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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES S. DEATON; REBECCA DEATON,No. 02-1442
Defendants-Appellants,
THE CHESAPEAKE BAY FOUNDATION,
INCORPORATED; STATE OF MARYLAND,
DEPARTMENT OF THE ENVIRONMENT,
Amici Supporting Appellee.
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Appeal from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, District Judge. (CA-95-2140-MJG)
Argued: December 5, 2002
Decided: June 12, 2003
Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.
____________________________________________________________
Affirmed by published opinion. Judge Michael wrote the opinion, in
which Judge Wilkinson and Judge Luttig joined.
____________________________________________________________
COUNSEL
ARGUED: Raymond Stevens Smethurst, Jr., ADKINS, POTTS &
SMETHURST, L.L.P., Salisbury, Maryland, for Appellants. James
Clarke Howard, Assistant United States Attorney, Baltimore, Mary-
land, for Appellee. ON BRIEF: Virginia S. Albrecht, Stephen M.
Nickelsburg, HUNTON & WILLIAMS, Washington, D.C.; Duane J.
Desiderio, Thomas Jon Ward, NATIONAL ASSOCIATION OF
HOME BUILDERS, Washington, D.C., for Appellants. Thomas M.
DiBiagio, United States Attorney, Thomas L. Sansonetti, Assistant
Attorney General, Greer S. Goldman, Ethan G. Shenkman, Environ-
ment & Natural Resources Division, UNITED STATES DEPART-
MENT OF JUSTICE, Baltimore, Maryland, for Appellee. Roy A.
Hoagland, Denise Stranko, THE CHESAPEAKE BAY FOUNDA-
TION, INC., Annapolis, Maryland; Janice L. Goldman-Carter, Edina,
Minnesota, for Amicus Curiae Foundation. J. Joseph Curran, Jr.,
Attorney General of Maryland, Adam D. Snyder, Assistant Attorney
General, Baltimore, Maryland, for Amicus Curiae State.
____________________________________________________________
OPINION
MICHAEL, Circuit Judge:
This is the second appeal by James and Rebecca Deaton, who were
sued by the government under the Clean Water Act (sometimes, "the
CWA" or "the Act"), 33 U.S.C. § 1251 et seq., for failing to obtain
a permit from the U.S. Army Corps of Engineers (the Corps) before
digging a ditch and depositing excavated dirt in wetlands on their
property. The Corps asserts jurisdiction because the Deatons' wet-
lands are adjacent to, and drain into, a roadside ditch whose waters
eventually flow into the navigable Wicomico River and Chesapeake
Bay. The Deatons' main argument is that the Corps has no authority
over the roadside ditch, and thus the agency cannot regulate their wet-
lands. First, we hold that Congress's power under the Commerce
Clause to protect navigable waters allows it to regulate the discharge
of pollutants that flow into the ditch. Congress delegated part of this
authority to the Corps in the Clean Water Act. The Corps, in turn, has
promulgated a regulation, 33 C.F.R. § 328.3(a)(5), that extends CWA
jurisdiction to tributaries of navigable waters. This regulation repre-
sents a reasonable interpretation of the CWA that is entitled to defer-
ence. The Corps interprets its regulation to cover the roadside ditch,
and we also defer to that interpretation. Second, we hold that the dis-
trict court did not err when it decided that the Corps used an appropri-
2
ate indicator for wetland hydrology (prescribed by its Wetlands
Delineation Manual) in designating parts of the Deatons' property as
wetlands. Finally, we affirm the district court's remediation order,
which requires the Deatons to fill in the ditch and restore their wet-
lands to their pre-violation condition.
I.
The Delmarva Peninsula separates the Chesapeake Bay from the
Atlantic Ocean. Since 1989 the Deatons have owned an undeveloped,
twelve-acre parcel of land located roughly in the center of the penin-
sula, near Parsonsburg in Wicomico County, Maryland. The parcel
slopes gently downhill toward a county road, Morris Leonard Road.
A drainage ditch runs alongside the road between the pavement and
the Deatons' property. The Deatons call the ditch the "Morris Leonard
Road ditch," while the Corps calls it the "John Adkins Prong of Per-
due Creek." We will call it the "roadside ditch." The parties agree that
surface water from the Deatons' property drains into the roadside
ditch. They disagree about how much water flows through the ditch,
and how consistent the flow is, but they agree on the ditch's course.
Water from the roadside ditch takes a winding, thirty-two-mile path
to the Chesapeake Bay. At the northwest edge of the Deatons' prop-
erty, the roadside ditch drains into a culvert under Morris Leonard
Road. On the other side of the road, the culvert drains into another
ditch, known as the John Adkins Prong of Perdue Creek. Perdue
Creek flows into Beaverdam Creek, a natural watercourse with sev-
eral dams and ponds. Beaverdam Creek is a direct tributary of the
Wicomico River, which is navigable. Beaverdam Creek empties into
the Wicomico River about eight miles from the Deatons' property.
About twenty-five river miles further downstream, the Wicomico
River flows into the Chesapeake Bay, a vast body of navigable water.
The Deatons bought the twelve-acre parcel for the purpose of
developing a small (five-lot) residential subdivision. There was a
problem, however, because much of the property was poorly drained.
