any Indian tribe ... which is recognized as eligible for the special programs and services provided by the United States to Indians because of their- status as Indians.” 25 C.F.R. § 163.1. Similarly, the regulation implementing 25 U.S.C. § 476, which allows eligible Indian tribes to organize and adopt constitutions and bylaws, defines eligibility-in current terms: all Indian entities that have not voted to exclude themselves from the IRA and that are “included, or [are] eligible to be included, among those tribes ... recognized and receiving services from the [BIA]” are eligible to organize under section 476. 25 C.F.R. § 81.1. As to the Secretary’s trust acquisition practice, it is not seriously disputed that the Secretary has never rejected an application to take land into trust for a federally recognized tribe on the ground that the tribe was not recognized and under federal jurisdiction in 1934. Responding to the State’s allegations about whose trust acquisition applications have been granted, the Secretary and Indian amici have submitted to us lists of tribes that they assert were not federally recognized in 1934 for whom land has since been taken into trust. The State disputes this evidence, arguing that nearly all of the identified tribes either have no trust lands, are not “newly recognized” because they were under federal jurisdiction in 1934, or have obtained legislation from Congress specifically permitting trust acquisitions on their behalf. The State’s evidence of inconsistent practice is not persuasive. For example, although the State seems to concede that the Miccosukee Tribe was not recognized in 1934, it argues that the later trust acquisition for that tribe identified by Indian amici was made pursuant to specific statutory authorization, not section 465. But the statute to which the State points us, 25 U.S.C. §§ 1741-1750e, does not, itself authorize acquisition of the parcel identified by Indian amici. Rather, it authorizes acquisition of a different parcel. Indeed, in taking the parcel identified by Indian amici into trust, the Secretary explicitly relied on his authority under section 465. Turning to a different distinction, the State argues that eight of the tribes identified by Indian amici were recognized and under federal jurisdiction in 1934 because they previously had signed treaties with the United States. It is not self-evident that simply because a tribe had signed a treaty with the U.S. government it necessarily was recognized and under federal jurisdiction in 1934; recognition as intended in section 479 requires an ongoing government-to-government relationship between a tribe and the United States. See Cohen’s Handbook of Federal Indian Law § 3.02(3), at 138-40 (N.J. Newton et al., eds. 2005). Whether or not a treaty executed before 1934 has significance, however, the evidence is still that the Secretary has taken land into trust for tribes that did not appear to be federally recognized in 1934. We note two examples. The Secretary has taken land into trust for the Sault Ste. Marie Band of Chippewa Indians despite the Secretary’s position that, regardless of prior treaties, the Band was not federally recognized in 1934. The Sault Ste. Marie Band is a successor to some of the Chippewa tribes that had signed treaties with the United States between 1785 and 1855. In addition, in 1855 the Band had signed two treaties with the United States. Despite those treaties, however, by 1917 the Department of the Interior did not recognize the Band as an entity with which it had government-to-government relations. Opinion of Nat’l Indian Gaming Comm’n, The St. Ignace Parcel at 7 (July 31, 2006); see also City of Sault Ste. Marie v. Andrus, 532 F.Supp. 157, 161 (D.D.C.1980) (indicating that a period of non-recognition existed by stating that “although the question of whether some groups qualified as Indian tribes for purposes of IRA benefits might have been unclear in 1934, that fact does not preclude the Secretary from subsequently determining that a given tribe deserved recognition in 1934”). The State rejoins that the Department of the Interior cannot abrogate an Indian treaty. But the validity of the Department’s treatment of the Sault Ste. Marie Band’s status under the treaties is not ■ the issue before us. What is important is the Department’s position that the Band was not recognized and under federal jurisdiction in 1934. Id. at 16. Nevertheless, after 1934, the Secretary has invoked his section 465 authority to take land into trust for the Band. The Grand Traverse Band of Ottawa and Chippewa Indians provides a similar example. The Secretary has taken land into trust for the Grand Traverse Band, which the Department of the Interior ceased to recognize in 1872. The Grand Traverse Band signed the 1855 Treaty of Detroit with the United States. In 1872, however, the then-Secretary of the Interi- or severed the United States’ relationship with the Band and ceased to treat the Band as a federally recognized tribe. Grand Traverse Band of Ottawa & Chippewa Indians v. U.S. Attorney for the W. Dist. of Mich., 369 F.3d 960, 961 (6th Cir.2004); see also Grand Traverse Band of Ottawa & Chippewa Indians v. U.S. Attorney for the W. Dist. of Mich., 198 F.Supp.2d 920, 924 (W.D.Mich.2002) (“Between 1872 and 1980, the Band continually sought to regain its status as a federally recognized tribe.”). Yet; the Secretary has invoked his authority under section 465 to take twenty-one parcels of land into trust for the Band. The State also concedes that the Secretary appears to have taken land into trust for two tribes, the Tunica-Biloxi Indian Tribe and the Narragansetts themselves, that were not under federal jurisdiction in 1934 and for whom Congress has passed no specific act authorizing trust acquisitions. Even if we had no reason to doubt the State’s argument that the Secretary has not historically taken land into trust for tribes not recognized in 1934, however, in at least some cases the Secretary has not looked to the status of the tribe in 1934 or to the specific statutory authority identified by the State in making the determination to take land into trust. In Baker v. Muskogee Area Dir., 19 I.B.I.A. 164 (1991), for example, the IBIA, in concluding that particular members of the Cherokee Nation of Oklahoma were eligible to have land taken into trust, did not rely on the 1936 Oklahoma Indian Welfare Act, 25 U.S.C. §§ 501-570, which authorized the Secretary to take land into trust for Indians in Oklahoma. Rather, the IBIA stated that the Indians “c[a]me within the IRA definition because they are members of a recognized Indian tribe under Federal jurisdiction.” 19 I.B.I.A. at 179. The Secretary thus seems to have intended to exercise his section 465 authority to take land into trust on the basis of current federal recognition. The State has not met its burden of showing inconsistent interpretation by the Secretary. Moreover, even if the State had shown that the Secretary has changed his interpretation of section 479 over time, that would not necessarily resolve the matter in the State’s favor. The Chevron doctrine permits the Secretary some ability to alter his interpretation over time. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981-82, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (under Chevron, an agency should have flexibility to vary its interpretation of a statute over time). The Secretary has given a reasoned explanation for his interpretation. We reject the State’s argument that the Secretary has been inconsistent in his interpretation of section 479 and is therefore not entitled to deference. C. The Settlement Act The State’s next attack is to argue that the Settlement Act repealed the Secretary’s trust authority as to all lands in Rhode Island. Alternatively, the State argues that the Settlement Act at least curtailed that authority so that any trust must preserve the State’s civil and criminal jurisdiction over the Parcel. There is simply nothing in the text of the Settlement Act, however, that accomplishes such a repeal or curtailment of the Secretary’s trust authority. 25 U.S.C. § 1708(a) provides: Except as otherwise provided in this [Act], the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island, (emphasis added). The State would have us read the Act as if section 1708(a) applied to all lands the Tribe might ever acquire, either directly or as the beneficiary of a trust, but that is not what the section says. By its terms, section 1708(a) applies state law only to the 1800 acres of “settlement lands.” The Parcel is not part of the settlement lands. No other provision of the Settlement Act directly provides for state jurisdiction outside of the settlement lands. No language in the Act applies state law to lands the Tribe might later acquire. More importantly, no language explicitly curtails, or even references, the Secretary’s power under the IRA to take lands into trust and thereby to create Indian country. The State’s argument thus depends on finding that the Settlement Act implicitly repealed the IRA, at least in part. The framework for evaluating such a claim of implicit repeal was set out by the Supreme Court in Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). First, we must look to affirmative manifestations of congressional intent to repeal the prior act, mindful of the “cardinal rule ... that repeals by implication are not favored.” Id. at 549, 94 S.Ct. 2474 (omission in original) (quoting Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497, 503, 56 S.Ct. 349, 80 L.Ed. 351 (1936)) (internal quotation marks omitted). “In the absence of some affirmative showing of an intention to repeal, the only permissible justification for [finding] a repeal by implication is [that] the earlier and later statutes are irreconcilable.” Id. at 550, 94 S.Ct. 2474. Such a conflict is not lightly to be found: “[A]bsent a clearly expressed congressional intention to the contrary,” we must “give effect to both [acts] if possible.” Id. at 551, 94 S.Ct. 2474 (quoting United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 84 L.Ed. 181 (1939)) (internal quotation marks omitted). A determination of congressional intent must be rooted in the text of the Act. Nothing in the Act explicitly curtails the Secretary’s trust authority. The State offers two different lines of argument as to why provisions of the Act must be read to restrict that authority. One concerns how the Act affects the Tribe’s rights; the other concerns how the Act affects the Secretary’s authority. The provisions of the Settlement Act cited by the State, however, are most naturally read as merely resolving the claims that had clouded the titles of so much land in Rhode Island and that had led to the settlement embodied in the Act. As to the provisions affecting the Tribe, the State relies independently on the ex-tinguishment of aboriginal title in 25 U.S.C. §§ 1705(a)(2) and 1712(a)(2) and the further extinguishment in sections 1705(a)(3) and 1712(a)(3) of “all claims ... based upon any interest in or right involving” certain land or natural resources. These provisions, however, follow sections 1705(a)(1) and 1712(a)(1), respectively, which validate “any transfer of land or natural resources” in the United States by the Narragansett Tribe or in Rhode Island by any Indian tribe “as of the date of said transfer.” The provisions then go on to state: (2) [T]o the extent that any transfer of land or natural resources described in subsection (a) of this section may involve land or natural resources to which [an Indian tribe] had aboriginal title, subsection (a) of this section shall be regarded as an extinguishment of such aboriginal title as of the date of said transfer; and (3) by virtue of the approval of a transfer of land or natural resources effected by this section, or an extinguishment of aboriginal title effected thereby, all claims ... by the [Narragansett Tribe], or any predecessor or successor in interest, member or stockholder thereof, or any other Indian, Indian nation, or tribe of Indians, arising subsequent to the transfer and based upon any interest in or right involving such land or natural resources (including but not limited to claims for trespass damages or claims for use'and occupancy) shall be regarded as extinguished as of the date of the transfer. 