# Petition — Hart & Miller Islands Area Environmental Group, Inc. v. United States Army Corps of Engineers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0294%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 1003 ## Text FILED AUG2 2 1980 ses 8 (0. - 2 'C3 — Lmicuact rovak, sr. cusp IN THE Supreme Cowt of the United States Octoser Term, 1980 Hart anp Miter Istanps AREA ENVIRONMENTAL Group, INC., ET AL., Petitioners, V. Unitep States Army Corps or ENGINEERS, ET AL., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Of Counsel: Leonard B. Simon : (Counsel of Record) prot Aol Eli Whitney Debevoise, II : ARNOLD & PORTER 1200 New Hampshire Avenue, 1200 New Hampshire Avenue, N.W. N.W Washington, D.C. 20036 Washington, D.C, 20036 Edward B. Rybezynski (202) 872-6700 Ralph K. Rothwell, Jr. ‘i 890 Fidelity Building Counsel for Petitioners Baltimore, Maryland 21201 Press oF Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C. i QUESTIONS PRESENTED 1. Whether Section 9 of the Rivers and Harbors Act of 1899, which requires specific congressional consent for the construction of “any ... dike ... over or in any... navi- gable water of the United States,” applies to the construc- tion of a dike for the disposal of dredgings in the waters of Chesapeake Bay? 2. Whether speculation concerning legislative intent and evidence of sporadic administrative actions can expand the jurisdiction of the Corps of Engineers to authorize obstruc- tions to navigation beyond the clear limitations of Section 9 of the Rivers and Harbors Act of 1899? PARTIES TO THE PROCEEDING BELOW The plaintiffs below were Hart and Miller Islands Area Environmental Group, Inc., a Maryland corporation; The Honorable Clarence Long, M.C.; The Honorable Norman R. Stone, a member of the Senate of Maryland; Maryland Wildlife Federation, Inc., a Maryland corporation; John Henderson; Howard Sappington (now deceased); George Wohlleben; Robert Scott; Margaret Caldwell; and Charles Justice. The defendants were the United States Army Corps of Engineers; The Honorable Clifford L. Alexander, Secre- tary of the Army; Lt. Gen. John W. Morris, Chief of Engi- neers of the United States Army; and Col. G. K. Withers, District Engineer, Baltimore District, United States Army Corps of Engineers. Intervening defendants were the State of Maryland, ex rel., Stephen H. Sachs, Attorney General; and the Steam- ship Trade Association of Baltimore, Inc., a Maryland corporation. ili TABLE OF CONTENTS Page i Ty Sn Ciebacd cvs secnoeuseseeenee i Parties TO THE ProcEEDING BELOW ..............065 i Oe ne ee eee ere err oe 1 a esa Wade het nee peo anes kK a eae oes 1 ig cane se pe 6 6b 0.0004 ow oe oe 'bale ae 2 DTATEMENT OF THE Case 2.2... cc ccccsvccccccevessce 2 B. Emtredeetory Btntemiemst ... 2. cs cccccccccsses 2 rr rE cs cose pads sseveeecse ves 4 BD. Ree DOMCMOOEY TOONS 6 ooo c ccc cccsesccces 5 4. The District Court Proceedings ............. 7 5. The Court of Appeals Proceedings .......... 9 REASONS FOR GRANTING THE WRIT ............-008-- 11 I. The Decision Below Conflicts With A Decision Of The Second Circuit, And This Court Should Resolve This Conflict On An Important Ques- ee sn ew nnedeveiee xe ewe ee 11 If. This Case Presents An Important Question Of Federal Law Which Has Not Been, But Should Be, Resolved By This Court. ................ 14 A. There Are And Will Continue To Be Numerous Projects Raising This Issue. ... 14 B. The Erroneous Decision Below May Cause The Waste Of Millions Of Dollars ........ 16 a lL decom es eweadedeeeeia’ 21 PREVIOUS PAGE WAS BLANK iv APPENDIX Page Opinion of the Fourth Circuit .................008- la Memorandum and Order of the District Court, filed rr rec re Ty Pere 23a Memorandum and Order of the District Court, filed po ER OS errr rrr re re 47a Judgment of the Fourth Circuit, No. 78-1911 ........ 53a Judgment of the Fourth Cireuit, No. 78-1912 ........ 55a Judgment of the Fourth Circuit, No. 79-1037 ........ 57a District Court Order Entering Judgment, filed October | Pr Fey Perro rT ree er rare 59a SN ope a eabekc kes Rech cleanses ansKae tna eeeek 6la TABLE OF AUTHORITIES CasEs: Adamo Wrecking Co. v. United States, 434 U.S. 275 Lo ae rr rer err ye ye rr Err Terre Te 20 Cardwell v. American Bridge Co., 113 U.S. 205 (1885) 5 Citizens Committee for Environmental Protection v. United States Coast Guard, 456 F. Supp. 101 SS SE Cah wae bene se ean eaeeeebeaeune 13, 16 Citizens Committee for the Hudson Valley v. Volpe, 302 F. Supp. 1083 (S.D.N.Y. 1969), aff’d, 425 F.2d 97 (2d Cir.), cert. denied, sub nomime Parker v. Citizens Committee for the Hudson Valley, 400 Te: ee ED Sicdaveenncscas 2, 3, 8, 11-14, 16-17, 21 Federal Maritime Commission v. Seatrain Lines, Inc., OE Ai Se COE is valteaicnsbohe edeaHesae déake Gibson v. United States, 166 U.S. 269 (1897) ......... 19 Maine v. Thiboutot, —— U.S. —— (No. 79-838), 48 “oe, U.S.L.W. 4859 (Jume 25, 1980) .........cceeee 12, 19 Petterson v. Resor, 331 F. Supp. 1302 (D. Ore. 1971), vacated as moot, 494 F.2d 124 (9th Cir. 1974) ... 13, 14, 16 Vv Table of Authorities Continued Page Pound v. Turck, 95 U.S. 459 (1877) .......cccccccees 5 S.E.C. v. Sloan, 436 U.S. 103 (1978) .............. 12, 20 Sierra Club v. Morton, 400 F. Supp. 610 (N.D. Cal. 1975), aff'd in part, rev’d in part, 610 F.2d 581 (9th Cir. 1979), cert. pending sub nomine, State of California v. Sierra Club (No. 79-1252, filed Feb. 13, 1980), Kern County Water Agency v. Sierra Club (No. 79-1502, filed Mar. 17, i980), Sierra Club v. Andrus (No. 79-1625, filed Apr. 16, 1980) ...... 13 fe Ae a gis Se Bs. ae re 17 United States v. City of Moline, 82 F. 592 (N.D. Il. 2 ere Soa aOR Me haw hee Male cass 18 United States v. Keokuk & H. Bridge Co., 45 F. 178 hs a Vo waa 6s oak ahold Ob ae 10, 18 United States v. Rider, 50 F. 406 (S.D. Ohio 1891), certificate of division dismissed, 163 U.S. 132 (1896) ; aff'd, 178 U.S. 251 (1900) ............. 