In particular, there was a large, low, wet area in the middle where
water stood in the winter months and after heavy rainfall. Because of
the drainage problem, the Wicomico County Health Department
denied the Deatons' application for a sewage disposal permit. The
Deatons then decided to dig a drainage ditch across the property. A
3
technician from the U.S. Soil Conservation Service (SCS) advised
Mr. Deaton, however, that a large portion of the property contained
nontidal wetlands and that he would need a permit from the Corps
before undertaking any ditching work. In early 1990 the Deatons,
without seeking a Corps permit, hired a contractor who dug a 1,100-
foot ditch that crossed the areas of the property identified as wetlands
by the SCS technician. The contractor piled the excavated dirt on
either side of the ditch, a practice known as sidecasting.
The Corps learned about the Deatons' ditching project in July 1990
and promptly initiated regulatory action. The details are discussed in
our prior opinion, United States v. Deaton, 209 F.3d 331, 333 (4th
Cir. 2000). In short, the Corps issued a stop-work order to the Dea-
tons, warning them that their placement of fill material in a wetland
violated § 404(a) of the Clean Water Act, 33 U.S.C. § 1344(a), and
that no further work should be done without a permit. After a period
of lengthy, but unsuccessful, negotiations with the Deatons, the gov-
ernment in 1995 filed a civil complaint alleging that the Deatons had
violated the Clean Water Act by discharging fill material into regu-
lated wetlands without a permit. The district court ultimately con-
cluded in the first round that sidecasting did not constitute the
discharge of a pollutant under the Act and granted summary judgment
to the Deatons. We reversed, holding that "the Clean Water Act's def-
inition of discharge as `any addition of any pollutant to navigable
waters' encompasses sidecasting in a wetland." Deaton, 209 F.3d at
337 (referring to 33 U.S.C. § 1362(12)). We remanded the case for
further proceedings.
Not long after our remand order, the Supreme Court decided Solid
Waste Agency of Northern Cook County v. United States Army Corps
of Engineers, 531 U.S. 159 (2001) (SWANCC ). SWANCC held that
the Corps exceeded its statutory authority under § 404(a) of the Clean
Water Act when it interpreted the Act (through 33 C.F.R.
§ 328.3(a)(3) and the Migratory Bird Rule, 51 Fed. Reg. 41,217
(1986)) to cover an isolated, intrastate gravel pit that was filled with
water and used by migratory birds. Id. at 162-63, 174. Because
SWANCC provides new guidance for analyzing the Corps's jurisdic-
tion under the Clean Water Act, the Deatons filed a motion on Sep-
tember 10, 2001, asking the district court to reconsider the issue of
CWA jurisdiction in this case. The Deatons argued that under
4
SWANCC the Clean Water Act cannot be read to extend Corps juris-
diction to their wetlands or the roadside ditch and that if the Act does
extend that far, Congress exceeded its authority under the Commerce
Clause, U.S. Const. Art. I, § 8, cl. 3. On January 29, 2002, the district
court entered an order denying the motion to reconsider, holding (1)
that the Deatons' wetlands are adjacent to the roadside ditch, which
is a tributary of navigable waters, (2) that "[b]ecause there is a hydro-
logic connection between the Deaton wetlands and navigable waters,"
SWANCC does not bar CWA jurisdiction, and (3) that protecting the
Deatons' wetlands is reasonably related to Congress's authority under
the Commerce Clause to protect navigable waters as channels of com-
merce. Five days later, on February 4, 2002, the district court entered
a remediation order directing the Deatons to restore their property "to
its pre-violation condition and elevation." The Deatons appeal these
orders.
II.
A.
The Deatons' appeal of the district court's order denying their
motion to reconsider Clean Water Act (or Corps) jurisdiction presents
a question of law that we review de novo. See Meekins v. United
Transp. Union, 946 F.2d 1054, 1057 (4th Cir. 1991). We begin with
the statutory and regulatory framework for Corps jurisdiction in this
case. Section 404(a) of the Clean Water Act requires a permit issued
by the Secretary of the Army, through the Corps of Engineers, for the
discharge of fill material into "navigable waters." 42 U.S.C.
§ 1344(a), (d). The Act defines "navigable waters" as "waters of the
United States, including the territorial seas." 42 U.S.C. § 1362(7). The
Corps's jurisdictional regulations define "waters of the United States"
to include, among others, (i) traditional navigable waters, that is, "wa-
ters which are currently used, or were used in the past, or may be sus-
ceptible to use in interstate or foreign commerce," 33 C.F.R.
§ 328.3(a)(1), (ii) tributaries of covered waters, including traditional
navigable waters, id. § 328.3(a)(5), and (iii) wetlands adjacent to cov-
ered waters, including tributaries, id. § 328.3(a)(7). The Corps asserts
jurisdiction over the Deatons' wetlands because they are adjacent to
the roadside ditch, which is a tributary of the Wicomico River, a tradi-
tional navigable water.
5
In United States v. Riverside Bayview Homes, 474 U.S. 121 (1985),
the Supreme Court upheld Corps regulations "requir[ing] permits for
the discharge of fill material into wetlands adjacent to the `waters of
the United States.'" Id. at 139. Several courts have held that SWANCC
limited this holding to wetlands adjacent to traditional navigable
waters. E.g., Rice v. Harken Energy Co., 250 F.3d 264, 268-69 (5th
Cir. 2001); United States v. RGM Corp, 222 F.Supp. 2d 780, 785-86
(E.D. Va. 2002); United States v. Newdunn Assocs., 195 F. Supp. 2d
751, 763, 767-68 (E.D. Va. 2002), appeal pending sub nom. Treacy
v. Newdunn Assocs., No. 02-1480(L) (4th Cir.); United States v.