25 U.S.C. § 1705(a). Given the references back to the -transfers validated in paragraph (1), the evident purpose of these provisions is to extinguish claims based on the purported invalidity of those transfers. The State’s arguments that the provisions should be read more broadly are unavailing. First, the State argues that the extinguishment of aboriginal title over land in Rhode Island precludes the later exercise of tribal sovereignty over Rhode Island land acquired by the Secretary in unrestricted trust. The Secretary disputes whether aboriginal title is ever the basis for tribal sovereignty, but in any event, it is clear that such title is not the only basis for tribal sovereignty. This is evident from the Supreme Court’s decision in City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005). In Sherrill, the Supreme Court both held that “the Tribe [could not] unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue,” id. at 202-03, 125 S.Ct. 1478, and directed the Oneidas to 25 U.S.C. § 465 as “the proper avenue for [the tribe] to reestablish sovereign authority over [the relevant] territory,” id. at 221, 125 S.Ct. 1478. The State’s protestation that Sherrill did not involve a statutory extinguishment of aboriginal title is beside the point. However aboriginal title or ancient sovereignty was lost, the IRA provides an alternative means of establishing tribal sovereignty over land. Trust acquisition is not incompatible with the extinguishment of aboriginal title. The Mashantucket Pequot Indian Claims Settlement Act, for example, contains virtually identical language extinguishing aboriginal title “to any land or natural resources the transfer of which was approved and ratified” by the Act. 25 U.S.C. § 1753(b). At the same time, the Act provides that certain land and natural resources “located within the settlement lands shall be held in trust by the United States for the benefit of the Tribe,” id. § 1754(b)(7), and that such lands are “declared to be Indian country,” id. §§ 1752(7), 1755. It is implausible to think that Congress intended the extin-guishment of aboriginal title in the Rhode Island Settlement Act to preclude the taking of land into unrestricted trust, but did not intend for identical language in the Mashantucket Settlement Act to do so. Alternatively, the State argues that the “all claims” language in paragraph (3) even more broadly forecloses the assertion of tribal sovereignty over non-settlement lands. To hold otherwise, says the State, would render that language surplusage. Paragraphs (2) and (3) are complementary, however, not duplicative. While paragraph (2) extinguishes a form of title, paragraph (3) extinguishes claims. Moreover, paragraph (3) covers claims based on other forms of title, besides aboriginal title, that the Tribe might have held to land in Rhode Island prior to the Settlement Act. The State’s broad interpretation of paragraph (3) proves too much. The State argues that the paragraph precludes an assertion of tribal sovereignty over any land in Rhode Island. Nothing in the language of the provision, which refers to “any interest in or right involving” such land, distinguishes between claims of sovereignty and traditional property claims. Indeed, the latter are explicitly included. See id. § 1705(a)(3) (“including but not limited to claims for trespass damages or claims for use and occupancy”). It would be highly improbable that Congress intended to prevent the Tribe from asserting any ownership interest over land it purchased outside the settlement lands, and it would be contradictory as to the settlement lands themselves. Thus, there is no support for reading this provision as precluding all future assertions of tribal sovereignty over land in Rhode Island. Ultimately, this entire line of argument by the State misses the point that what is at issue is not what the Tribe may do in the exercise of its rights, but what the Secretary may do. The displacement of state law arises from the Secretary’s authority and not from the Tribe’s mere purchase of the land. See Cass County, Minn. v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 113-15, 118 S.Ct. 1904, 141 L.Ed.2d 90 (1998). In order to prevail on its claim of implied repeal, the State- must show that the Settlement Act repeals the. Secretary’s authority under the IRA. As to the implied repeal of the Secretary’s power, the State first argues that the Secretary is bound by the extinguishment of the Tribe’s claims because that extinguishment binds the Tribe’s “successor in interest.” 25 U.S.C. § 1705(a)(2), (3). Even if the Secretary is such a “successor in interest,” however, those provisions cannot plausibly be read to repeal the Secretary’s power under the IRA to take land into trust. The Secretary’s power does not turn on the Tribe’s original aboriginal interest in the Parcel, before it purchased the land, nor does it turn on whether the Secretary is a successor in interest to the Tribe. The State also relies on 25 U.S.C. § 1707(c), which provides: Upon the discharge of the Secretary’s duties under sections 1704, 1705, 1706, and 1707 of this title, the United States shall have no further duties or liabilities under this subchapter with respect to the Indian Corporation or its successor, the State Corporation, or the settlement lands.... The language of this provision, however, cannot be read to have a preclusive effect or to limit the Secretary’s powers in any way. . The statement that the United States has “no further duties or liabilities under this subchapter” merely delimits the federal government’s obligations in implementing the Settlement Act. We reject the State’s suggestion that this language parallels the language in the Mashantucket Settlement Act that the Second Circuit found to prohibit certain trust acquisitions. See Connecticut ex rel. Blumenthal v. U.S. Dep’t of Interior, 228 F.3d 82, 88 (2d Cir.2000). The Mashan-tucket Settlement Act uses very different language that provides that “the United States shall have no further trust responsibility with respect to [certain] land and natural resources” outside of the settlement lands. 25 U.S.C. § 1754(b)(8). Disclaiming “trust responsibility” over land is nothing like disclaiming “duties or liabilities under this subchapter.” There is nothing in the text of the Settlement Act that clearly indicates an intent to repeal the Secretary’s trust acquisition powers under the IRA, or that is fundamentally inconsistent with those powers. This lack of language is not because either _ Congress or the parties failed to anticipate that the Tribe might later become federally recognized and eligible for the benefits of the IRA. The Settlement Act specifically provides for a restraint on alienation of the settlement lands “if the Secretary subsequently acknowledges the existence of the Narragansett Tribe of Indians.” Id. § 1707(c). The underlying JMOU also explicitly recognized that the Tribe would “not receive Federal recognition” in the implementation of the settlement, but would “have the same right to petition for such recognition ... as other groups.” JMOU para. 15. Had the Act intended to limit the Secretary’s trust authority in case of federal recognition, it could have done so explicitly. It would have been easy to extend the provisions of section 1708(a) preserving state sovereignty to cover all lands in Rhode Island owned by or held in trust for the Tribe. No such language appears in the Act. Similarly, as the IBIA also noted, paragraph 15 of the JMOU would have been “a logical place for the parties to set out any restrictions” on the Secretary’s trust authority following federal recognition of the Tribe. Town of Charlestown, 35 I.B.I.A. at 101. No such restrictions appear. Nor does the Settlement Act contemplate any role for the State to play in the Secretary’s decision whether to take the land into trust. This is in contrast to the Indian Gaming Regulatory Act. In other settlement acts, Congress has specifically described limits on the Secretary’s trust authority. In the Maine Indian Claims Settlement Act, Congress expressly precluded application of section 465. 25 U.S.C. § 1724(e) (“Except for the provisions of this [Act], the United States shall have no other authority to acquire lands or natural resources in trust for the benefit of Indians or Indian nations, or tribes, or bands of Indians in the State of Maine.”). In the Mashantucket Settlement Act, Congress precluded the trust acquisition of non-settlement lands purchased with settlement funds. See Blumenthal, 228 F.3d at 88. The absence of any restrictions in the Settlement Act supports our finding that no restrictions were intended. See id. at 90. The State’s fallback position is that the Settlement Act requires that this court order the Secretary to honor the intent of the bargain it believes is embodied in the Act by putting the Parcel into a restricted trust, subject to state laws and jurisdiction. Acknowledging the genuineness of the State’s sense that its bargain has been upset, we find that the relief it seeks is not an appropriate exercise of judicial power. In the Settlement Act, the State procured at least two clear benefits: (1) the settling of disputed land claims and (2) the application of its civil and criminal laws and jurisdiction to the settlement lands. Beyond that, the State argues that it would never have agreed to displacement of state law as to later acquired parcels if the issue had surfaced during the negotiations. The State argues that the practical consequences of the unrestricted trust leave it in an entirely unsatisfactory position and undermine the central bargain. Rhode Island points out that it is a small, very populous state and that the practical consequences of establishing Indian country for its nearby towns may be far greater than they would be in less densely populated areas. Even so, we are still bound by the language of the Settlement Act. Even viewing the State’s argument in contract terms, it is rare that a court will step in and reform a contract. See Broadley v. Mashpee Neck Marina, Inc., 471 F.3d 272, 275 (1st Cir.2006) (reversing the district court’s reformation of a contract). Our ability to edit, as opposed to interpret, an act of Congress is no less constrained: only a finding of absurdity, not present here, provides the necessary precondition. Compare Green v. Bock Laundry Mach. Co., 490 U.S. 504, 510-11, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989) (editing a federal rule of evidence where the apparent distinction between civil plaintiffs and civil defendants would be “unfathomable”), with W. Va. Univ. Hosps. v. Casey, 499 U.S. 83, 100-01, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991) (refusing to read in an additional component to a fee-shifting provision on the basis that Congress “simply forgot” to include it). See also Blumenthal, 228 F.3d at 91 (“While we might question the wisdom of different jurisdictional provisions governing different trust lands, we will not provide a strained interpretation of the Settlement Act simply to avoid such a result.”). The judiciary may not usurp the role of Congress. D. Constitutional Claims In support of recognition of its state sovereignty interests under the Constitution, the State presents four arguments. It argues first that the Indian Commerce Clause, U.S. Const, art. I, § 8, cl. 3, does not provide the Secretary the authority to displace state law within a state’s boundaries, and that section 465 of the IRA therefore violates the Tenth Amendment. Next, it argues that the Secretary may not, in any event, displace state law without the State’s consent, by operation of the Enclave Clause of the Constitution. Id. art. I, § 8, cl. 17. The State further argues that the Secretary’s action is barred by the Admissions Clause, id. art. IV, § 3, cl. 1, which prohibits formation of new states within the jurisdiction of any other state. Finally, the State argues that section 465 is an unconstitutional delegation of legislative authority. We reject all of these arguments. 1. The Indian Commerce Clause and the Tenth Amendment The authority to regulate Indian affairs is within the enumerated powers of the federal government. Id. art. I, § 8, cl. 3; Cotton Petroleum Corp., 490 U.S. at 192, 109 S.Ct. 1698 (“[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs.”); Morton, 417 U.S. at 551, 94 S.Ct. 2474 (noting that Congress has plenary power “to deal with the special problems of Indians,” including the power to legislate on their behalf). “With the adoption of the Constitution, Indian relations became the exclusive province of federal law.” County of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226, 234, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985); see also United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 194, 23 L.Ed. 846 (1876) (“Congress now has the exclusive and absolute power to regulate commerce with the Indian tribes_”). The Tenth Amendment to the U.S. Constitution reserves to the states those powers not expressly delegated to the federal government. The powers delegated to the federal government and those reserved to the states by the Tenth Amendment are mutually exclusive. “If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States.... ” New York v. United States, 505 U.S. 144, 156, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). Because Congress has plenary authority to regulate Indian affairs, section 465 of the IRA does not offend the Tenth Amendment. Cf. Herrera-Inirio v. INS, 208 F.3d 299, 307 (1st Cir.2000) (“Because Congress possesses plenary authority over immigration-related matters, it may freely displace or preempt state laws in respect to such matters”). 