10, 18 United States v. South-Eastern Underwriters Ass’n, od haba da ckuwe kas was eae 19 Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1 (1887) 5 Wisconsin v. Illinois, 287 U.S. 367 (1929) ...... 6,7, 10, 18 CoNSTITUTION : Commerce Clause of the Constitution, Art. I, See. 8, Siac ce Sees sop Seba a dwh eb ud gonlede sae enuan 5 STATUTES: Section 2 of the Rivers and Harbors Act of 1884, 23 i ieee es ag punesiesederebabcadabeds 5 Section 8 of the Rivers and Harbors Act of 1884, 23 I oa ed ie OL eee hoe wut ees bg 5 Section 9 of the Rivers and Harbors Act of 1888, 25 SE ME brea Whee at sn dheek ds vidas daw tas 5 vi Table of Authorities Continued Page Section 7 of the Rivers and Harbors Act of 1890, 26 Se GE nc cc vecncesceenes ce vlewe uous seen IEEE dD, 6 Section 9 of the Rivers and Harbors Act of 1890, 26 BE, AUER. sts cvcsccewebuwaeccsabsegenan nae 19 Section 6 of the Rivers and Harbors Act of 1894, 27 NS. SD cdo wor Wasnnns ¢abheneeye due enn 19 WEA PME 65.685 vn ds dnccnésaeeensss eee passim a SUED o0kskcnccedccceturvesebensseennne passim Section 101 of the Rivers and Harbors Act of 1970, Pub. L. No. 91-611, 84 Stat. 1818 .............. 4, 20 Section 123 of the Rivers and Harbors Act of 1970, Pub. L. No. 91-611, 84 Stat. 1823 ..........006. 9, 20 Clean Water Act Amendments of 1977, Pub. L. No. a ee ey rere 15 Section 404 of the Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Bs: WP 65446 k's osiconnn0shee eae 11, 15, 20 Marine Protection, Research, and Sanctuaries Act of 1972, Pub. L. No. 92-532, 86 Stat. 1052 ......... 15 Be WA STOIC OED once cc wcenscescccscensteu en 7 eS a rr rrr a 7 WP A 6 BRBAE) | won cece cccccconcgscceesaennne 1 Be WA SEE occ cccccccccsccccndedeasthodu nee 9 BP WA 4 RIBAGE) nn cccccccccccncsccucueuseeeenn 7 Oe Wee BOE noc cc wcccncnssccccccecennneee 7 Oe CAD GOED nn cc cccccccvccensstecdunp eee 7 vii Table of Authorities Continued REGULATIONS: Page SB C.F. SBBGB CIOTT) 2. ccc ccccccccccccvecccees 6 33 C.PR. $322, App. B (1977) ....cccccccccccsccces 6 Strate STATUTES: Fla. Stat. Ann. § 403.813(2)(f) (West 1980) ........ 15 Md. Ann. Code, § 8-1602 (1979 Supp.) ...........65. 15 N.C. Gen. Stat. § 113-229(1) (1978) ......ccecccceees 15 MISCELLANEOUS: ED avn vcac se vavedsccvceieececns 18 eck ks iene bs espe scence sesane 6 ME I a ve crn ccpstecscoceasecees 6 BE RO, BUR. OND CAPES) occcctncccvensscccccces 15 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, consent of Senate, 119 Cong. Rec. 28012 (1973) ........ 15-16 No. IN THE Supreme Court of the United States Octoser TreRM, 1980 Hart anp Mituer Istanps AREA ENVIRONMEN‘YAL Group, INc., ET AL, Petitioners, Vv. Unirep States Army Corps or ENGINEERS, ET AL., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT OPINIONS BELOW The opinion of the United States Court of Appeals for the Fourth Cireuit (App. 1) is not yet reported The opinion of the District Court (App. 23) is reported at 459 F. Supp. 279. The supplementary opinion of the District Court denying reconsideration (App. 47) is unreported. JURISDICTION The United States Court of Appeals for the Fourth Circuit entered its judgment on May 28, 1980. No petition for rehearing was filed. Petitioners invoke the jurisdiction of this Court pursuant to 28 U.S.C. § 1254(1). 2 STATUTES INVOLVED Section 9 of the Rivers and Harbors Act of 1899, 30 Stat. 1151, 33 U.S.C. § 401 (hereinafter the “Act”), pro- vides in pertinent part: “Tt shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any .. . navigable water of the United States until the consent of Congress to the buildin of such structure shall have been obtained and unti the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of the Army... .’’ Section 10 of the Act, 33 U.S.C. § 403, provides in per- tinent 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 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 estab- lished harbor lines, . . . except on plans recommended by the Chief of Engineers and authorized by the Sec- retary of the Army; and it shall not be lawful to ex- cavate or fill [in a navigable waterway of the United States] ... unless the work has been recommended by the Chief of Engineers and authorized by the Secre- tary of the Army prior to beginning the same.’’ The full text of these sections, together with the text of certain relevant predecessor statutes, appears in the Ap- pendix. STATEMENT OF THE CASE 1. Introductory Statement This case presents a question which this Court chose not to resolve in Citizens Committee for the Hudson Valley 3 v. Volpe, 425 F.2d 97 (2d Cir.), cert. denied sub nomine Parker v. Citizens Committee for the Hudson Valley, 400 U.S. 949 (1970) (Harlan, White and Blackmun, JJ., dissent- ing from denial of certiorari) (hereinafter referred to as Hudson Valley). The question concerns the respective cov- erage of Sections 9 and 10 of the Rivers and Harbors Act of 1899. Section 9 of that Act requires the consent of Con- gress and the Army Corps of Engineers (“Corps’’) for con- struction of certain types of structures in or over navigable waters of the United States which touch more than one state, including “any bridge, dam, dike or causeway over or in any” such waters. Section 10 requires only Corps of Engineers approval (delegated from the Secretary) for other, generally smaller structures in such navigable waters —wharves, piers, ete. In Hudson Valley the District Court and the Court of Appeals for the Second Circuit held that the term “any ... dike... over or in” navigable waters applies to all structures which meet the commonly accepted definition of “dike,” rejecting arguments by the Corps for a narrower interpretation of Section 9 which would have included some but not all dikes. 