Rapanos, 190 F.Supp. 2d 1011, 1015-16 (E.D. Mich. 2002). The Dea-
tons do not press for that limitation here. They argue instead that the
roadside ditch is not covered by the Clean Water Act, which means
that their wetlands are not adjacent to any covered water. As a result,
the Deatons say, they did not need a permit to discharge fill material
into their wetlands. It is undisputed that the Deatons' wetlands are
adjacent to the roadside ditch. Thus, if the ditch is covered, so are the
wetlands. Our analysis, then, will focus on whether the Corps has
jurisdiction over the roadside ditch.
B.
The Deatons first argue that the Corps's tributaries regulation,
which interprets the Clean Water Act to reach the roadside ditch,
pushes the limits of Congressional authority under the Commerce
Clause and thereby raises a serious constitutional question. According
to the Deatons, Congress did not give a clear indication that it
intended the Act to reach tributaries so far from navigable waters, and
therefore we should avoid the question of whether regulation of the
ditch is constitutional by holding that Congress did not authorize it
under the Act. The Deatons argue in the alternative that even if Con-
gress authorized the Corps's regulation of the roadside ditch under the
CWA, that authorization is invalid because it exceeds Congress's
power under the Commerce Clause. The Corps, of course, contends
that its assertion of CWA jurisdiction over the roadside ditch through
its tributaries regulation, 33 C.F.R. § 328.3(a)(5), represents a proper
exercise of power granted to Congress by the Constitution and dele-
gated to the Corps. For the reasons that follow, we hold that the
CWA, as implemented by the Corps's regulation, fits comfortably
within Congress's authority to regulate navigable waters.
6
The regulation reflects the Corps's interpretation of the CWA, and
the Deatons' arguments require us to undertake a somewhat compli-
cated analysis. The Deatons begin their first argument by saying that
the Corps's regulation cannot survive the threshold analysis required
by SWANCC: when "an administrative interpretation of a statute
invokes the outer limits of Congress' power," the interpretation is not
entitled to deference under Chevron U.S.A. v. Natural Resources
Defense Council, 467 U.S. 837 (1984), unless Congress gave "a clear
indication that [it] intended that result." SWANCC, 531 U.S. at 172
(citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. and Con-
str. Trades Council, 485 U.S. 568, 575 (1988)). This requirement, the
Court said, stems from a "prudential desire not to needlessly reach
constitutional issues and [an] assumption that Congress does not casu-
ally authorize administrative agencies to interpret a statute to push the
limit of congressional authority." Id. at 172-73. Moreover, "[t]his con-
cern is heightened where the administrative interpretation alters the
federal-state framework by permitting federal encroachment upon a
traditional state power." Id. at 173. "Thus, `where an otherwise
acceptable construction of a statute would raise serious constitutional
problems, [courts] will construe the statute to avoid such problems
unless such construction is plainly contrary to the intent of Con-
gress.'" Id. at 173 (quoting DeBartolo, 485 U.S. at 575).
SWANCC and DeBartolo must be read in light of Rust v. Sullivan,
500 U.S. 173 (1991). See Williams v. Babbitt, 115 F.3d 657, 661-63
(9th Cir. 1997) (comparing DeBartolo and Rust). In Rust the Supreme
Court proceeded to decide the constitutionality of an agency's regula-
tions because, while the constitutional arguments against the regula-
tions had "some force," the arguments did not "raise the sort of grave
and doubtful constitutional questions" that would require a clear indi-
cation from Congress that it intended to authorize the agency's inter-
pretation. Rust, 500 U.S. at 191 (internal quotation marks and citation
omitted). Thus, the Court said, it did not have to "invalidate the regu-
lations in order to save the statute from unconstitutionality." Id. In
sum, when "we do not face the sort of serious constitutional questions
`that would lead us to assume Congress did not intend to authorize
[the regulation's] issuance,'" we may decide the constitutional ques-
tion and proceed to the Chevron analysis. Republican Nat'l Comm. v.
Fed. Election Comm'n, 76 F.3d 400, 409 (D.C. Cir. 1996) (quoting
Rust, 500 U.S. at 191).
7
Our initial task is to determine whether the constitutional question
- does the Commerce Clause give Congress authority over the road-
side ditch - is serious enough to warrant rejection of the Corps's reg-
ulation. The Commerce Clause of our Constitution grants Congress
authority over three distinct spheres: "[1] the use of the channels of
interstate commerce . . . [2] the instrumentalities of interstate com-
merce, or persons or things in interstate commerce . . . [and 3] those
activities having a substantial relation to interstate commerce." United
States v. Lopez, 514 U.S. 549, 558-59 (1995). The activities regulated
under the third category must be "economic in nature." United States
v. Morrison, 529 U.S. 598, 613 (2000). See also GDF Realty Invs.,
Inc. v. Norton, 326 F.3d 622, 633-36 (5th Cir. 2003). Congress
enacted the Clean Water Act under "its traditional jurisdiction over
waters that were or had been navigable in fact or which could reason-
ably be so made." SWANCC, 531 U.S. at 172. See also id. at 168 n.3.
The power over navigable waters is an aspect of the authority to regu-
late the channels of interstate commerce. Gibbs v. Babbitt, 214 F.3d
483, 490-91 (4th Cir. 2000) (including "navigable rivers, lakes, and
canals" among the channels of commerce) (citation omitted); United
States v. Ballinger, 312 F.3d 1264, 1269 (11th Cir. 2002).