2. The Enclave Clause The Enclave Clause of the Constitution provides that Congress may “exercise exclusive legislation ... over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.” U.S. Const. art. I, § 8, el. 17. The Enclave Clause’s provision for exclusive federal jurisdiction was intended to ensure that “places on which the security of the entire Union may depend” are not “in any degree dependent on a particular member of it.” Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 530, 5 S.Ct. 995, 29 L.Ed. 264 (1885) (quoting The Federalist No. 43 (James Madison)) (internal quotation marks omitted). The State argues that “[p]rimary federal jurisdiction through federal superintendence over the land ... coupled with Congress’s exclusive legislative authority over Indian matters ... collectively operate to exclude state law [on trust lands].” As a result, it argues, trust acquisitions create federal enclaves and therefore require state consent. We disagree. First, trust land does not fall within the plain language of the Enclave Clause. It is not purchased “for the erection of forts, magazines, arsenals, dockyards, [or] other needful buildings.” Rather, it is held in trust for the benefit of Indians. Second, in Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455, 74 L.Ed. 1091 (1930), the Supreme Court offered an Indian reservation as a “typical illustration” of federally owned land that is not a federal enclave because state civil and criminal laws may still have partial application thereon. Id. at 651, 50 S.Ct. 455. The Supreme Court recently confirmed the reasoning underlying the observation that Indian lands are not federal enclaves: Indians’ right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation’s border. Though tribes are often referred to as “sovereign” entities, it was “long ago” that “the Court departed from Chief Justice Marshall’s view that ‘the laws of [a State] can have no force’ within reservation boundaries.” Hicks, 533 U.S. at 361, 121 S.Ct. 2304 (alteration in original) (quoting White Mountain Apache Tribe, 448 U.S. at 141, 100 S.Ct. 2578 (quoting Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561, 8 L.Ed. 483 (1832))). As a result, the Secretary’s trust acquisition of lands for the Narragansetts does not even implicate the Enclave Clause. 3. The Admissions Clause The Admissions Clause of the Constitution provides that “no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.” U.S. Const. art. IV, § 3, cl. 1. The State argues that the creation of Indian country within Rhode Island amounts to the formation of a new state within Rhode Island’s jurisdiction. This argument is without merit. The Admissions Clause prohibits Congress only from unilaterally establishing within an existing state a body “on an equal footing with the original states in all respects whatsoever.” Coyle v. Smith, 221 U.S. 559, 567, 31 S.Ct. 688, 55 L.Ed. 853 (1911) (internal quotation marks omitted). For purposes of the Admissions Clause, a state is a body “equal in power, dignity and authority” to existing states. Id. The Secretary’s trust acquisition for the Narra-gansetts does not establish such a body. As a result, the acquisition does not violate the Admissions Clause. 4. The Nondelegation Doctrine The Constitution vests “[a]ll legislative Powers [tjherein granted ... in a Congress of the United States.” U.S. Const, art. I, § 1. Congress “is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is ... vested.” Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 79 L.Ed. 446 (1935). Yet, the Supreme Court has recognized that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). As a result, the Supreme Court has repeatedly held that Congress may confer decisionmaking authority on agencies as long as it “lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (second alteration in original) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928)) (internal quotation marks omitted). The Court “has deemed it ‘constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.’ ” Mistretta, 488 U.S. at 372-73, 109 S.Ct. 647 (quoting Am. Power & Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 91 L.Ed. 103 (1946)). The State and its amici argue that section 465 lacks the requisite “intelligible principle” and therefore is an unconstitutional delegation of legislative authority. 25 U.S.C. § 465 provides: The Secretary of the Interior is authorized, in his discretion, to acquire ... any interest in lands, ... for the purpose of providing land for Indians. For the acquisition of such lands, ... and for expenses incident to such acquisition, there is authorized to be appropriated, out of any funds in the Treasury not otherwise appropriated, a sum not to exceed $2,000,000 in any one fiscal year: Provided, That no part of such funds shall be used to acquire additional land outside of the exterior boundaries of Navajo Indian Reservation for the Navajo Indians in Arizona, nor in New Mexico, in the event that legislation to define the exterior boundaries of the Navajo Indian Reservation in New Mexico ... becomes law. Title to any lands or rights acquired pursuant to this Act ... shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation. 25 U.S.C. § 465. In support of its argument, the State relies primarily on an Eighth Circuit decision, South Dakota v. U.S. Dep’t of the Interior, 69 F.3d 878 (8th Cir.1995), vacated, 519 U.S. 919, 117 S.Ct. 286, 136 L.Ed.2d 205 (1996), that held that section 465 was an impermissible delegation that was completely lacking in “boundaries” and “intelligible principles” and that “would permit the Secretary to purchase the Empire State Building in trust for a tribal chieftain as a wedding present.” Id. at 882. The circuit opinion in South Dakota was vacated by the Supreme Court, which did not publish an opinion explaining its decision, 519 U.S. at 919-20, 117 S.Ct. 286, and as a result has not set any precedent. Lovelace v. Se. Mass. Univ., 793 F.2d 419, 422 (1st Cir.1986) (per curiam). On remand, the Eighth Circuit held that “the purposes evident in the whole of the IRA and its legislative history sufficiently narrow the delegation and guide the Secretary’s discretion in deciding when to take land into trust.” South Dakota v. U.S. Dep’t of Interior, 423 F.3d 790, 797 (8th Cir.2005). The court noted that the statute allows the Secretary to acquire trust lands only for Indians as defined in 25 U.S.C. § 479, and that the statute prohibits the Secretary from taking extra-reservation lands into trust for Navajo Indians. See 423 F.3d at 797. The South Dakota court also referred to the legislative history of the IRA, which explains that the goals motivating trust acquisitions are “rehabilitati[on][of] the Indian’s economic life” and “develop[ment] [of] the initiative destroyed, by ... oppression and paternalism.” Id. at 798 (quoting Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973) (quoting H.R.Rep. No. 73-1804, at 6-7 (1934))) (internal quotation marks omitted). As the dissent from the original South Dakota decision had noted, the historical context of the IRA is important; section 465’s “direction that land be acquired ‘for the purpose of providing land for Indians[ ]’ has specific meaning in light of the failure of the allotment policy and [congressional rejection of assimilation as a goal.” 69 F.3d at 887 (Murphy, J., dissenting). Other provisions of the IRA reinforce such an interpretation. See 25 U.S.C. § 461 (prohibiting allotment of reservation lands to individual Indians); id. § 462 (extending indefinitely existing trust periods and restrictions on alienation of Indian lands); id. § 463(a) (authorizing restoration of surplus lands to tribal ownership); id. § 464 (prohibiting the transfer of restricted Indian lands except to Indian tribes). We find the reasoning of the Eighth Circuit’s second South Dakota opinion persuasive. The Ninth Circuit’s decision in Confederated Tribes of Siletz Indians of Oregon v. United States, 110 F.3d 688 (9th Cir.1997), also supports the Secretary’s position that section 465 is not an unconstitutional delegation of legislative authority. Although not addressing a nondelegation challenge to section 465, the Confederated Tribes court stated that “[t]he general delegation of power to the Executive to take land into trust for the Indians is a valid delegation because Congress has decided under what circumstances land should be taken into trust and has delegated to the Secretary of the Interior the task of deciding when this power should be used.” Id. at 698. The Supreme Court has upheld the constitutionality of statutes authorizing regulation in the “public interest,” see, e.g., Nat’l Broad. Co. v. United States, 319 U.S. 190, 225-26, 63 S.Ct. 997, 87 L.Ed. 1344 (1943); N.Y. Cent. Sec. Corp. v. United States, 287 U.S. 12, 24-25, 53 S.Ct. 45, 77 L.Ed. 138 (1932), as well as statutes authorizing regulation to ensure fairness and equity, see Am. Power & Light Co., 329 U.S. at 104-05, 67 S.Ct. 133; Yakus v. United States, 321 U.S. 414, 420, 426-27, 64 S.Ct. 660, 88 L.Ed. 834 (1944). As the Court stated in its most recent nondelegation decision, it has “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” Am. Trucking Ass’ns, 531 U.S. at 474-75, 121 S.Ct. 903 (quoting Mistretta, 488 U.S. at 416, 109 S.Ct. 647 (Scalia, J., dissenting)) (internal quotation marks omitted). We similarly decline to do so here. We hold that section 465 is not an unconstitutional delegation of legislative authority. E. APA-Related Claims The focus of the en banc proceedings was on the three sets of arguments discussed above. The State presented another set of claims, rejected by the panel, that the Secretary’s decision to take the Parcel into trust for the Tribe violates the APA. The State did not seek en banc review of this issue. In granting en banc review, we •withdrew our panel opinion, which had been reported at 423 F.3d 45. In the interests of completeness, we now also reject the State’s APA claims. We set forth here a shortened and slightly modified version of the panel’s opinion as to this issue. The State claims that the Secretary’s action was an abuse of discretion under the APA. Our review of the Secretary’s decision is governed by section 706(2)(A) of the APA, which provides that a court may set aside agency action only where it finds the action “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An agency’s determination is arbitrary and capricious if the agency lacks a rational basis for making the determination or if the decision was not based on consideration of the relevant factors. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.1997). The Court’s review under section 706(2)(A) is highly deferential, and the Secretary’s action is presumed to be valid. See Conservation Law Found. of New Eng., Inc. v. Sec’y of Interior, 864 F.2d 954, 957-58 (1st Cir.1989). A reviewing court cannot substitute its own judgment for that of the agency. Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Associated Fisheries, 127 F.3d at 109. No deference is given to the district court’s decision. Associated Fisheries, 127 F.3d at 109. The State makes five arguments as to why the Secretary’s decision was unlawful under section 706(2)(A): (1) the BIA relied on the Tribe’s findings, rather than conducting an independent evaluation of the Tribe’s application; (2) the BIA misapplied the factors enumerated in 25 C.F.R. § 151.10 for evaluating a fee-to-trust transfer; (3) the Native American Housing Assistance and Self-Determination Act cooperation agreement waiver violated due process; (4) the BIA failed to consider the environmental impact of the housing project planned for the Parcel and the project’s compliance with the Coastal Zone Management Act; and (5) the BIA failed to consider noncompliance with the Indian Gaming Regulatory Act. We disagree, and we find that the Secretary’s decision to accept the Parcel into trust did not violate the APA. 1. Independent Evaluation of the Tribe’s Trust Application The State claims that the BIA’s decision to take the Parcel into trust was arbitrary and capricious because it relied exclusively on the Tribe’s assertions and failed to consider other important facts that occurred between 1993 and 1997. The State points to substantial passages in the Secretary’s decision that contain verbatim restatements of information provided by the Narragansett Tribe in support of their 1993 trust application as evidence that the BIA failed to conduct an independent evaluation of the Tribe’s 1997 application. There is ample evidence in the administrative record that the BIA conducted its own, independent evaluation of the Tribe’s application and that it considered the events following the Tribe’s 1993 application. For example, between 1993 and 1997, the BIA required the Tribe to supplement its initial Environmental Assessment; conducted an environmental hazard survey of the Parcel; required confirmation of consistency with the State’s Coastal Resources Management Plan; was apprised of, and offered to facilitate, negotiations between the Tribe, the Town, and the State concerning both environmental and jurisdictional issues attendant to the Tribe’s development of the Parcel; and specifically requested that the Regional Solicitor address several legal and jurisdictional issues raised by the State in its comments to the BIA on the Tribe’s trust application. This demonstrates that the BIA’s determination was the result of its own, independent evaluation of the 1997 application. 