302 F. Supp. 1083, 1088-89; 425 F.2d at 106. The Solicitor General of the United States and the Attorney General of the State of New York sought certiorari on the ground that the proper interpretation of Section 9 presented an important question worthy of this Court’s consideration.t However, only three Justices agreed, and the Second Circuit’s decision was allowed to stand. Since that time, the District Courts have reached varying conclusions upon this issue (see Section I, infra). The instant case presents the same issue. The District Court below followed Hvdson Valley and the plain mean- ing of the statute, but the Court of Appeals reversed, re- jecting the Hudson Valley holding on the basis of novel *The State of New York also sought certiorari on the question of plaintiffs’ standing, but the Sulicitor Genera) did not. 4 (and we submit erroneous) readings of the legislative history and the Corps’ prior administrative practices. Thus, the instant petition presents this Court with an op- portunity to resolve this important federal question which has now engendered a divergence of opinion among the Circuits. 2. Factual Background In 1970 Congress authorized dredging to deepen the Baltimore Harbor Channel to a depth of 50 feet.’ As a con- dition to commencement of the dredging, the State of Maryland agreed to provide a site for disposal of the dredgings, much of which would be highly toxic. To meet this condition, the State of Maryland applied to the Army Corps of Engineers on February 23, 1972, for a permit to construct a two-square-mile diked containment area adja- cent to Hart and Miller Islands in the Chesapeake Bay.’ This structure is intended to be used for the disposal of ap- proximately 52,000,000 cubic yards of dredged spoil. After public hearings and consideration of an environmental im- pact statement, the Corps issued the permit on November 22, 1976. The Corps did not seek the consent of Congress for construction of the containment area, in part because of the Corps’ perception of the “political realities of the situa- tion,’’ which included the opposition of the local Congress- man. (Court of Appeals App. 421.) The permit, as authorized by the Secretary of the Army and issued by the Corps of Engineers, allowed the State “to construct a Diked Disposal Area to Contain Dredged Materials .. . on approximately one thousand one hundred (1,100) acres adjacent to Hart and Miller Islands.’’ In fact, the diked disposal area would obliterate fifty percent of Miller Island and ten percent of Hart Island. * Rivers and Harbors Act of 1970, Pub. L. No. 91-611, § 101, 84 Stat. 1818 (1970). * Hart and Miller Islands contain beaches and wetlands, and are used primarily for recreational purposes (App. 5). 5 3. The Statutory Scheme This action arises under a statutory scheme established by Congress eighty-one years ago to oversee the reason- ableness of obstructions to navigation in the waters of the United States. Under the Commerce Clause of the Consti- tution, Art. I, See. 8, C!. 3, Congress has power to regulate all obstructions to navigation,‘ but Congress did not begin to exercise its authority until the 1880s.° In the absence of such regulation the states asserted their residual powers over commerce.® In 1890 Congress enacted the first general legislation subjecting obstructions in navigable waters to federal scrutiny. Section 7 of the Rivers and Harbors Act of 1890, 26 Stat. 454, prohibited the construction of wharves, piers, dolphins, booms, dams, weirs, breakwaters, bulkheads, jet- ties, and “structures of any kind” outside established har- bor lines without permission from the Secretary of War.’ Section 7 also permitted construction, pursuant to state legislative authority, of bridges, bridge draws, bridge piers and abutments, causeways, and “other works” over or in navigable waters of the United States, provided the plans were later approved by the Secretary of War.’ In other words, the apprvuval of the Secretary of War was a necessary but not sufficient requirement for construction of structures falling into this second grouping (bridges, causeways, etc.), since state approval was also required. * See, e.g., Pound v. Turck, 95 U.S, 459 (1877); Cardwell v. American Bridge Co., 113 U.S. 205 (1885). ®° See, e.g., Rivers and Harbors Act of 1888, § 9, 25 Stat. 424-25; Rivers and Harbors Act of 1884, §§ 2, 8, 23 Stat. 133, 147, 148-49. * See, e.g., Willamette Iron Bridge Co. v. Hatch, 125 U.S, 1 (1887). ' This language is the predecessor of § 10, el. 2 of the 1899 Act. See infra, p .6. * This language is the predecessor of §9 of the 1899 Act. See infra, p. 6. a? 6 State authorization powers were further curtailed by a proviso to Section 7 which expressly limited them to struc- tures over or in navigable waters wholly within the limits of a state. This proviso effectively required Congressional authorization for all bridges over or in navigable waters touching more than one state. 20 Op. A.G. 488, 491-92 (1892); see 21 Op. A.G. 41, 43-44 (1894). Congress modified the 1890 legislation nine years later when it passed the Act under which this litigation arises, the Rivers and Harbors Act of 1899, 30 Stat. 1121, 33 U.S.C. § 401 et seq. One change made by the 1899 Act directly affects proper resolution of this action. Section 7 of the 1890 Act had distinguished between one category of struc- tures—wharves, piers, dolphins, booms, dams, and jetties —and another that included bridges, bridge draws, bridge piers and abutments, and causeways. Authority to permit construction of the former lay with the Secretary of War, whereas authority to permit construction of the latter re- quired the concurrence of either a state legislature or Congress. The successor provisions of the 1899 Act excluded dams from the first category of structures, see § 10, el. 2, and added dams and dikes to the second, see § 9. In addi- tion, the 1899 Act also clarified the requirement of express congressional consent for construction of certain structures falling within the second category. Thus, “any dike” con- structed outside a harbor and over or in a navigable water- way touching more than one state had to be authorized by Congress, rather than merely by one or more states. Having asserted the power of federal review over all structures affecting navigation, Congress delegated away much of that authority in order to avoid overburdening itself. The Secretary of War (now the Secretary of the Army) rules on the proposed obstructions to navigation enumerated in Section 10—wharves, piers, etc.’ See Wis- ® This authority has been redelegated to the Corps of Engineers. 33 C.F.R. § 325.8 (1977) ; 33 C.F.R. § 322, App. B (1977). 7 consin v. Illinois, 287 U.S. 367, 413 (1929). In addition, the states, subject to further approval by the Corps, au- thorize construction of bridges, dams, dikes and causeways in or over navigable waterways wholly within a state, But Congress carefully reserved to itself the authority to ap- prove or disapprove bridges, dams, dikes, or causeways situated in or over navigable waterways touching more than one state. This statutory reservation of authority stands unmodified in any pertinent way today.’ 4. The District Court Proceedings On June 30, 1977, this suit was brought in the United States District Court for the District of Maryland, chal- lenging various actions of the Corps of Engineers in con- nection with the Hart and Miller Islands diked disposal project." The plaintiffs included, among others, a local citizens’ group, U.S. Congressman Clarence Long, and Siate Senator Norman Stone. Both legislators represent districts which include Hart and Miller Islands. Plaintiffs opposed construction of the disposal facility in question ou environmental, safety, and aesthetic grounds. They sought, inter alia, a declaration that the action of the Corps in issuing the permit was unlawful and void for lack of consent of Congress, as required by Section 9 of the Act.’ *° Apart from the delegations within the 1899 Act, Congress has also empowered the Coast Guard (successor to the Secretary of the Army) and the Federal Energy Regulatory Commission (suc- cessor to the Federal Power Commission) to authorize bridge and dam construction across or in navigable waterways in certain circumstances. See 33 1'S.C. §§ 525, 530 (General Bridge Act) and 16 U.S.C, §§ 797(e), 817 (Federal Power Act). “The District Court had jurisdiction over the matter pursuant to 28 U.S.C. § 1331(a). ** It is undisputed that the Chesapeake Bay is a navigable body of water and that the navigable portions of the Bay do not lie wholly within one state (App. 29). 8 Cross-motions for summary judgment were filed, and the District Court (Murray, J.) granted summary judg- ment to the plaintiffs, declaring that the Corps of Engi- neers had exceeded its authority by issuing the permit without having obtained the consent of Congress. 459 F. Supp. 279 (D. Md. 1978) (App. 59-60). In resolving the question of the scope of Section 9, the District Court ana- lyzed the reported case law, the history of Sections 9 and 10, and the Corps’ past administrative practice with respect to the application of those provisions. It concluded that it must decide whether the proposed structure is a dike by applying the ordinary meaning of that term, thus follow- ing the Second Circuit’s decision in Hudson Valley. The Corps had argued that “dike” in Section 9 re- ferred only to structures which completely span a navi- gable waterway, but the District Court disagreed. Aside from the fact that the commonly accepted definition of “dike” did not include such a limitation, the Court noted that Section 9 explicitly covered “any dike ... over or in any... navigable water’’ (App. 44), and that the language “over or in” was precisely contrary to the Corps’ interpretation. The Court also relied upon the fact that the Corps’ own materials concerning this Chesapeake Bay project repeatedly referred to it as a dike (App. 39-40). The District Court refused to defer to the Corps’ alleged longstanding administrative interpretation of “dikes” as structures which span waterways. It pointed out that such a definition was at odds with the statutory language and noted that such self-serving statements could not extend, in “bootstrap”? fashion, the Corps’ statutorily confined jurisdiction. (App. 43; see also App. 48-49 (on rehearing) ). Finally, the Court rejected the Corps’ contention that Con- gress had tacitly ratified the agency’s interpretation by various pieces of recent legislation, finding no basis for such a claim. In fact, the Court pointed out that Congress had recently specifically exempted certain proposed diked 9 disposal areas in the Great Lakes from the application of Section 9 by the very legislation which authorized the Ba)- timore harbor dredging. See Rivers and Harbors Act of 1970, Pub. L. No. 91-611, § 123, 84 Stat. 1818, 1823 (1970). The District Court concluded from that evidence that Con- gress understood Section 9 to apply to dikes which do not completely span a waterway and that Congressional con- sent is required for their construction unless they are explicitly ~xempted by statute, as were the Great Lakes facilities. Having so interpreted Section 9, the District Court ruled that the structure was a dike, concluded that the Corps had exceeded its jurisdiction, and held that the permit was of no force without the approval of Congress. Judgment was entered for plaintiffs. Deiendants and intervenors moved for rehearing by the District Court, relying principally, upon the Corps’ admin- istrative interpretation of Section \9; After careful con- sideration, the District Court denied the motion by writ- ten opinion of November 22, 1978 (App. 47). The Court noted again that the Corps’ interpretation was inconsistent with the plain language of the statute, and that deference to that interpretation would permit the Corps to obtain for itself authority which Congress had chosen not to give it (App. 52). 