Congress's power over the channels of interstate commerce, unlike
its power to regulate activities with a substantial relation to interstate
commerce, reaches beyond the regulation of activities that are purely
economic in nature. The power to regulate channels of interstate com-
merce allows Congress to make laws that protect the flow of com-
merce. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S.
241, 257 (1964) (upholding congressional power to bar racial discrim-
ination in hotels because this discrimination had a "disruptive effect
. . . on commercial intercourse"); United States v. Darby, 312 U.S.
100, 114-15 (1941) (upholding congressional power to forbid inter-
state commerce in goods made by child labor because traffic in such
goods encourages "competition . . . injurious to the commerce").
Some of the power exercised by Congress in enacting the Clean
Water Act is grounded in the authority to protect the flow of com-
merce in "navigable waters as channels or instrumentalities of inter-
state commerce." United States v. Wilson, 133 F.3d 251, 256 (4th Cir.
1997). See also United States v. Ashland Oil & Transp. Co., 504 F.2d
1317, 1325-26 (6th Cir. 1974) (noting hazards to navigation posed by
pollution).
8
The Deatons argue that the power over navigable waters is limited
to legislation aimed at protecting or encouraging navigation and the
flow of commerce. However, the Supreme Court cases discussing
congressional power over channels of interstate commerce make clear
that this view is too narrow. Congressional power to regulate the use
of commercial channels goes further: "the authority of Congress to
keep the channels of interstate commerce free from immoral and inju-
rious uses has been frequently sustained . . . ." Caminetti v. United
States, 242 U.S. 470, 491 (1917) (quoted in Lopez, 514 U.S. at 558).
In Caminetti the Supreme Court held that the Mann Act, which barred
the transport of "any woman or girl" in interstate channels for an "im-
moral purpose" was within congressional authority, even though the
defendant's conduct - transporting a woman across state lines to "be
and become his mistress and concubine" - was entirely noncommer-
cial. Id. at 483, 485; see also Perez v. United States, 402 U.S. 146,
150 (1971) (acknowledging congressional power to regulate "the use
of channels of interstate . . . commerce which Congress deems are
being misused"); Heart of Atlanta Motel, 379 U.S. at 256 (citing
Caminetti); cf. Ballinger, 312 F.3d at 1270 ("Congress may regulate
any instrumentality or channel of interstate commerce . . . ."); United
States v. Horton, 321 F.3d 476, 481 n.3 (4th Cir. 2003) (reading fed-
eral kidnapping statute as exercise of congressional power to prevent
"misuse" of channels of commerce by a kidnapper trying "to cover up
his trail by moving evidence of his crime into a different state's juris-
diction"). But cf. United States v. Abdullah, 162 F.3d 897, 901 (6th
Cir. 1998) (suggesting that a statute enacted under this authority must
have as its purpose "to keep open the very avenues by which inter-
state commerce is transacted"). The Deatons are correct that many
cases concerning the power over navigable waters focus on congres-
sional authority to regulate in aid of navigation. E.g., Gilman v. Phila-
delphia, 70 U.S. (3 Wall.) 713, 724-25 (1866); United States v.
Appalachian Elec. Power Co., 311 U.S. 377, 404-05 (1940). But there
is no reason to believe Congress has less power over navigable waters
than over other interstate channels such as highways, which may be
regulated to prevent their "immoral and injurious use[ ]." Caminetti,
242 U.S. at 491.
Congress's authority over the channels of commerce is thus broad
enough to allow it to legislate, as it did in the Clean Water Act, to pre-
vent the use of navigable waters for injurious purposes. See Cami-
9
netti, 242 U.S. at 491; Lopez, 514 U.S. at 558. For example, Congress
may outlaw the use of navigable waters as dumping grounds for fill
material. The power over navigable waters also carries with it the
authority to regulate nonnavigable waters when that regulation is nec-
essary to achieve Congressional goals in protecting navigable waters.
See Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508,
525-26 (1941); United States v. Rio Grande Dam Irrigation Co., 174
U.S. 690, 708-09 (1899); see also United States v. Grand River Dam
Auth., 363 U.S. 229, 232 (1960). Any pollutant or fill material that
degrades water quality in a tributary of navigable waters has the
potential to move downstream and degrade the quality of the naviga-
ble waters themselves. Indeed, the principle that Congress has the
authority to regulate discharges into nonnavigable tributaries in order
to protect navigable waters has long been applied to the Clean Water
Act. See, e.g., Ashland Oil, 504 F.2d at 1325-29; cf. United States v.
Hartsell, 127 F.3d 343, 348-49 (4th Cir. 1997). The Deatons argue
that their discharge (or sidecasting of dirt) into wetlands adjacent to
the roadside ditch is too trivial to affect water quality in navigable
waters. Congress, however, may decide that the aggregate effect of all
of the individual instances of discharge, like the discharge by the Dea-
tons, justifies regulating each of them. See Wickard v. Filburn, 317
U.S. 111 (1942). And if Congress itself has the authority to make that
decision, it may delegate it to the Corps, as long as it provides an "in-
telligible principle" to guide the agency's decisionmaking. See, e.g.,
J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928);
Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 218-24 (1989); see
also Darby, 312 U.S. at 120-21. Congress passed the Clean Water Act
"to restore and maintain the chemical, physical, and biological integ-
rity of the Nation's waters," 33 U.S.C. § 1251(a), and gave the Corps,
along with the Environmental Protection Agency, the job of getting
this done. The Corps has pursued this goal by regulating nonnaviga-
ble tributaries and their adjacent wetlands. This use of delegated
authority is well within Congress's traditional power over navigable
waters.