2. Application of the 25 C.F.R. § 151.10 Factors The State claims that the BIA failed to apply the proper criteria when it evaluated the Tribe’s application for trust acquisition. The regulations governing the BIA’s evaluation of applications to have land taken in trust are laid out at 25 C.F.R. part 151. The factors to be considered for an on-reservation acquisition are found in section 151.10, and the factors for an off-reservation acquisition are found in section 151.11. In making the decision to accept the Parcel into trust, the BIA considered the on-reservation factors in section 151.10. The State claims that the BIA failed to consider “the need of ... the tribe for additional land,” 25 C.F.R. § 151.10(b). The State also questions whether the BIA sufficiently scrutinized “the tribe’s justification of anticipated benefits from the acquisition” as required by section 151.11(b). A reviewing court will determine only “whether the [BIA’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens To Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. 814. The fact that the BIA found the Parcel, which is across a town road from the settlement lands, to be “contiguous” to the settlement lands that are currently in trust, and thus determined that it should consider the “on-reservation” factors enumerated in 25 C.F.R. § 151.10, is certainly not clear error and is within the Secretary’s discretion. The record shows that the BIA complied with section 151.10, including evaluating the Tribe’s need for the additional land, and the State has not shown that the Secretary made a clear error of judgment. It was not necessary for the BIA to consider the factors under section 151.11, since it found section 151.10 to be applicable to this trust determination. While the Secretary need not have considered section 151.11(b), the close proximity between the Tribe’s settlement lands and the Parcel would not have required the Secretary to give the greatest scrutiny to the “tribe’s justification of anticipated benefits from the acquisition.” 25 C.F.R. § 151.11(b). 3. The Native American Housing Assistance and Self-Determination Act Cooperation Agreement Requirement At the time of the BIA’s decision to acquire the Parcel into trust, HUD was precluded from releasing funds pursuant to the Native American Housing Assistance and Self-Determination Act for any tribe’s housing development unless an agreement for local cooperation on issues such as taxes and jurisdiction had been entered into by the tribe and the local government where the housing was located. 25 U.S.C. § 4111(c). In the instant case, the Narragansett Tribe did not obtain such an agreement with the Town. However, section 4111(c) has since been amended to permit HUD to waive the cooperation agreement requirement, 25 U.S.C. § 4111(c), as amended by Pub.L. No. 106-569, § 503(a)(2), 114 Stat. 2944, 2962 (2000), and the Tribe claims to have obtained such a waiver. The State argues that this waiver is invalid because the State apparently did not receive notice of the Tribe’s application for a waiver until after the waiver had been granted. On appeal, the State contends that if the BIA accepted the waiver, the BIA has inherited the legal error and acted in an arbitrary and capricious manner. As the district court noted, “25 U.S.C. § 4111(c) establishes a prerequisite to HUD’s award of housing grants. It does not pertain to the BIA’s trust acquisition authority.” Carcieri, 290 F.Supp.2d at 178. Nothing in the § 151.10 factors requires the BIA to ensure that a local cooperation agreement is in place for an Indian Housing project. 4. Environmental Considerations The National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321^370(f), and its supporting regulations promulgated by the Council on Environmental Quality (CEQ), 40 C.F.R. parts 1500-1518, direct federal agencies to consider the environmental impact of agency decisions. The State argues that the Secretary and the BIA (1) failed to consider the environmental impact in reaching, the decision to accept the Parcel into trust because no Environmental Impact Statement (EIS) was prepared, and (2) failed to conduct their own evaluation of the environmental impact and instead improperly relied on an Environmental Assessment (EA) submitted by the Narragansett Tribe. 'We disagree. Federal agencies are required to prepare an EIS for any action that could significantly affect the quality of the human environment. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.3. NEPA provides that “to the fullest extent possible ... all agencies of the Federal Government shall ... include in every recommendation or report on proposals for ... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... the environmental impact of the proposed action.” 42 U.S.C. § 4332(2)(C). However, in the absence of a finding that the proposed action would significantly affect the quality of the human environment, the BIA was not required ’to prepare an EIS. See, e.g., Londonderry Neighborhood Coal. v. Fed. Energy Regulatory Comm’n, 273 F.3d 416, 419 (1st Cir.2001) (quoting Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 49 (D.C.Cir.1999)). The CEQ has issued guidance on whether to prepare an EIS. This guidance provides that “if the agency determines on the.basis of the environmental assessment not to prepare a statement,” then the agency should “[pjrepare a finding of no significant impact” pursuant to section 1508.13. 40 C.F.R. § 1501.4(e). The applicant may prepare the EA provided that the agency “make[s] its own evaluation of the environmental issues and take[s] responsibility for the scope and content of the environmental assessment.” Id. § 1506.5(b). In this case, the BIA followed its standard operating procedure for externally initiated proposals by obtaining an EA from the Tribe and considering it along with supplemental information the BIA requested from the Tribe and information gathered independently by the BIA. See NEPA Handbook para. 4.2.B. After reviewing the EA and the requisite supplemental information, the BIA completed its environmental analysis and issued a finding of no significant impact. The BIA’s issuance of a finding of no significant impact satisfied its responsibilities under NEPA. - See 40 C.F.R. § 1501.4(e). Separately, the State contends that the BIA should have obtained a federal consistency review in accordance with the Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451-1465, before making its trust determination. The CZMA requires state consultation on federally permitted coastal development activities. The State asserts that the BIA’s failure to take direct action to ensure that the housing project was consistent with the Rhode Island Coastal Zone Management Program (RICZMP) before making its trust determination was a violation of the CZMA. We disagree. The State has failed to demonstrate that a consistency review of the Tribe’s housing development was necessary at the trust acquisition stage. The development of the Parcel is a project that was commenced by the Tribe, in conjunction with HUD, prior to the Tribe’s application for trust acquisition. The Rhode Island Coastal Resources Management Council correctly recognized that the development of the Parcel, which required its own federal consistency determination, was a separate matter from the trust acquisition, and properly found that the Tribe’s application for trust status was consistent with the RICZMP. 5. The Indian Gaming Regulatory Act Finally, the State contends that the true purpose of the Tribe’s application for trust acquisition is the development of gambling facilities on the Parcel — rather than development of tribal housing as the BIA found in its evaluation pursuant to 25 C.F.R. § 151.10(c) — and that the BIA’s failure to consider the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721, in its decision was an abuse of discretion. We reject the State’s argument that the Secretary’s decision to acquire the Parcel in trust should be reversed and that further inquiry into whether the Parcel would be used for gaming purposes is now required. No evidence that the Tribe intends to use the Parcel for anything other than tribal housing, as determined by the BIA, was presented. “In fact, after the plaintiffs expressed concern over the potential for development of a gaming facility on the parcel, the tribe reaffirmed that it intended to use the parcel for a housing development and stated that it had ‘no immediate plans for any further future development.’ ” Carcieri, 290 F.Supp.2d at 178 (quoting II Admin. Rec., tab N). As support for its position, the State points to an IBIA decision that reversed a trust acquisition decision due to the BIA’s failure to consider the impact of a potential casino, even though the applicants denied any intention of using the property for a casino. See Vill. of Ruidoso, N.M. v. Albuquerque Area Dir., Bureau of Indian Affairs, 32 I.B.I.A. 130 (1998). However, in Village of Ruidoso, the IBIA determined that, despite the tribe’s denial that the application for trust acquisition was for gaming purposes, it was clear from the planned gaming-related uses of the property and the fact that the property had been given to the tribe by a company that the BIA “apparently understood to have some gaming connection with the Tribe” that the application might well have been for gaming purposes. Id. at 136. In that situation, the BIA should have further analyzed the possibility of gaming. Id. at 140. We agree with the district court that although the possibility that the parcel might be used for gaming activities was raised before the BIA, the bureau’s determination that the parcel would be used to provide housing was amply supported by the record. In view of the deferential standard of review afforded to agency decisions under the APA, the bureau’s determination in this regard must be sustained. Carcieri, 290 F.Supp.2d at 178. III. The decision of the district court is affirmed. Costs are awarded to the Secretary. . By contrast, the Indian Gaming Regulatory Act provides the State with a limited role in determining whether land is taken into, trust for gaming purposes. See 25 U.S.C. § 2719(b)(1)(A). . The State's challenges to the Secretary's authority under the IRA and the Constitution have national implications that reach beyond Rhode Island; accordingly, ten states and the National Coalition Against Gambling Expansion have filed amicus briefs in support of Rhode Island. Similarly, numerous tribes and tribal organizations have filed amicus briefs in support of the Secretary. We acknowledge the able assistance provided by the amici curiae states and National Coalition Against Gambling Expansion on behalf of the State/ and amici curiae National Congress of American Indians, individual Indian tribes and tribal organizations, and the Mississippi Band of Choctaw Indians on behalf of the Secretary. . In "an abundance of caution," we recognized that the Tribe may still possess some autonomy in local government matters such as membership rules, inheritance rules, and regulation of domestic relations. Narragansett III, 449 F.3d at 26. . The Housing Authority was a duly recognized Indian housing authority and was given HUD funds to finance the purchase of the property and the construction of approximately 50 units of housing. See Indian Housing Act of 1988, 42 U.S.C. §§ 1437aa-1437ff (repealed by Native American Housing Assistance and Self-Determination Act of 1996, 25 U.S.C. §§ 4101-4243). The district court found the proposed housing project could be detrimental to coastal and groundwater resources, but also held that the Parcel was a "dependent Indian community” within the meaning of 18 U.S.C. § 1151(b) and therefore partially denied in-junctive relief. Narragansett Elec. Co., 878 F.Supp. at 355-57, 366. On appeal, this court held that the land for the housing project was not a "dependent Indian community” because federal ownership of the land and federal action to "set aside” the land were lacking. Narragansett II, 89 F.3d at 921-22. Thus, the Parcel could not be considered Indian country under 18 U.S.C. § 1151(b), and the housing project being constructed on the site was not exempt from state and local building and zoning restrictions. Accordingly, this court reversed the district court and directed the district court to enter an order granting the injunction. 