5. The Court of Appeals Proceedings All defendants and intervenors timely appealed to the United States Court of Appeals for the Fourth Circuit.” While the matter was pending on appeal, congressional approval for the project was sought, but could not be ob- tained. The Court of Appeals had jurisdiction pursuant to 28 U.S.C. § 1291. 10 On May 28, 1980, the Court of Appeals (Widener and Hall, JJ., and Warriner, D.J.) reversed, finding that Sec- tion 9 of the Act did not apply to the project in question. The Court adopted the Corps’ contention that Section 9 applied only to dikes which entirely traverse a navigable body of water. Unlike the District Court, the Court of Appeals did not apply the plain meaning of the term “dike,” because it found that Section 9 of the Act was ambiguous (App. 7, 11). It drew that conclusion from this Court’s statement in Wisconsin v. Illinois, supra, 287 U.S. at 413, that the inter- relationship of various segments of Section 10 of the Act was somewhat ambiguous. The Court of Appeals suggested that such ambiguity “probably” applied to Section 9 as well. Given this supposed ambiguity in statutory language, the Court of Appeals then focused upon a variety of ma- terials which the Corps tendered and characterized as legis- lative history and administrative practice. After demon- strating the derivation of the 1899 Act from the 1890 Act, the Court focused on the changes, noted above. It accepted without question and without documentation the Corps’ as- sertion that the congressional consent requirement of Sec- tion 9 “may well have been intended” to overcome broad dicta in United States v. Keokuk & H. Bridge Co., 45 F. 178 (S.D. Iowa 1890), and United States v. Rider, 50 F. 406 (S.D. Ohio 1891), to the effect that Congress could not con- stitutionally delegate its authority to determine when and where bridges should be built over the navigable waters of the country (App. 15). This undisclosed purpose was viewed by the Fourth Circuit as a better guide to the meaning of the statutory changes than the language employed by Con- gress. The Fourth Cireuit also examined miscellaneous evidence proffered by the Corps concerning its administrative prac- tice—a 1926 Corps lecture, the Secretary of War’s con- 11 gressional testimony in 1916, and two affidavits from Corps employees. However, apparently recognizing the sporadic and self-serving nature of the Corps’ declarations in favor of its own authority, the Court also suggested that Con- gress was aware of and had approved the Corps’ practices during hearings on the Federal Water Pollution Control Act Amendments of 1972." In sum, the Court accepted the Corps’ proposed inter- pretation of Section 9, finding it to be “perfectly reason- able” (App. 15), and “clear, convenient, and workable” (App. 20). REASONS FOR GRANTING THE WRIT I. The Decision Below Conflicts With A Decision Of The Second Circuit, And This Court Should Resolve This Conflict On An Important Question Of Federal Law In Citizens Committee for the Hudson Valley v. Volpe, supra, 425 F.2d 97, the Second Circuit held invalid a per- mit granted by the Secretary of the Army for the con- struction of a four-and-one-half-mile-long dike adjacent and parallel to the eastern shore of the Hudson River. The Court held that the structure in question was a “dike” within the meaning of Section 9 of the Rivers and Harbors Act of 1899, and therefore could not be built without con- gressional approval. In Hudson Valley, the District Court and the Court of Appeals, after “carefully review[ing] the pertinent evi- dence and consider[ing] the governing rules of statutory construction,” and after consulting technical dictionary definitions included in the record, rejected the Govern- In fact, as noted above and as found by the District Court, Congress’ actions in specifically exempting certain diked disposal projects in the Great Lakes from the scope of Section 9 suggest precisely the opposite—that Section 9 applies to such dike projects absent an express exemption. 12 ment’s position that not all dikes are governed by Section 9, 302 F. Supp. at 1088-89; 425 F.2d at 106. The District Court and the Second Circuit applied the basic principle of statutory interpretation that statutes should be inter- preted according to their plain meaning or common sig- nificance.’® In addition, the Court found no legislative or judicial authority to support the Corps’ contrary position. 302 F. Supp. at 1089. The United States and the State of New York petitioned for certiorari to review the Second Circuit’s decision, but review was denied, Justices Harlan, White and Blackmun dissenting. 400 U.S. 949 (1970). In this case, the Fourth Circuit adopted an entirely different approach and reached the opposite result. Un- like the Second Circuit, which relied on the plain meaning of “any dike,” the Fourth Cireuit found that term am- biguous. As noted above, the Fourth Cireuit then pro- ceeded to find meaning in various legislative and adminis- trative materials, and to conclude from them that “any dike” really means “some dikes,” precisely the conclusion rejected by the Second Circuit. The direct conflict between the Circuits is easily illus- trated by the fact that if the instant case were decided under the principles of Hudson Valley (as it was in the District Court), plaintiffs would prevail, since the struc- ture in question is concededly within the commonly ac- cepted meaning of a dike and is consistently described by the Corps as a dike in the materials underlying the permit. Conversely, the Hudson Valley case would undoubtedly have come to the opposite result if decided under the prin- ciples set out by the Fourth Circuit herein, since the dike at issue there did not span the Hudson River. ** This prineiple has recently been reaffirmed in Maine v. Thibou- tot, U.S. -—— (1980), No. 79-838, slip op. 3, 48 U.S.L.W, 4859 (June 25, 1980), and S.#.C. v. Sloan, 436 U.S. 103, 111-12 (1978). 