It follows that under the Corps's interpretation, the Clean Water
Act does not invade an area of authority reserved to the states. The
power to protect navigable waters is part of the commerce power
given to Congress by the Constitution, and this power exists alongside
the states' traditional police powers. "Although States have important
10
interests in regulating . . . natural resources within their borders, this
authority is shared with the Federal Government when the Federal
Government exercises one of its enumerated powers . . . ." Minnesota
v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204 (1999).
Cf. Gibbs, 214 F.3d at 499-501 (concluding that the application of the
Endangered Species Act to private land does not unconstitutionally
interfere with local power over land use or wildlife); GDF Realty
Invs., 326 F.3d at 639 (same). The federal decision to regulate the dis-
charge of pollutants into tributaries of navigable waters does not "sig-
nificantly change[ ] the federal-state balance." See United States v.
Bass, 404 U.S. 336, 349 (1971).
In sum, the Corps's regulatory interpretation of the term "waters of
the United States" as encompassing nonnavigable tributaries of navi-
gable waters does not invoke the outer limits of Congress's power or
alter the federal-state framework. The agency's interpretation of the
statute therefore does not present a serious constitutional question that
would cause us to assume that Congress did not intend to authorize
the regulation. Indeed, as our discussion of Congress's Commerce
Clause authority makes clear, the federal assertion of jurisdiction over
nonnavigable tributaries of navigable waters is constitutional.
C.
The thrust of the Deatons' final argument about the Corps's juris-
diction is this: even if the Corps could regulate the roadside ditch
without causing a constitutional problem, neither the Clean Water Act
nor the Corps's regulation extends coverage to the ditch. Here, the
Deatons make a two-part argument. First, they argue that even if the
Act authorizes the Corps to regulate the nonnavigable tributaries of
navigable waters, the roadside ditch is not such a tributary. They say
that the ditch does not meet the definition of "tributary" at all or, alter-
natively, it is not a tributary of a navigable water because water flow-
ing from the ditch must pass through several other nonnavigable
watercourses before reaching the navigable Wicomico River. In short,
the Deatons are arguing here that the Corps is misinterpreting its own
regulation by using the tributaries provision, 33 C.F.R. § 328.3(a)(5),
to assert jurisdiction over the roadside ditch. Second, they argue that
if the tributary regulation does cover the ditch, the regulation is an
unreasonable interpretation of the CWA. We hold that we should
11
defer to the Corps's interpretation of its regulation to include the ditch
and that the regulation, read this way, is a reasonable interpretation
of the Clean Water Act.
This finally brings us to Chevron, and we analyze the Deatons'
statutory and regulatory coverage arguments as follows. We begin
with the first step of the Chevron analysis, see 467 U.S. at 842, and
determine whether the Clean Water Act delegates authority to the
Corps to decide whether to regulate nonnavigable tributaries. Specifi-
cally, we ask "whether Congress has directly spoken to the precise
question at issue." Id. When Congress has not spoken directly, but
instead has been "silent or ambiguous" on the issue, it has by implica-
tion delegated authority to the agency charged with administering the
statute, allowing the agency to clarify the ambiguity or fill the gap.
Id. at 843-45. See also Smiley v. Citibank (South Dakota), N.A., 517
U.S. 735, 742 (1996). If we conclude that the statute is silent or
ambiguous, we normally move directly to the second step in the
Chevron analysis, see 467 U.S. at 843, and determine whether the
agency's regulation reflects a reasonable construction of the statute,
id.
In this case, however, we are sidetracked by another issue: the
meaning of the regulation itself. The Corps interprets its regulation to
cover the roadside ditch, but the Deatons contend that the Corps's
interpretation cannot be squared with the words of the regulation. As
a result of this dispute, we must, before proceeding to Chevron's step
two, determine what the regulation actually means. Kentuckians for
the Commonwealth v. Rivenburgh, 317 F.3d 425, 439 (4th Cir. 2003).
We give "controlling weight" to an agency's interpretation of its own
regulation, "unless [the interpretation] is plainly erroneous or incon-
sistent with the regulation." Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 413-14 (1945). See also Auer v. Robbins, 519 U.S. 452,
461 (1997); Kentuckians, 317 F.3d at 439; United States v. Hoechst
Celanese Corp., 128 F.3d 216, 221 (4th Cir. 1997). If the regulation
is unambiguous, then what is known as Seminole Rock deference does
not apply, and the regulation's plain language, not the agency's inter-
pretation, controls. Christensen v. Harris County, 529 U.S. 576, 588
(2000). Once we have determined what the regulation means, we can
move on to the second step of Chevron, 467 U.S. at 843, and decide
whether the regulation is based on a reasonable construction of the
12
statute. See Kentuckians, 317 F.3d at 439-40 (combining use of Semi-
nole Rock and Chevron tests).
We turn to the initial question of whether the statute is ambiguous.
If Congress has "spoken to the precise question at issue," there is no
ambiguity and thus no room for the agency interpretation. Chevron,
467 U.S. at 842-43. The precise question here is whether the Clean
Water Act extends to distant, nonnavigable tributaries of navigable
waters. Section 404(a) of the CWA regulates discharges into "naviga-
ble waters," 42 U.S.C. § 1344(a), and the Act defines "navigable
waters" as "waters of the United States," id. § 1362(7). The Corps's
regulations interpret the term "waters of the United States." If Con-
gress had stopped with the basic term "navigable waters," the term
used in § 404(a), 42 U.S.C. § 1344(a), many years of judicial prece-
dent would give us the following clear meaning:"[waters] are naviga-
ble 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." The Daniel Ball, 77 U.S. (10 Wall.) 557, 563
(1871). See also Appalachian Elec. Power Co., 311 U.S. at 404-10.