89 F.3d at 922. . The IBIA rejected the State's insistence that the Secretary take account of the potential use of the Parcel for gaming purposes under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701, calling such a possibility merely speculative. 35 I.B.I.A. at 103. The IBIA also concluded that there had been no violation of the Coastal Zone Management Act, 16 U.S.C. § 1451. 35 I.B.I.A. at 103. . At oral argument, the Secretary indicated that although a tribe has civil regulatory jurisdiction over lands taken into trust, a state may seek to enforce its laws — to the extent they are not preempted by federal law — on trust lands either by agreement with the tribe or by seeking a determination in federal court that the State's interests with respect to enforcing a particular regulation outweigh the interests of the tribe and the federal government in fostering tribal self-government. See Hicks, 533 U.S. at 362, 121 S.Ct. 2304 ("When ... state interests outside the reservation are implicated, States [sometimes] may regulate the activities even of tribe members on tribal land.”); see also id. at 364, 121 S.Ct. 2304 (holding that state officers may execute on tribal lands process related to off-reservation violations of state law); Washington v. Confederated Tribes of Colville, 447 U.S. 134, 151, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980) (explaining that the state could require Indian tribes to collect taxes on sales of cigarettes to non-Indians). That issue is beyond the scope of this opinion. . We reject two additional arguments offered by the State. First, it is not significant that 25 U.S.C. § 478 required tribes to opt out of the IRA by a fixed date, rather than one that depended on the date of recognition. In general, it is difficult to see why any tribe would opt out of a statute designed to benefit it, and the legislative history suggests that the provision was a legacy from earlier drafts of the bill that imposed duties on tribes in return for the benefits. See Hearing on S.2755 and S.3645, supra, at 262. As eventually passed, the only potential purpose of the election was to protect the rights of those that preferred the allotment system, an issue not relevant to tribes recognized after 1934. Second, we hesitate to attach much weight to the fact that later Congresses have explicitly provided for the IRA to apply to newly recognized tribes. As the Supreme Court has recently cautioned again, the views of later Congresses carry little weight in determining the intent of the Congress that enacted the statute in question. See Massachusetts v. EPA, - U.S. -, 127 S.Ct. 1438, 1460 & n. 27, 167 L.Ed.2d 248 (2007). For the same reason, we do not take later enactments such as the 1994 amendments to section 476 to establish that Congress intended to make no distinctions among tribes in 1934. The parties have not pointed us to contemporaneous legislation that sheds further light on the issue. . One difficulty arises from the fact that there seems to be no comprehensive list of tribes that were recognized and under federal jurisdiction as of June 18, 1934. . The Secretary’s interpretation also is consistent with regulations interpreting and implementing other federal statutes establishing Indian programs and services. For example, the applicability of the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963, the applicability of minimum standards for basic education of Indian children in schools operated by the BIA, id. § 2001, and eligibility for Indian financial assistance and social services programs, id. § 13, all are defined in terms of current federal recognition. See 25 C.F.R. § 23.2; id. § 36.3; id. § 20.100. . Indian amici also submitted opinions of the Solicitor of the Department of the Interior discussing various tribes' eligibility to organize under the IRA as evidence that the Secretary has consistently interpreted "now” in section 479 to mean “today.” The State's attempt to distinguish these opinions is unsuccessful. For example, in discussing the IRA eligibility of the St. Croix Indians of Wisconsin, the Solicitor makes no mention whatsoever of the tribe’s status as of 1934. Solicitor’s Opinion, Jan. 29, 1941, 1 Op. Sol. on Indian Affairs 1026 (1979). The State argues that it is clear from context that the tribe was not recognized as of 1934. Yet, although this is true, the Solicitor discusses the fact that the tribe has never had a separate tribal status, and that until it does so, only those Indians who meet the half-blood test are eligible to organize under the IRA. Id. at 1027. Moreover, contrary to the State's position, the Solicitor's opinion indicates that if the tribe takes certain steps, it may later become eligible to organize under the IRA as a recognized band. Id. Similarly, in discussing the Nahma and Beaver Island Indians’ eligibility to organize under the IRA, the Solicitor discusses the tribe's historical status, but then continues to discuss its then-current situation. Solicitor’s Opinion, May 31, 1937, 1 Op. Sol. on Indian Affairs 747, 747-48 (1979). If the Solicitor had been concerned only with the tribe's status as of 1934, there would have been no reason for him to have considered the "recent ... attitude of the Interior Department on the band status” of the Nahma and Beaver Indians, nor for him to state that it was "out of the question to establish any existing band status” before concluding that the Indians were eligible for organization only under the IRA's half-blood provision. Id. at 748. . Nor is this case controlled by our en banc decision in Narragansett III. That case concerned the State’s jurisdiction over the settlement lands, see 449 F.3d at 20, and has no bearing on whether the Settlement Act abrogates the Secretary's trust authority outside of the settlement lands. Similarly, cases holding that section 1708(a) survived federal recognition and the conveyance of the settlement lands to federal trust are of no help to the State, since section 1708(a) refers only to the settlement lands. See Narragansett Indian Tribe v. Nat’l Indian Gaming Comm’n, 158 F.3d 1335, 1341-42 (D.C.Cir.1998); Narragansett I, 19 F.3d at 694-95. . The State adds nothing to its argument by also styling it as an issue of claim preclusion. Obviously, the earlier litigation that resulted in the Settlement Act could not have resolved the question raised in this case of whether the Settlement Act restricts the Secretary's trust authority under the IRA. By invoking "principles of res judicata,” the State means nothing more than that the Tribe should be held to the settlement to which it previously agreed. What precisely the Tribe agreed to in the settlement is, of course, the question we are addressing. . Section 1705 applies to the Narragansett Tribe and any land in Charlestown, Rhode Island. Section 1712 applies to land elsewhere in Rhode Island transferred by other Indian tribes. The relevant provisions in each are materially the same for our purposes here. . We attach little significance to the fact that the Mashantucket Settlement Act explicitly authorizes trust acquisition, while the Rhode Island Settlement Act does not. The former, unlike the latter, granted federal recognition to the tribe. See 25 U.S.C. § 1758(a). . We do not accept the State's comparison of the Rhode Island Settlement Act to the Alaska Native Claims Settlement Act (ANC-SA), 43 U.S.C. §§ 1601-1629h, and the resulting suggestion that trust acquisition would be as inappropriate in Rhode Island as it purportedly would be in Alaska. ANCSA eliminated previously existing Indian country, in Alaska. See Native Vill. of Venetie, 522 U.S. at 532-34, 118 S.Ct. 948. Even if one might infer from that elimination an intent to pre-elude later trust acquisitions, no such intent can be inferred from the Rhode Island Settlement Act's failure to affirmatively establish Indian country for an as-yet unrecognized tribe. . The State has not cited any legislative history that might lead us to interpret the text differently. . There are also other examples of Congress's imposing explicit conditions on the taking of land into trust, for example, by limiting the number of acres of land and the number of acre feet of water rights. See Nevada v. United States, 221 F.Supp.2d 1241, 1244 (D.Nev.2002) (discussing section 103(A) of the Fallon Paiute Shoshone Indian Tribe Water Rights Settlement Act of 1990, Pub.L. No. 101-618, 104 Stat. 3289, 3291). . The Secretary takes the position that he has no authority to impose restrictions on land taken into trust under the IRA, absent a statutory directive imposing such restrictions. We do not reach this issue. To the extent that the State argues that the Settlement Act itself is such a statutory directive requiring a restricted trust, we reject that argument for the same reasons that we found that the Settlement Act does not eliminate trust authority altogether. . In so holding, the Eighth Circuit agreed with the Tenth Circuit’s decision in United States v. Roberts, 185 F.3d 1125 (10th Cir.1999), which held that section 465 contains standards sufficient to guide the Secretary’s exercise of discretion. Id. at 1137. . Amici states argue that legislative history should not factor into the intelligible principle analysis. We note simply that the Supreme Court in Mistretta referred to legislative history in explaining that the Sentencing Reform Act of 1984 was not an unconstitutional delegation of legislative authority. See 488 U.S. at 375 n. 9, 376 n. 10, 109 S.Ct. 647. . For the purpose of 25 C.F.R. part 151, land is considered to be on-reservation if it is "located within or contiguous to an Indian reservation,” 25 C.F.R. § 151.10, and off-reservation where "the land is located outside of and noncontiguous to the tribe’s reservation,” id. § 151.11. The State challenges the finding by the BIA and the district court that the Parcel is adjacent to the settlement lands, yet recognizes that this determination is insignificant to the application of either section in this case, as the sections differ only slightly. Compare id. § 151.10, with id. § 151.11. The Parcel is adjacent to the Settlement Lands, but separated from them by a town road. Narragansett II, 89 F.3d at 911. . Those factors include: (a) The existence of statutory authority for the acquisition and any limitations contained in such authority; (b) The need of the individual Indian or the tribe for additional land; (c) The purposes for which the land will be used; (e) If the land to be acquired is in unrestricted fee status, the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls; (f) Jurisdictional problems and potential conflicts of land use which may arise; and (g) If the land to be acquired is in fee status, whether the Bureau of Indian Affairs is equipped to discharge the additional responsibilities resulting from the acquisition of the land in trust status. 25 C.F.R. § 151.10. . The criteria to be considered pursuant to section 151.11(b) are as follows: The location of the land relative to state boundaries, and its distance from the boundaries of the tribe's reservation, shall be considered as follows: as the distance between the tribe's reservation and the land to be acquired increases, the Secretary shall give greater scrutiny to the tribe’s justification of anticipated benefits from the acquisition. ... 25 C.F.R. § 151.11(b). . Specifically, 16 U.S.C. § 1456(c) provides, in relevant part: (1)(A) Each Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs. A Federal agency activity shall be subject to this paragraph unless it is subject to paragraph (2) or (3). (C) Each Federal agency carrying out an activity subject to paragraph (1) shall provide a consistency determination to the relevant State agency.... (2) Any Federal agency which shall undertake any development project in the coastal zone of a state shall insure that the project is, to the maximum extent practicable, consistent with the enforceable policies of approved State management programs.