13 In short, the conflict between the Circuits is extensive and fundamental, and if not resolved promptly by this Court, will engender conflicting decisions in the lower courts. In fact, this has already been occurring in the District Courts. For example, in Sierra Club v. Morton, 400 F. Supp. 610, 626-27 (N.D. Cal. 1975), aff'd in part, rev'd in part, 610 F.2d 581 (9th Cir. 1979), cert. pending sub nomine, State of California v. Sierra Club (No, 79- 1252, filed Feb. 13, 1980); Kern County Water Agency v. Sierra Club (No. 79-1502, filed Mar. 17, 1980); and Sierra Club v. Andrus (No. 79-1625, filed Apr. 16, 1980), the District Court adopted the reasoning of Hudson Valley and applied the ordinary meaning of the words “dike’’ and “dam’’ in finding certain structures to be subject to Sec- tion 9."° However, in Petterson v. Resor, 331 F. Supp. 1302 (D. Ore. 1971), the District Court declined to follow Hud- son Valley and held that the term “dike’’ in Section 9 was narrower than its commonly accepted meaning. An appeal to the Ninth Circuit ensued, but the project was cancelled during the pendency of the appeal, and the Ninth Circuit thereupon vacated the decision below as moot. 494 F.2d 124 (9th Cir. 1974). In Citizens Committee for Environ- mental Protection v. United States Coast Guard, 456 F. Supp. 101 (D.N.J. 1978), the Court accepted the reasoning of Petterson and rejected Hudson Valley in finding that only those dikes which constitute an “unreasonable ob- struction” to navigation are “dikes” for purposes of Sec- tion 9. Finally, of course, in the instant case, the District Court followed Hudson Valley, while the Court of Appeals ‘©The Section 9 issue has not survived to the Supreme Court level in these cases and will not be before this Court if it grants certiorari therein. Nevertheless, No, 79-1252 presents an important issue concerning the relationship between Section 10 of the Act and state law. The Court may wish to consider accepting both that case and this one to determine the precise relationship between the various requirements for congressional, executive, and state ap- proval of obstructions to navigation set out in Sections 9 and 10. 14 accepted the contrary interpretation of Section 9 presented in Petterson. Without the intercession of this Court, the federal courts will doubtless continue to disagree upon the meaning of Section 9. Furthermore, the issue is now, after ten years of percolation in the lower courts, clearly ripe for this Court’s review. Ten years ago when the Solicitor General petitioned for certiorari in Hudson Valley, he relied solely upon the substantiality of the question presented herein. Now that a conflict between the Circuits has developed, there should be no doubt as to the propriety of granting the writ. Il. This Case Presents An Important Question Of Federal Law Which Has Not Been, But Should Be, Resolved By This Court This case presents an important question of federal law for two reasons. First, the project at issue is one of many which are being and will be undertaken nationwide, involv- ing many millions of dollars, and potentially presenting the same issue. Second, the decision below may well cause numerous such projects to be begun, only to be discon- tinued later when this Court or another Court of Appeals rules that Congressional approval was in fact required, thus causing a substantial waste of federal and state funds. A. There are and will continue to be numerous projecis raising this issue While the effect of the massive dike at issue herein would be quite substantial with regard to the Chesapeake Bay Region alone, the legal question presented has far broader implications. The proposed Hart and Miller Islands disposal facility represents but one of many simi- lar diked disposal projects across the country. In fiscal 1979, the Corps of Engineers expended $324,000,000 to remove 282,000,000 cubic yards of dredged materials from the system of navigable waterways which includes 25,000 15 miles of waterways and 500 harbors; over the last decade, the Corps has expended well over three billion dollars on such projects.’ In order to dispose of this enormous quantity of dredged material, the Corps has designed and authorized the construction of many diked disposal sites nationwide."* Additionally, the question presented herein will assume increasing importance in the coming decades, as both fed- eral and state governments have recently imposed stringent restrictions on open water disposal of polluted dredged materials. See Court of Appeals Opinion, App. 5 n.5, 17 n.10, 19. For example, one of the stated objectives of Section 404 of the Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816, is to control open water disposal of dredged materials. See 118 Cong. Ree. 33699 (1972) (remarks of Sen. Muskie). Further, the 1977 amendments to the Clean Water Act, Pub. L. No, 95-217, 91 Stat. 1566, 1577-78 (1977), have strengthened this policy by adding a new subsection (t) to Section 404, requiring that future federal dredging activi- ties be consistent with state ‘water quality regulations. In many states these regulations require confined disposal of dredged material. See, e.g., Md. Ann. Code, § 8-1602 (1979 Supp.); N.C. Gen. Stat. §113-229(i) (1978); Fla. Stat. Ann. § 403.813(2)(£) (West 1980). 7 Water Resources Support Center, U.S. Army Corps of Engi- neers, ‘‘Summary of Activities’’ (April 9, 1980). 