Water Act reveals that Congress intended to protect wildlife, the migratory bird rule would appear to be a permissible construction of that statute.
The legislative history of the Clean Water Act leads to the same conclusion. That history reveals that Congress intended "to extend Clean Water Act jurisdiction over waters of the United States to the maximum extent possible under the Commerce Clause." S.Rep. No. 1236, 92nd Cong., 2d Sess. 144 (1972), U.S.C.C.A.N. 1972, at pp. 3668, 3776. The Seventh Circuit has long recognized that Congress intended to make the Clean Water Act as far-reaching as the commerce clause permits. See Rueth v. EPA, 13 F.3d 227, 231 (7th Cir. 1993); United States v. Huebner, 752 F.2d 1235, 1239 (7th Cir. 1985); United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir. 1979). To the extent that the commerce clause authorizes the federal government to regulate intrastate migratory bird habitats, then, the Clean Water Act must as well. For these reasons, the court finds that 33 C.F.R. § 328.3(a)(3), as applied to intrastate migratory bird habitats, is a reasonable construction of the Clean Water Act.
Notably, the Fourth Circuit reached the opposite conclusion in United States v. Wilson, 133 F.3d 251 (4th Cir. 1997). In that case, the court explained that 33 C.F.R. § 328.3(a)(3) went beyond its statutory mandate because the term "waters of the United States" cannot include intrastate or nonnavigable waters whose degradation or destruction could affect interstate commerce. Id. at 256-257. Relying generally on the Supreme Court's decision in Lopez, 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624, the majority explained that the phrase "waters of the United States" must refer "to waters which, if not navigable in fact, are at least interstate or closely related to navigable or interstate waters." 133 F.3d at 257. In a separate opinion, Judge Luttig declined to adopt this portion of the majority opinion on the grounds that it was based on an overly expansive reading of Lopez. Id. at 266.
This court respectfully declines to follow the majority in Wilson. Because the scope of federal regulatory jurisdiction under the Clean Water Act is coextensive with that of the commerce clause, and because the commerce clause authorizes the federal regulation of intrastate migratory bird habitats, the migratory bird rule must be a valid application of the Clean Water Act. For the reasons discussed in Part II.A. of this opinion, the court does not believe that Lopez requires a contrary result. On this point, then, the court agrees with the Ninth Circuit 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." Leslie Salt II, 896 F.2d at 360.
D. Administrative Procedure Act
Plaintiff argues that the migratory bird rule was promulgated without public notice and comment in violation of the APA. That statute requires federal agencies to provide notice and an opportunity for public comment before they promulgate or amend administrative regulations, but it creates an exception for interpretive rules and general statements of policy. 5 U.S.C. § 553. An interpretive rule is one in which an agency explains what a statute means or reminds parties of existing duties, while a substantive rule creates altogether new rights or duties. Metropolitan School Dist. of Wayne Township v. Davila, 969 F.2d 485, 489-90 (7th Cir. 1992); see also American Hospital Ass'n v. Bowen, 266 U.S. App. D.C. 190, 834 F.2d 1037, 1045 (D.C. Cir. 1987). Because the parties agree that the migratory bird rule was adopted without notice and comment, the court need only decide whether the rule is substantive or interpretive.
This issue was addressed in Tabb Lakes, Ltd. v. United States, 715 F. Supp. 726, 728-729 (E.D. Va. 1988). In that case, a landowner sought a declaratory judgment that his property was not subject to federal jurisdiction because it did not contain "other waters" as defined by 33 C.F.R. § 328.3(a)(3). Id. at 727. The Army Corps of Engineers argued that it had jurisdiction over the site pursuant to an internal memorandum which explained that the term "other waters" included those which "are used or could be used as habitat by other migratory birds which cross state lines." Id. at 728. The district court held that the memorandum was a substantive rule-making because it had a "significant effect on public interests" and was "intended to have the full force and effect of a substantive rule." Id. at 728-729. Accordingly, the court held that the memorandum was adopted in violation of the notice and comment requirements of the APA and did not confer federal jurisdiction over the property in question. Id. at 729.
In an unpublished opinion, a divided panel of the Fourth Circuit affirmed this holding without explanation. See Tabb Lakes, Ltd. v. United States, 885 F.2d 866 (4th Cir. 1989) (per curiam) (text at 1989 WL 106990). In dissent, Judge Hall suggested that the district court had erred by considering the impact of the rule instead of limiting its analysis to the question of whether the memorandum created new rights or duties. Id. at **2 (Hall, J., dis.). He reasoned that the memorandum did not give rise to new law because the statutory term "waters of the United States" was intended to have "the broadest possible constitutional interpretation" under the commerce clause, and the memorandum simply identified "what contacts with interstate commerce are sufficient to bring a given wetland within the jurisdictional reach" of that statute. Id. at **3.
More recently, the Ninth Circuit discussed this question in Leslie Salt IV, 55 F.3d 1388. When the plaintiff first raised this issue on appeal in Leslie Salt II, 896 F.2d 354, the court declined to address it and thus held by implication that the rule was procedurally sound. 55 F.3d at 1393. When the court revisited the issue in Leslie Salt IV, its review was limited to the question of whether its prior holding was clearly erroneous. Id. at 1394. Relying on Hoffman Homes II, 999 F.2d at 261, where the Seventh Circuit held that the term "other waters" in both 40 C.F.R. § 230.3(s)(3) and 33 C.F.R. § 328.3(a)(3) could be read to include waters used by migratory birds, the Ninth Circuit reasoned by analogy that the migratory bird rule could be viewed as an interpretation of the Clean Water Act rather than a substantive rule-making. Leslie Salt IV, 55 F.3d at 1394. In a somewhat narrow holding, then, the court concluded that it was "plausible" to construe the migratory bird rule as an interpretation of the Clean Water Act. Id.
It is the opinion of this court that the migratory bird rule is interpretive rather than substantive.
The Clean Water Act authorizes the EPA and the Army Corps of Engineers to exercise regulatory jurisdiction over the "waters of United States." 33 U.S.C. § 1362(7). Pursuant to this authority, the Army Corps of Engineers adopted a regulation in 1977 which defined the term "navigable waters" to include isolated intrastate waters whose "degradation or destruction could affect interstate commerce." 33 C.F.R. § 323.2(a)(5) (1977), 42 Fed.Reg. 37,144 (July 19, 1977). In 1986, the Corps renumbered this provision as 33 C.F.R. § 328.3(a)(3) but left the substance of the regulation largely unchanged. The "migratory bird rule" appears in the preamble to the 1986 version of the regulations. 51 Fed.Reg. 41,216 (November 13, 1986).
In the preamble, the Corps explained that the purpose of the reorganization was "to clarify the scope of the Section 404 permit program." 51 Fed.Reg. 41,216. Rather than change the existing definitions, it sought to clarify them by putting them in a separate and distinct part of the regulation. 51 Fed.Reg. 41,216-41,217. The agency then explained that the term "waters of the United States" includes those:
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