In the Clean Water Act Congress elected to redefine "navigable
waters," moving away from the traditional definition. Its choice of the
expansive phrase "waters of the United States" indicates an intent to
"regulate at least some waters that would not be deemed `navigable'
under the classical understanding of that term." Riverside Bayview,
474 U.S. at 133.
SWANCC, of course, emphasizes that the CWA is based on Con-
gress's power over navigable waters, suggesting that covered non-
navigable waters are those with some connection to navigable ones.
See SWANCC, 531 U.S. at 167, 172. But we cannot tell from the Act
the extent to which nonnavigable tributaries are covered. The statu-
tory term "waters of the United States" is sufficiently ambiguous to
constitute an implied delegation of authority to the Corps; this author-
ity permits the Corps to determine which waters are to be covered
within the range suggested by SWANCC. See Chevron, 467 U.S. at
843 ("`The power of an administrative agency to administer a con-
gressionally created . . . program necessarily requires . . . the making
of rules to fill any gap left . . . by Congress.'") (quoting Morton v.
Ruiz, 415 U.S. 199, 231 (1974)).
13
We next look for the meaning of the regulation promulgated under
this delegated authority. Before deferring to the agency interpretation
under Seminole Rock, we first decide whether the regulation is ambig-
uous. Christensen, 529 U.S. at 588. The regulation, 33 C.F.R.
§ 328.3(a)(5), defines "waters of the United States" to include tribu-
taries of navigable waters. The Deatons argue that it is wrong to read
the regulation to reach all branches of a system that eventually flow
into a navigable waterway. They contend that the term "tributary" in
the regulation refers only to a nonnavigable branch that empties
directly into a navigable waterway. Thus, they say, the roadside ditch
is not a tributary of the navigable Wicomico River. We must decide
whether this issue is settled by the plain language of the regulation.
Webster's Third New International Dictionary (1993) defines "trib-
utary" as (1) "providing with or serving as a channel for supplies or
additional matter" or (2) "one that is tributary to another: as . . . a
stream." According to this definition, "tributary" in the regulation
would encompass the entire feeder system for a navigable water
because even a stream many branches away eventually provides "ad-
ditional matter" for the navigable water. On the other hand, Webster's
II New Riverside University Dictionary (1988) defines tributary as
"[a] river or stream flowing into a larger river or stream." Under this
definition a watercourse like the roadside ditch appears to be a tribu-
tary, but it is not clear that it would be a tributary of a larger river sev-
eral branches downstream. It could be read to mean that only streams
flowing directly into a larger river are the larger river's tributaries.
The dictionaries thus agree that the roadside ditch is a tributary, but
they do not settle the question of whether it is a tributary of a naviga-
ble water (here, the Wicomico River), which is what the regulation
covers. "The existence of alternative dictionary definitions of the
word `[tributary],' each making some sense under the [regulation],
itself indicates that the [regulation] is open to interpretation." Nat'l
R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 418
(1992). We conclude that the regulation is ambiguous on the question
of how far the coverage of tributaries extends. We therefore turn to
the agency's interpretation.
The Corps asserts in its brief that "tributaries" in the regulation
means "all tributaries," not just "`short' or `primary' tributaries."
Appellee's Br. at 37. In the preamble to a prior generation of CWA
14
regulations, the agency wrote that "Corps jurisdiction . . . would
extend to . . . all tributaries (primary, secondary, tertiary, etc) of navi-
gable waters." 40 Fed. Reg. 31,320 (1975) (emphasis added). As the
Deatons point out, these old regulations cut off Corps jurisdiction at
the "headwaters" of a tributary, defined by a minimum water flow that
the roadside ditch would not meet. Id. at 31,321, 31,324. But we are
concerned here with the definition of the word "tributary." Although
the Corps has not always chosen to regulate all tributaries, it has
always used the word to mean the entire tributary system, that is, all
of the streams whose water eventually flows into navigable waters.
Cf. Headwaters, Inc. v. Talent Irrigation Dist. 243 F.3d 526, 533 (9th
Cir. 2001) (considering "tributary" to reach all branches of a system
without referring to Corps's interpretation). Because the Corps's
longstanding interpretation of the word "tributary" has support in the
dictionary and elsewhere, it is not plainly erroneous. Nor is it incon-
sistent with the regulation. The interpretation is therefore entitled to
Seminole Rock deference. In short, the word "tributaries" in the regu-
lation means what the Corps says it means.
Now that we know the meaning of the regulation - jurisdiction
extends to any branch of a tributary system that eventually flows into
a navigable body of water - we can proceed to step two of the Chev-
ron inquiry: is the regulation "based on a permissible construction" of
the Clean Water Act. Chevron, 467 U.S. at 843. The Deatons rely on
a passage from SWANCC to assert that the Corps's current jurisdic-
tional interpretation cannot be reasonable. In SWANCC the Supreme
Court said that the Corps had "put forth no persuasive evidence that
[it] mistook Congress' intent" when it promulgated the first set of
CWA regulations in 1974, shortly after the Act was passed.