8 Office of Dredged Material Research, U.S. Army Corps of Engineers, ‘‘Practices and Problems in the Containment of Dredged Materials in Corps of Engineer Projects’’ Table 3, Ap- pendix D (1974). Othe indications of the evolving federal policy in favor of confined disposal of dredged material appear in the Marine Pro- tection, Research, and Sanctuaries Act of 1972, Pub, L. No, 92-532, 86 ‘stat. 1052 (1972) (codified at 33 U.S.C. § 1401(b)), and in the Senate’s ratification of the Convention on the Prevention of Marine 16 As a consequence of these legislative actions, use of con- fined disposal facilities like the Hart and Miller Islands project is expanding significantly, and the legal question whether such structures fall within Section 9 or 10 of the Rivers and Harbors Act is becoming even more significant. Moreover, the import of the term “dike” in Section 9 also has significance apart from the movement toward contained disposal of dredgings. Hudson Valley involved a dike to retain fill for a road; Petterson dealt with an airport runway extension; and Citizens Committee for Environmental Protection v. United States Coast Guard, supra, concerned placement of fill behind retaining walls for a highway extension. Other projects where the Corps has issued permits for “dikes” have involved the creation of parks and recreational areas, railroad embankments, and the enlargement of forts.”° B. The erroneous decision below may cause the waste of millions of dollars The decision below is plainly wrong. Permitting it to go unreviewed at this time may well waste millions of dollars of federal and state funds. The Corps will undoubtedly be emboldened by this decision, and will consistently process permits for similar dikes without Congressional approval. Moreover, even in those cases where environmental groups, citizens or individual congressmen have the interest and wherewithall to challenge such actions, District Courts may initially be swayed by the Fourth Circuit’s decision herein, with its veneer of careful legislative and administrative analysis. While we are confident that Section 9 will ulti- Pollution by Dumping of Wastes and Other Matter. 119 Cong. Ree, 28012 (1973). *° See Parker vy. Citizens Committee for the Hudson Valley, Reply Brief in Support of Certiorari 7-8 (No, 614, October Term, 1970). 17 mately be interpreted correctly by this Court and the other Courts of Appeal, awaiting that eventuality, which will stop projects like the instant one in midstream, will be exceed- ingly costly and inefficient.” The Fourth Cireuit erred in interpreting Section 9 of the Act by failing to abide by the principles of statutory construction reiterated by this Court on numerous occa- sions. As illustrated above, the plain meaning of the term “dike,” buttressed by various dictionary definitions and by the consistent use of that term by the Corps to describe this very project, indicates that the structure at issue is a “dike” for purposes of Section 9. Congress’ additional lan- guage—that such dikes may be “over or in’’ navigable waterways—confirms this conclusion, and illustrates the impropriety of any contention that Section 9 dikes must completely span a waterway. The Court of Appeals, however, concluded that dikes which do not entirely span a body of water are not dikes for this purpose. Under this approach, a dike (in the com- mon sense of the word) which blocked 90 percent of the width of the Mississippi River would not be a dike for purposes of Section 9, and its construction would not re- quire congressional approval. However, construction of a bridge across the Mississippi (which might well obstruct navigation to a far lesser extent) would require congres- sional approval. The basis for this illogical conclusion was an uncritical, virtually verbatim adoption of the Corps’ arguments based upon what it called legislative and admin- istrative history. However, these arguments are fatally flawed in numerous ways. First, in order to avoid applying the plain meaning of the term “dike,” the Court of Appeals accepted the Corps’ invitation to find the term ambiguous. As noted above, this *' See TVA v. Hill, 437 U.S, 153 (1978) ; Hudson Valley, supra, 425 F.2d at 105, 18 supposed ambiguity derived from the Fourth Circuit's reading of Wisconsin v. Illinois, supra, 268 U.S. at 413, a case dealing not with Section 9, but with the interrelation- ships of the three clauses in Section 10, Because this Court found those relationships ambiguous, the Fourth Circuit concluded that the holding “probably” covered “Section 9 as well’? (App. 7). Having found Section 9 ambiguous, the Court of Appeals proceeded to examine its legislative history. However, rather than relying upon anything that was said at the time concerning Congress’ intentions, the Court adopted the Corps’ speculation that the congressional consent re- quirement in Section 9 may have been attributable to certain dicta in United States v. Keokuk & H. Bridge Co., supra, and United States v. Rider, supra. The Court of Appeals reasoned that since those cases “limited Con- gressional power to delegate authority over two structures that completely spanned navigable rivers ... Section 9 may well have been intended to require Congressional approval only where agency approval would have been an unconstitutional delegation of legislative power, i.e., for [structures] that completely span navigable waterways.” (Apy. 15) (emphasis added). Not only was this speculation unnecessary since Con- gress did not add the congressional consent requirement in 1899, see p. 6 supra, but it is also unconvincing for several reasons, First, there is no indication whatsoever that Con- gress was aware of these decisions or was taking cogni- zance of them in amending the Act. Second, these dicta were rejected before passage of the 1899 Act and thus were not even prevailing law at the time.” Third, Keokuk and Rider do not even stand for the suggested proposition, but instead for the narrower proposition that Congress may not delegate to the executive the authority to order alterations in bridges previously authorized by Congress. #821 Op. A.G, 430, 436 (1896) ; United States v. City of Moline, 82 F, 592 (N.D. Ill. 1897). 