Carcieri v. Kempthorne

HOWARD, Circuit Judge, dissenting. Respectfully, I disagree with the majority’s analysis of the Settlement Act. In my view, the majority opinion disregards Congress’s (and the parties’) purpose in passing the Settlement Act and is inconsistent with our own recent interpretation of the Settlement Act. See Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16 (1st Cir.2006) (en banc). At bottom, under the Settlement Act, the Secretary may only take the Parcel into a restricted trust that provides for Rhode Island’s continued criminal and civil jurisdiction over the Parcel. The State makes this argument in two forms. First, by arguing that the Settlement Act effectuates a partial implied repeal of the IRA as to state jurisdiction on land taken into trust by the BIA. Second, by arguing that the statutes can be harmonized by reading the IRA narrowly and subject to the Settlement Act’s provisions. Either approach gets to the same conclusion. Significantly, the generous rules of “Indian construction” do not apply in analyzing an implied repeal. See Passamaquoddy Tribe v. State of Maine, 75 F.3d 784, 790 (1st Cir.1996) (the normal principles of implied repeal are applied in the Indian law context). The parties and amici do an excellent job in acquainting the court with the many complexities of both the case and the issues inherent in “Indian law.” However, the ultimate resolution of the case comes down to a very narrow question: In the specific context of the Tribe and State, what did Congress intend the Settlement Act to do? The key provision is Section 1705, which is written far more broadly than the majority concludes. In its first two provisions that section retroactively ratifies all the Tribe’s prior land transfers anywhere in the United States and extinguishes the Tribe’s aboriginal title in all such lands. See 25 U.S.C. § 1705(a)(1) & (2). More significantly, Section 1705 goes on to extinguish future land claims: (3)by virtue of the approval of a transfer of land or natural resources effected by this section, or an extinguishment of aboriginal title effected thereby, all claims against the United States, any State or subdivision thereof, or any other person or entity, by the Indian Corporation or any other entity presently or at any time in the past known as the Narragansett Tribe of Indians, or any predecessor or successor in interest, member of stockholder thereof, or any other Indian, Indian nation, or tribe of Indians, arising subsequent to the transfer and based upon any interest in or right involving such land or natural resources (including but not limited to claims for trespass damages or claims for use and occupancy) shall be regarded as extinguished as of the date of the transfer. Id. § 1705(a)(3). This provision obviously goes well beyond merely extinguishing aboriginal title (and claims based thereon), which was accomplished in the prior subsection. See id. § 1705(a)(2). This language forecloses any future “Indian” land claim of any type by the Tribe regarding land in Rhode Island (or anywhere in the United States, for that matter). Thus, Congress (and the parties) intended to resolve all the Tribe’s land claims in the state once and for all. The majority argues that Section 1705(a)(3) cannot be read so broadly; otherwise, the Tribe would be barred from asserting any land claims. See ante, at 36-37. But the majority disregards a significant factor — the nature of the land claims that were barred. The legislative history of the Settlement Act specifically states that the “extinguishment of Indian land claims is limited to those claims raised by Indians qua Indians.” H.R. Rep. 95-1453, U.S.Code Cong. & Admin.News 1978, 1948, at 1955 (1978) (emphasis added). As we recently stated, through the Settlement Act “the Tribe abandoned any right to an autonomous enclave, submitting itself to state law as a quid pro quo for obtaining the land that it cherished.” Narragansett Tribe, 449 F.3d at 22. Thus, the Tribe would be free to assert any claim that any other landowner in Rhode Island could make under state law, but would be foreclosed from making claims based entirely on the Tribe’s status as an Indian tribe. It is beyond peradventure that asking to have land taken into trust by the BIA under the IRA to effect an ouster of state jurisdiction is a quintessential “Indian” land claim. Moreover, “Congress does not legislate in a vacuum,” and among the matters that a court must consider in assessing a statute are general policies and pre-existing statutory provisions. Passamaquoddy Tribe, 75 F.3d at 789. The Settlement Act was enacted over 40 years after Section 465 of the IRA and, given the explicit acknowledgment of possible future recognition for the Tribe, Congress was well aware of the IRA when enacting the Settlement Act. It is neither logical nor necessary to find that Congress enacted legislation effectuating this carefully calibrated compromise between three sovereigns, which required significant expenditures by both the federal government and the State, which provided a significant amount of land to the Tribe, and which provided for a delicate balancing of the parties’ interests, only to permit the legislation to be completely subverted by subsequent agency action. On this score, the majority misses the exquisite irony that the Parcel was part of the lands originally claimed by the Tribe. It would be antithetical to Congress’ intent to allow the Tribe to purchase a portion of the originally disputed lands that were the subject of the earlier lawsuits that ultimately led to the JMOU and Settlement Act, place it in trust with the BIA, and thereby create “Indian country” in direct contravention of the Settlement Act’s prohibitions. For this same reason, the majority’s attempt to distinguish our recent Narragansett Tribe opinion as pertaining only to the “Settlement Lands” is unpersuasive. See ante, at 34 n. 11. By that reasoning, the Tribe could swap the Settlement Lands for adjacent land and undo any limitations contained in the Settlement Act. The Settlement Act cannot be reasonably construed to allow such absurd results. Further, the Settlement Act was novel; it was the first statute resolving Indian land claims, premised upon the Noninter-course Act, growing out of an out-of-court settlement negotiated by a tribe and the state/landowners. See H.R. 95-1453, at 1951 (1978). Indeed, it was expected to serve as a template for the resolution of other' Eastern tribes’ land claims under the Nonintercourse Act. See id.; see also Oneida Indian Nation, 125 S.Ct. at 1483-85 (discussing Nonintercourse Act and original 13 states’ “pre-emptive right to purchase from the Indians”). In light of the fact that the Settlement Act was the first statute of its kind, the majority’s observation that subsequent statutes were more explicit in limiting certain aspects of the Secretary’s power proves nothing. Elaborate statements regarding the Tribe’s relationship with the BIA would have been unwarranted in the Settlement Act, given that the Tribe had not yet been recognized. ' Moreover, that subsequent acts dealing with Eastern tribes made specific provision for the Secretary’s ability to take land in trust for a tribe, see, e.g., 25 U.S.C. § 1771d(c) & (d) (Massachusetts Indian Claims Settlement); id. § 1724(d) (Maine Indian Claims Settlement); id. § 1754(b) (Connecticut Indian Claims Settlement), supports the conclusion that Congress anticipated no such result under the Settlement Act. Given that the State had full criminal and civil jurisdiction over its territory, that any potential jurisdictional issue concerning the Settlement Lands was specifically addressed, and that all future Indian land claims were barred, there would be no future land scenarios that Congress would need to address more specifically (as it' did in the other acts). As we have noted, “the Settlement Act, properly read, ensures that the State may demand the Tribe’s compliance with state laws of general application.” Narragansett Tribe, 449 F.3d at 26. There is also nothing novel about requiring the BIA to accept the Parcel into trust with restrictions. The BIA is authorized to take restricted interests in land into trust, see 25 U.S.C. § 465, and, in dealing with other tribes, Congress has specifically directed the BIA to take land into trust subject to a settlement act’s provisions, see, e.g., id. § 1771d(d); id. § 1773b. It is also worth noting that Congress acted promptly to preserve the State’s jurisdiction over the Tribe’s lands the last time this court challenged it. When this court held that the Tribe exercised suffi-dent jurisdiction and governmental authority over the Settlement Lands to invoke the Indian Regulatory Gaming Act, see Narragansett Tribe, 19 F.3d at 703, Congress promptly amended the Settlement Act to provide explicitly that the Settlement Lands are not “Indian lands” for purposes of that Act, see 25 U.S.C. § 1708(b). I respectfully dissent. . I do not challenge the majority's conclusion that the BIA may take the Parcel into trust, as the State previously permitted the Narragansetts to take the Settlement Lands into trust in 1988. But any new trust lands must also be explicitly made subject to the State’s criminal and civil laws. . Indeed, the very breadth of the language indicates more was contemplated by the parties than merely resolving an immediate dispute over title. . The Tribe would still have the option of obtaining the State’s consent to make certain Indian land claims — such as the 1988 placement of the settlement lands in trust (subject to Rhode Island law) with the BIA. . The Tribe’s recognition by the BIA changed little, as this court has held that the jurisdictional grant to the State in the Settlement Act survived such recognition. See Narragansett Indian Tribe, 19 F.3d at 694-95. . In extinguishing the Tribe’s aboriginal title in the Settlement Act, Congress was inspired by the Alaska Native Claims Settlement Act (“ANCSA”). See H.R. Rep. 95-1453, at 1951. As noted by the Supreme Court, the ANCSA sought to accomplish this goal “without creating a reservation system or lengthy wardship or trusteeship.” Alaska v. Native Village of Venetie Tribal Govt., 522 U.S. 520, 524, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998) (internal citation and quotation omitted).