SWANCC, 531 U.S. at 168. The first regulations were narrow, reach-
ing only navigable waters. See 39 Fed. Reg. 12,115, 12,119 (1974).
We do not read SWANCC to hold that the 1974 regulations repre-
sent the only permissible interpretation of the Clean Water Act. Those
regulations captured what SWANCC holds to be Congress's general
intent in enacting the CWA, that is, to exercise its power over naviga-
ble waters for the purpose of protecting their chemical, physical, and
biological integrity. See SWANCC, 531 U.S. at 166, 172 (citing 33
U.S.C. § 1251(a)). In the case before us, however, our conclusion in
step one of the Chevron inquiry - that the CWA is ambiguous when
15
it comes to jurisdictional coverage - shows that Congress intended
to delegate authority to the Corps to decide how far coverage must
extend in order to protect the navigable waters. We defer to an agen-
cy's reasonable interpretation not because the agency is in a better
position to know what Congress really wanted, but "because of a pre-
sumption that Congress, when it left ambiguity in a statute meant for
implementation by an agency, understood that the ambiguity would
be resolved, first and foremost, by the agency, and desired the agency
(rather than the courts) to possess whatever degree of discretion the
ambiguity allows." Smiley, 517 U.S. at 740-41. Over the years, the
Corps's understanding of the best way to exercise its discretion under
the CWA has evolved. See Newdunn Assocs., 195 F. Supp. 2d at 759-
62 & n.8 (detailing changes to Corps's CWA jurisdictional regula-
tions through revisions and interpretations in 1974, 1975, 1977, 1982,
1986, and 1990).
To conclude that the Corps's current interpretation is reasonable,
"we need not find that [its interpretation] is the only permissible con-
struction . . . but only that [the agency's] understanding of this . . .
statute is a sufficiently rational one to preclude a court from substitut-
ing its judgment for [the agency's]." Chem. Mfrs. Ass'n v. Natural
Res. Def. Council, Inc., 470 U.S. 116, 125 (1985) (quotation marks
omitted). An agency is allowed to change its mind, so long as its new
interpretation is reasonable. Smiley, 517 U.S. at 742. In other words,
"the mere fact that an agency interpretation contradicts a prior agency
position is not fatal." Id.See also Rust, 500 U.S. at 186-87; Chevron,
467 U.S. at 863-64; United States v. Mead Corp, 533 U.S. 218, 247
(2001) (Scalia, J., dissenting) ("Where Chevron applies, statutory
ambiguities remain ambiguities subject to the agency's ongoing clari-
fication."); Piney Mtn. Coal Co. v. Mays, 176 F.3d 753, 766-67 (4th
Cir. 1999); Mass. v. FDIC, 102 F.3d 615, 621 (1st Cir. 1996). There
is no suggestion that the Corps's current interpretation represents a
"[s]udden and unexplained change" or that it "does not take account
of legitimate reliance on prior interpretation." Smiley, 517 U.S. at 742
(citing Motor Vehicle Mfrs. Ass'n of United States, Inc v. State Farm
Mut. Auto. Ins. Co, 463 U.S. 29, 46-57 (1983); United States v. Pa.
Indus. Chem. Corp., 411 U.S. 655, 670-75 (1973); NLRB v. Bell
Aerospace Co., 416 U.S. 267, 295 (1974)).
Accordingly, if the Corps's current interpretation, 33 C.F.R.
§ 328.3(a)(5), is based on a reasonable construction of the statute, we
16
will defer to the Corps. We conclude that deference is appropriate. In
Riverside Bayview the Supreme Court concluded that the Corps regu-
lation extending jurisdiction to adjacent wetlands was a reasonable
interpretation in part because of what SWANCC described as "the sig-
nificant nexus between the wetlands and `navigable waters.'"
SWANCC, 531 U.S. at 167. There is also a nexus between a navigable
waterway and its nonnavigable tributaries. The Corps argues, with
supporting evidence, that discharges into nonnavigable tributaries and
adjacent wetlands have a substantial effect on water quality in naviga-
ble waters. The Deatons do not suggest that this effect is overstated.
This nexus, in light of the "breadth of congressional concern for pro-
tection of water quality and aquatic ecosystems," Riverside Bayview,
474 U.S. at 133, is sufficient to allow the Corps to determine reason-
ably that its jurisdiction over the whole tributary system of any navi-
gable waterway is warranted. The regulation, as the Corps reads it,
reflects a reasonable interpretation of the Clean Water Act. The Act
thus reaches to the roadside ditch and its adjacent wetlands.
III.
The Deatons next argue that the district court erred when it held
that the Corps used a correct indicator for wetland hydrology (taken
from its Wetlands Delineation Manual) in designating parts of their
property as wetlands. The Corps's underlying wetlands regulation,
which the Deatons do not challenge, defines wetlands as "areas that
are inundated or saturated by surface or ground water" and are home
to "vegetation typically adapted for life in saturated soil conditions."
33 C.F.R. § 328.3(b). To assist in applying this regulation, the Corps
uses its Wetlands Delineation Manual, known as the 1987 Manual.
See Waterways Experiment Station, Dep't of the Army, Corps of
Engineers Wetlands Delineation Manual (1987). According to the
manual, wetlands have "general diagnostic environmental characteris-
tics" in the following three categories: vegetation, soil classification
(hydric), and hydrology. 1987 Manual at 13-14. The Deatons do not
dispute that their property meets the vegetation and soil criteria. How-
ever, they claim that their property lacks the required hydrology.