Carcieri v. Kempthorne

SELYA, Senior Circuit Judge, dissenting. I am in complete agreement with Judge Howard’s cogent and articulate dissent, and I join it unreservedly. Nevertheless, I write separately to express my regret that, in taking far too narrow a view of the Settlement Act, the majority gives short shrift not only to the interests of the State of Rhode Island but also to the carefully calibrated arrangements crafted between the State and the Tribe. We previously have made clear that the touchstone in resolving jurisdictional disputes between the State and the Tribe is the full effectuation of the parties’ intent. See Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 22, 25 (1st Cir.2006) (en banc). Yet, today, the majority sets aside the parties’ intent in favor of a wooden reading of one subsection of the Settlement Act. See ante at 34 (“By its terms, section 1708(a) applies state law only to the 1800 acres of ‘settlement lands.’ The Parcel is not part of the settlement lands.”). Despite the artful draftmanship of the majority opinion, the provision on which it relies cannot be wrested from its historical context and read in a vacuum. The Settlement Act, when taken together with the extinguishment of all Indian claims referable to lands in Rhode Island, the Tribe’s surrender of its right to an autonomous enclave, and the waiver of much of its sovereign immunity, see Narragansett Indian Tribe, 449 F.3d at 22, 24-25, suggests with unmistakable clarity that the parties intended to fashion a broad arrangement that preserved the State’s civil, criminal, and regulatory jurisdiction over any and all lands within its borders. Therefore, the Settlement Act logically and equitably should be read to prohibit any unilateral action that would upset this hard-bargained and delicate jurisdictional balance. The Secretary’s taking of an after-acquired parcel into an unrestricted trust is just such an event. It strains credulity to surmise, as does the majority, that the State would have made such substantial concessions — including the transfer, free and clear, of 1800 acres of its land — while leaving open the gaping loophole that today’s decision creates. The majority admits that this case is “in many ways a proxy for the State’s larger concerns about its sovereignty,” ante at 20, including the State’s understandable worry that the Tribe will use this parcel (or future parcels that might be acquired and placed into trust) for activities that would be forbidden under State law and anathema to a majority of the State’s citizens. At oral argument, the Secretary of the Interior and the Bureau of Indian Affairs appeared to disclaim any vestige of responsibility for the State’s concerns. Despite this disclaimer and “the genuineness of the State’s sense that its bargain has been upset,” ante at 38, the majority turns its back on the State. In my view, this is error — and error of the most deleterious kind. The majority, without anything approaching sufficient justification, is engaging in pointless literalism and forcing the State to rely on the faint velleity that the Secretary will use caution in the exercise of his responsibilities in connection with the Parcel. While “hope” is the official motto of Rhode Island, the State should not be force-fed hope in place of rights for which it has bargained. As Indian tribes evolve in modern society, old legal rules tend to blur. The controversy that divides our court today is vexing and of paramount importance to both the State and the Tribe. Thus, the issue — as well as the underlying principles of Indian law — doubtless would benefit from consideration by the Supreme Court. That is a consummation devoutly to be wished. In the meantime, however, there is too much at stake to allow the Tribe, with the contrivance of the Secretary’s taking the Parcel into trust, to walk away from an arrangement that it helped to fashion and from which it has benefitted over the years. I respectfully dissent.

Akiak Native Community v. United States Postal Service

CANBY, Circuit Judge: Plaintiffs, several Alaska Native communities, appeal from the district court’s summary judgment in favor of defendant, the United States Postal Service. Plaintiffs sought to enjoin the Postal Service’s Hovercraft Demonstration Project (“the Project”), an experimental program that delivers non-priority mail by surface hovercraft instead of by fixed-wing aircraft to eight remote Alaska Native villages on the Kus-kokwim River and two of its tributaries. Plaintiffs allege that the project violates the Coastal Zone Management Act (CZMA), 16 U.S.C. § 1456, and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332. Plaintiffs contend that the Project violates CZMA because it is inconsistent with Alaska’s coastal management program. Plaintiffs argue that the Project violates NEPA because the Postal Service’s final Environmental Assessment contains errors, omissions, and failures of analysis that invalidate its “Finding of No Significant Impact.” Because we find no infirmities under either CZMA or NEPA, we affirm the district court’s judgment. Background and Procedural History In response to an unsolicited suggestion of a cheaper means of delivering parcel mail to specified locations, the Postal Service proposed to conduct a two-year experimental program to determine the feasibility of using hovercraft for delivery of certain types of parcel mail to eight remote Alaskan villages-the Hovercraft Demonstration Project. Although hovercraft are capable of moving over land, the Postal Service’s plan was to use them only for travel on rivers. In 1995, the Postal Service issued a notice of intent to prepare a study of the environmental effects of conducting the Project. The initial scoping process identified several areas of concern, including the Project’s noise and potential effects on fish and wildlife, endangered species, subsistence activities, and commercial fishing. After consulting with the.U.S. Department of Transportation, the Postal Service prepared a draft Environmental Assessment in which it concluded that the Project would not have a significant impact on the environment. The Postal Service circulated the draft Environmental Assessment for public comment in April 1997. The United States Fish and Wildlife Service and the Alaska Department of Fish-and Game disagreed' with the Environmental Assessment’s conclusion that the impacts on fish, wildlife, and subsistence activities would be insignificant. Despite these objections, the Postal Service released the final Environmental Assessment and a Finding of No Significant Impact in July 1997. The Project commenced on July 14, 1997. Plaintiffs filed this action in the United States District Court for the District of Alaska, alleging violations of NEPA and CZMA. The district court granted summary judgment in favor of the Postal Service, and plaintiffs appealed. Standard of Review We review de novo a grant of summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998). Judicial review of actions under CZMA and NEPA ordinarily is governed by the Administrative Procedure Act (APA), 5 U.S.C. §§ 551-559, 701-706. The Postal Service presents a special case, however. The Postal Reorganization Act provides that, except to the extent that the Postal Service has adopted such laws as rules or regulations, “no Federal law dealing with public or Federal contracts, property, works, officers, employees, budgets, or funds, including the provisions of chapters 5 and 7 of title 5 [of the APA], shall apply to the exercise of the powers of the Postal Service.” 39 U.S.C. § 410(a). There is no longer any dispute that the Postal Service has adopted the relevant provisions of CZMA and NEPA, and that the standard of review of the APA applies. We therefore may set aside the Postal Service’s action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Anaheim Memorial Hosp. v. Shalala, 130 F.3d 845, 849 (9th Cir.1997). The “arbitrary or capricious” standard is appropriate for resolutions of factual disputes implicating substantial agency expertise. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376-77, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Purely legal questions are reviewed de novo. Wagner v. National Transp. Safety Bd., 86 F.3d 928, 930 (9th Cir.1996). I. Coastal Zone Management Act (CZMA) Plaintiffs contend that the Project violated CZMA. CZMA requires that development projects in a coastal zone must, “to the. maximum extent practicable,” be consistent with approved state management programs. 16 U.S.C. § 1456(c)(2). Federal agencies are required to provide state agencies with a consistency determination at least ninety days before final approval of a project unless both the federal agency and the state agency agree to a different schedule. 15 C.F.R. § 930.34(b). Once the consistency determination is submitted to the state, the “State agency shall inform the Federal agency of its agreement or disagreement with the Federal agency’s consistency determination.” 15 C.F.R. § 930.41(a). Under Alaska law, coastal zone activity must be “consistent with the applicable district program and [state] standards.” Alaska Admin. Code tit. 6, § 80.010(b). The applicable district management program for the Project is the Cenaliuriit Coastal Management Plan, and the relevant state program is the Alaska Coastal Management Program. See Alaska Stat. §§ 46.40.010, 46.40.030. Following the Postal Service’s consistency determination, .the Alaska Division of Governmental Coordination issued a Final Consistency Response concluding that, subject to four conditions, the Project is “consistent to the maximum extent practicable” with both the Alaska and the Cenal-iuriit Plans. Plaintiffs contend that, even with the four conditions, the Project violates the habitat and subsistence standards of the Alaska and Cenaliuriit Plans, thus violating CZMA’s consistency provisions. But the Alaska Division of Governmental Coordination and the Postal Service agreed that the Project was consistent with the Plans, and we will not set aside that agreed conclusion without a “compelling reason.” Save Lake Wash. v. Frank, 641 F.2d 1330, 1339 (9th Cir.1981). Plaintiffs contend that there are at least three such “compelling reasons”: (1) the Postal Service took action without waiting ninety days after the consistency determination, as required by regulation; (2) the Postal Service failed to comply with the conditions outlined in Alaska’s Consistency Determination; and (3) the Postal Service commenced the Project before Alaska actually issued its Final Consistency Response. We find none of these reasons compelling. A. The Ninety-Day Requirement There is no question that the Postal Service initiated the Project without waiting ninety days after it sent its consisr tency determination to the State. But the regulations require a ninety-day interval “unless both the Federal agency and the State agency agree to an alternative notification schedule.” 15 C.F.R. § 930.34(b); see also 15 C.F.R. § 930.41(c). Here, the administrative record is clear that the two agencies had agreed on a different time interval, but it does not specify what the interval is. The Postal Service asserts that the agreement was on a sixty-day interval, and it provided the district court with extra-record evidence supporting its contention-the transcript of a hearing of the Alaska Coastal Policy Council. The district court properly considered this evidence because it is explanatory “background information” that does not bear on the substantive merits of the agency’s decision. Asarco, Inc. v. United States Environmental Protection Agency, 616 F.2d 1153, 1159-60 (9th Cir.1980); see also Thompson v. United States Dep’t of Labor, 885 F.2d 551, 555 (9th Cir.1989). In light of the agreement between the agencies on a different period, the lack of a ninety-day interval is far from a compelling reason to interfere with the consistency agreement. B. The Postal Service’s Failure to Comply with Alaska’s Conditions Contrary to the contention of Plaintiffs, the Postal Service did submit a Draft Monitoring Plan to the State before initiating the Project, as required by one of the conditions insisted upon by the Alaska Division of Governmental Coordination. The Draft Monitoring Plan was submitted to the Alaska agency on July 11, 1997-three days prior to the commencement of the Project. C.Commencement of the Project Before the State Issued its Final Consistency Response Plaintiffs next argue that the Postal Service did not, in fact, rely on Alaska’s consistency determination because the Project commenced before Alaska issued its final consistency determination. The Postal Service did, however, receive Alaska’s preliminary consistency determination before the Project began, and that preliminary determination found that the Project was consistent with applicable state law. Alaska’s final consistency determination reached the same conclusion, albeit fifty-three days after the Project had' commenced. In short, the State and the Postal Service agreed that the Project is consistent with Alaska’s coastal management laws. Plaintiffs challenge to the timing of the final agreement does not present a compelling reason for upsetting it. Because Plaintiffs have failed to show any compelling reason for overturning the consistency agreement reached between the Postal Service and Alaska, we reject their arguments that the Postal Service violated the CZMA. II. National Environmental Policy Act (NEPA) The Postal Service prepared an Environmental Assessment to determine whether the Project’s impacts were likely to be “significant.” 40 C.F.R. §§ 1501.4, 1508.9(a). The Environmental Assessment was required to discuss the need for the Project, the alternatives to the Project, and its environmental impacts. See 40 C.F.R. § 1508.9(b). The Postal Service’s Environmental Assessment concluded with a “Finding of No Significant Impact” on the environment, which, if it stands, relieves the Postal Service' of the need to prepare a far more extensive Environmental Impact Statement before launching its Project. See 40 C.F.R. 1501.4(e). Plaintiffs challenge the validity of the Postal Service’s Environmental Assessment on the grounds that it: (1) fails to analyze adequately the environmental impacts of the project; (2) fails to explain adequately mitigation measures on which the Postal Service relies; and (3) fails to consider an acceptable range of alternatives, including the no-action alternative. We address each point. A. The Postal Service’s Analysis of Environmental Impacts Plaintiffs argue that the Environmental Assessment’s substantive conclusions are flawed. We note, first, that the scope of our review for such a claim is quite narrow. We ordinarily “must defer to the informed discretion of the responsible federal agencies.” Marsh, 490 U.S. at 377, 109 S.Ct. 1851 (internal quotation marks omitted). As the Postal Service points out, deference is accorded agency environmental determinations not because the agency possesses substantive expertise, but because the agency’s decision-making process is accorded a “presumption of regularity.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Although not immune from judicial scrutiny, agency decisions are subjected to the narrow “arbitrary and capricious” standard. Accordingly, we consider only whether the Postal Service’s decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. See id. at 416, 91 S.Ct. 814. Mindful of the limited scope of our review, we conclude that the Environmental Assessment is sufficiently well-documented and explained. To succeed in their challenge, Plaintiffs must demonstrate that the Postal Service failed to “articulate a rational connection between the facts found and the conclusions made.” Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997). Plaintiffs suggest that the Environmental Assessment’s analysis does not support the finding of no impact because: (1) the Postal Service had insufficient information to conclude that the project’s impact would be insignificant; and (2) the U.S. Fish and Wildlife Service, an agency with expertise in environmental issues, suggested that the Environmental Assessment’s conclusions were faulty. With respect to the first argument, plaintiffs point to many instances in which the Environmental Assessment states that various impacts “could” or “may” result from the project. On this basis, plaintiffs assert that the Environmental Assessment implicitly admits that insufficient data had been gathered on the likely impacts of the project. This argument is unpersuasive when all of the findings of the Environmental Assessment are considered as a whole. Although the Environmental Assessment does include some discussion of possible impacts, it does not conclude that there were substantial questions whether those impacts would occur and be significant. See Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir.1998). With respect to the second argument, plaintiffs point to the Fish and Wildlife Service’s comments on the draft Environmental Assessment. The Postal Service is not required, however, to defer to the Fish and Wildlife Service’s conclusions. NEPA requires only that the responsible agency “consider! ] these agencies’ initial concerns, address! 1 them, and ‘explain! ] why it found them unpersuasive.’ ” California Trout v. Schaefer, 58 F.3d 469, 475 (9th Cir.1995) (quoting Roanoke River Basin Ass’n v. Hudson, 940 F.2d 58, 64 (4th Cir.1991)). The Postal Service has clearly satisfied this requirement. In addition, the disagreement between the two agencies is not as great as Plaintiffs would have us believe. The Fish and Wildlife Service expressed concern that the Project might provide a long-term disturbance of roosting waterfowl along the Kuskokwim River, significantly affecting nesting and migration patterns. Because of this concern, the Fish and Wildlife Service recommended further study, including baseline studies, before issuance of the final Environmental Assessment. The Environmental Assessment carefully analyzes this issue and concludes that a short-term disturbance of roosting is the probable impact of the Project. The Fish and Wildlife Service itself concluded that “a short term disturbance of roosting of birds would probably not be significant.” It also conceded that comparison with control points outside the Project area would accomplish the purpose that would be served by baseline studies. Thus the Postal Service mustered sufficient record support for its finding of no significant environmental impact. B. Mitigation Measures Plaintiffs also complain that the Environmental Assessment does not outline specific, obligatory mitigation measures. The Supreme Court has made it clear, however, that “NEPA does not require a fully developed plan detailing what steps will be taken to mitigate adverse environmental impacts.” Robertson v. Methoiu Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (emphasis in original). The generalized, non-self-executing mitigation strategies outlined in the Environmental Assessment are, therefore, not unreasonable in light of the fact that the mitigation plans are designed to ameliorate unexpected environmental impacts. We must keep in mind that NEPA does not require that Environmental Assessments include a discussion of mitigation strategies. Although NEPA regulations do require a discussion of the “[m]eans to mitigate adverse environmental impacts,” 40 C.F.R. § 1502.16(h), this provision governs the preparation of an Environmental Impact Statement, not an Environmental Assessment. This distinction is critical. Federal agencies must prepare an Environmental Impact Statement when there are “ ‘substantial questions whether a project may have a significant effect’ on the environment.” Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir.1998) (quoting Idaho Sporting Congress, 137 F.3d at 1150), cert. denied, 527 U.S. 1003, 119 S.Ct. 2337, 144 L.Ed.2d 235 (1999). The Environmental Impact Statement then must include a reasonable discussion of strategies to mitigate these effects. See 40 C.F.R. § 1502.16(h). In this case, the Postal Service concluded, with adequate support in the record, that the Project would not have a significant impact on the environment, wholly apart from the success of the mitigation strategies' that were discussed. The Environmental Assessment recites: No mitigation for impacts on fish and wildlife is required for the two-year project due to the insignificance of all the impacts. However, the [Postal Service] has elected to implement a monitoring program oh birds and fish in an attempt to gather additional information during the pilot program. In addition, the Hovercraft Committee may gather, investigate, and document reports of impacts on birds, fish or fishers. In these circumstances, the tentativeness of some of the discussed mitigation measures does not cast doubt on the validity of the Environmental Assessment. C. Evaluation of Alternatives The Postal Service’s regulations require it to “[s]tudy, develop, describe, and evaluate, at all decision points, reasonable alternatives to recommended actions which may have a significant effect on the environment.” 39 C.F.R. § 775.8(a)(4). Plaintiffs contend that the Environmental Assessment falls short of this standard in two respects: (1) the Environmental Assessment includes an inadequate evaluation of the “no-action” alternative; and (2) the Environmental Assessment fails to consider a reasonable range of alternatives. The “no-action” alternative must receive some analysis. See City of Tenakee Springs v. Clough, 915 F.2d 1308, 1312 (9th Cir.1990). Although the Postal Service’s discussion is brief, the Environmental Assessment adequately considers the “no-action” alternative. See, e.g., Oregon Natural Resources Council v. Lyng, 882 F.2d 1417, 1423 n. 5 (9th Cir.1989), amended by 899 F.2d 1565 (9th Cir.1990). The Environmental Assessment equates the “no-action” alternative with the status quo; that is, delivery of mail by fixed-wing aircraft. Plaintiffs argue that no meaningful consideration of the “no-action” alternative is possible without baseline studies determining the environmental effects of mail delivery via fixed-wing aircraft. Given the Project’s objectives and the Postal Service’s statutory obligation to deliver mail to these remote locations, however, we do not consider it arbitrary or capricious for the Environmental Assessment in its table of comparative environmental consequences to characterize the environmental effects of the “no-action” alternative as “no change.” We also conclude that the Environmental Assessment considers a reasonable range of alternatives given the objectives of the Project. The Postal Service seeks to improve the reliability and efficiency of mail delivery service to remote Alaskan villages. The Postal Service was not required to consider alternatives that would not serve this reasonable purpose. See, e.g., City of Angoon v. Hodel, 803 F.2d 1016, 1021 (9th Cir.1986) (per curiam) (‘When the purpose is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved.”); Trout Unlimited v. Morton, 509 F.2d 1276, 1286 (9th Cir.1974) (“The range of alternatives that must be considered need not extend beyond those reasonably related to the purposes of the project.”). Therefore, it was permissible for the Environmental Assessment to reject the use of alternate transportation modes such as trucks, boats, or fixed-wing aircraft. It was the inefficiencies of these traditional alternatives that gave rise to the need for the experimental hovercraft Project in the first place. The Postal Service also considered discontinuing hovercraft operations during subsistence bird-hunting season. Because the Postal Service determined that the Project’s effects on waterfowl would be insignificant, the Postal Service reasonably rejected the more costly “seasonal use” option. The Environmental Assessment nevertheless states that this option (or, indeed, the option of discontinuing the Project altogether) may be adopted if Project monitoring indicates that unexpected adverse environmental impacts occur. In all, we conclude that the range of alternatives analyzed in the Environmental Assessment is “sufficient to permit a reasoned choice.” Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir.1973). Plaintiffs present no other substantial arguments that the Postal Service’s Environmental Assessment exceeds agency discretion or fails to comply with governing law. We accordingly reject Plaintiffs’ NEPA challenges. Conclusion Because we find no violations of CZMA or NEPA, we affirm the district court’s summary judgment in favor of the Postal Service. AFFIRMED. . For the reasons stated in our preceding paragraph, we also reject Plaintiffs' suggestion that the evidence of the Draft’s submission is inadmissible as being outside the administrative record. . Plaintiffs cite Nealon v. California Stevedore & Ballast Co., 996 F.2d 966 (9th Cir.1993), for the proposition that agency deference stems from judicial recognition of substantial agency expertise. Id. at 969 (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Nealon, however, concerned judicial deference to an agency’s interpretation of regulations pursuant to Chevron, not to an agency’s determination of fact.