The 1987 Manual lists several methods for determining an area's
hydrology, ranking them by reliability. Id. at 37-41. Using recorded
data on water levels, flooding, and soil saturation is the most reliable
17
method. Using field data is next. Id. Among the acceptable ways of
gathering field data, the second most reliable is"[v]isual observation
of soil saturation," which involves digging a hole in the soil and
observing water levels. In order to influence the characteristics of
vegetation (and meet the wetlands hydrology criterion), water must
saturate the soil "within a major portion of the root zone (usually
within 12 inches of the surface)." Id. The Corps determined that the
Deatons' property met the hydrology requirement by using the manu-
al's visual observation method and finding that the soil was saturated
to within twelve inches of the surface. The Deatons conducted their
own observations, using twenty-two wells to monitor and record
groundwater levels for several months. According to the Deatons,
their study confirms that the areas in question were not saturated to
the surface for a sufficient time to be considered wetlands. The Dea-
tons rely on certain language in the manual describing wetlands
hydrology as soil "saturation to the surface at some time during the
growing season." 1987 Manual at 34. They therefore argue that the
observation-based data showing soil saturation within twelve inches
of the surface does not permit a wetlands classification and that the
Corps misinterpreted the manual in making the classification. The
Corps's wetlands classification, however, did not involve an interpre-
tation (or misinterpretation) of the manual. The "within twelve
inches" indicator is spelled out in the manual, and the Corps simply
found this indicator to be present.
The analysis of the Deatons' attack on the Corps's reliance on the
"saturation within twelve inches of the surface" indicator must begin
with the Corps's wetlands regulation. Again, the regulation, 33 C.F.R.
§ 328.3(b), defines wetlands to include areas that are "saturated by
surface or ground water." The 1987 Manual interprets the regulation.
The manual states that areas with wetland hydrology include those
where "soils [are] saturated to the surface at some time during the
growing season." 1987 Manual at 34. The manual also states that wet-
land hydrology is present where the saturation has "an overriding
influence on characteristics of vegetation." Id. Saturation to within
twelve inches of the surface is usually sufficient to have an overriding
impact on vegetation, according to the manual. Id. at 38. Finally, the
presence or absence of the "within twelve inches" indicator may be
determined by visual observation. Id. Here, the Corps simply used the
manual's prescribed criterion (the "within twelve inches" indicator)
18
and methodology (visual observation) in determining that the Dea-
tons' property had the required hydrology for wetlands designation.
If the Deatons want to argue that the "within twelve inches" criterion
is inappropriate, they must argue that the manual is a flawed interpre-
tation of the regulation defining wetlands. The Deatons, however, do
not argue that the manual "is plainly erroneous or inconsistent with"
the regulatory definition of wetlands. See Seminole Rock, 325 U.S. at
413-14. We are therefore bound to defer to the manual's interpreta-
tion of the regulation, id., especially since the interpretation deals in
a complex scientific field, wetlands ecology and hydrology. Cf. Pau-
ley v. BethEnergy Mines, Inc., 501 U.S. 680, 697 (1991) (finding par-
ticular reason to extend Chevron deference when an agency
administers a "complex and highly technical regulatory program").
IV.
Finally, the Deatons challenge the District Court's remedial order
requiring them to fill in the ditch they dug across their property. The
Clean Water Act only regulates the deposit of the material dug out of
the ditch, not the digging itself. Therefore, the Deatons argue, requir-
ing them to haul the deposited dirt to a non-wetland part of the prop-
erty is the proper remedy. According to the Deatons, they would not
have needed a permit if they had hauled the dirt away when they dug
the ditch, so the remedy for their failure to get a permit should go no
further than requiring them to do what would have been lawful in the
first place.
We review the scope of a remediation order for abuse of discretion.
See Dixon v. Edwards, 290 F.3d 699, 718 (4th Cir. 2002); see also
Sasser v. Adm'r, United States EPA, 990 F.2d 127, 130 (4th Cir.
1993). In evaluating remediation or restoration proposals, courts have
considered three factors: (1) whether the proposal "would confer max-
imum environmental benefits," (2) whether it is "achievable as a prac-
tical matter," and (3) whether it bears "an equitable relationship to the
degree and kind of wrong it is intended to remedy." United States v.
Cumberland Farms of Conn., Inc., 826 F.2d 1151, 1164 (1st Cir.
1987). See also United States v. Sexton Cove Estates, Inc., 526 F.2d
1293, 1301 (5th Cir. 1976) (Rivers and Harbors Act case); United
States v. Bradshaw, 541 F. Supp. 884, 885 (D. Md. 1982). Although
the district court did not consider each of these factors explicitly, it
19
generally covered them. The court found that allowing the Deatons to
haul the dirt away instead of filling the ditch would let them benefit
from their violation of the Clean Water Act. Moreover, the court
found it "doubtful that [removing the sidecast dirt] could be done in
an ecologically harmless manner." In other words, the district court
found that the Deatons' remediation proposal would likely compound
the environmental damage they had already done. In light of these
findings and the Clean Water Act's goal of "restor[ing] and main-
tain[ing] the chemical, physical, and biological integrity of the
Nation's waters," 33 U.S.C. § 1251(a), we conclude that the district
court did not abuse its discretion in entering the remediation order.
V.
We affirm the district court's order of January 29, 2002, denying
the Deatons' motion to reconsider the issue of Clean Water Act juris-
diction and that court's order of February 4, 2002, requiring remedia-
tion.
AFFIRMED
20