19 In any event, such pure speculation about legislative in- tent is clearly inappropriate. Maine v. Thiboutot, supra, — U.S, -——, slip. op. 5-7; United States v. South-East- ern Underwriters Ass'n, 322 U.S. 533, 556-58 (1944)."" The Fourth Circuit then proceeded to buttress this “leg- islative history’? with purported administrative practice. Considering such materials as a 1926 lecture, isolated Con- gressional testimony in 1916, a Corps regulation promul- gated after the commencement of this lawsuit and an affi- davit filed in connection with another case, the Court found evidence of a consistent administrative practice “of over eighty years.” (App. 17). This paltry material, how- ever, simply does not demonstrate a long-standing admin- istrative interpretation sufficiently weighty to overcome the clear statutory language to the contrary.” Moreover, the Corps’ reliance on its allegedly con- sistent administrative practice does not serve as a defense to the claim that it exceeded its jurisdiction when it issued the permit in question. In the words of this Court,’ the proposition that the construction of a statute by the agency — --_—— **1f the Court truly wished to determine congressional intent, it could have examined the contemporaneous usage of the term ‘*dike’’ by Congress. In both the 1890 and 1894 River and Harbors Acts, Congress prohibited certain actions which would impair or injure any ‘‘seawall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States in whole or part, for the preservation and improvement of any of its navigable waters, or to prevent floods... .’’ Rivers and Harbors Act of 1894, § 6, 27 Stat. 363; Rivers and Harbors Act of 1890, § 9, 26 Stat, 454, In this context Congress clearly envisioned dikes in or along and not necessarily across navigable waterways, See also Gibson v. United States, 166 U.S. 269 (1897) (‘‘dike’’ in Ohio River). ** The lecture and congressional testimony relied upon are clearly not the type of evidence necessary to demonstrate a consistent administrative practice, The affidavits also miss the mark since they primarily demonstrate Corps approval of dikes within harbor lines, or in bodies of navigable water which touch only one state, both of which are outside the explicit language of the first clause of Section 9. 20 charged with its administration should be given great weight “must be tempered with the caveat that an agency may not bootstrap itself into an area in which it has no jurisdiction by _oe violating its statutory man- date.’’ Federal Maritime Commission v. Seatrain Lines, Inc., 411 U.S, 726, 745 (1973). See S.E.C. v. Sloan, 436 U.S, 103, 118-19 (1978); Adamo Wrecking Co. v. United States, 434 U.S, 275 (1978). Finally, the Fourth Circuit attempted to legitimate the tenuous evidence of administrative practice with the argu- ment that, as a result of the consideration of the Federal Water Pollution Control Act Amendments of 1972, Con- gress “was not only aware of, but approved and encour- aged the Corps’ practice.” (App. 18). However, the evi- dence of congressional approval, or even awareness, falls far short of the standards for such a showing outlined by this Court. See S.#.C. v. Sloan, supra, 436 U.S. at 120-21. In any event, there is no real indication that Congress was ever made aware of, much less approved, the Corps’ interpretation of Section 9. The Fourth Circuit’s discussion of the 1972 legislation and its history rests on the faulty assumption that references to “disposal sites’’ are to dikes. In fact, “disposal sites” refers to any location suited to that purpose, either on land or water. Moreover, the ref. erence to Representative Vanik’s comments (App. 18), rather than supporting the Court of Appeals’ holding, demonstrates its error. As noted above, Congress ex- pressly exempted construction of diked disposal sites in the Great Lakes from the consent requirement of Section 9.” Contrary to the Fourth Circuit’s implication that the long list of land or diked disposal sites inserted in the Congres- sional Record alerted Congress to the Corps’ practice un- ** Rivers and Harbors Act of 1970, Pub. L. No, 91-611, §§ 101, 123, 84 Stat. 1818, 1823 (1970). 21 der Section 10, this episode confirms the congressional un- derstanding that Section 9 applies to such dikes and that they must be expressly exempted from Section 9 if that is Congress’ desire. In sum, the Fourth Circuit’s reliance upon these various legislative and administrative materials simply does not support its decision to ignore the plain meaning of the statute. Given the length of its opinion and its veneer of careful analysis of legislative and administrative history, however, the decision below may lead some courts to per- mit projects like the one at issue to proceed without Con- gressional consent. A ruling thereafter from this Court or another Court of Appeals, following the Second Cir- cuit’s reasoning in Hudson Valley, will halt those projects, thereby causing untold waste of public funds. The situation requires a definitive ruling from this Court at this time. CONCLUSION For the reasons stated, this Court should issue a writ of certiorari to the United States Court of Appeals for the Fourth Circuit. Respectfully submitted, Of Counsel: Leonard B. Simon James B. Dobkin Eli Whitney Debevoise, II ARNOLD & PoRTER ARNOLD & PorRTER si ts Wee idee 1200 New Hampshire Avenue, NW — ae NW. Washington, D.C. 20036 ae ae 20086 Edward B. Rybe ki itt. Ralph K. oe. = all, Jr. Counsel for Petitioners 820 Fidelity Building Baltimore, Maryland 21201 August 22, 1980 APPENDIX la APPENDIX UNITED STATES COURT OF APPEALS FOR TEE FOURTH CIRCUIT Nos. 78-1911, 78-1912, 79-1037 Hart anp Mituer Istanps ArEA ENVIRONMENTAL Group, Inc., a Maryland Corporation; HonoraBLe CLARENCE Lona, M.C.; HonorasLteE Norman R. Stone; Maryann WILDLIFE Feperation, Inc., a Maryland Corporation; Jonn HenpeEr- son; HowarD SAPPINGTON; GEoRGE WoHLLEBEN; Rosert Scott; Marcaret CALDWELL; CHARLES JUSTICE, Appellees, v. Tue Corps or ENGINEERS OF THE Unitep States Army; HonoraB_e Cuirrorp L. ALExanper, Secretary of the Army; Lr. GeneraL JoHN W. Morais, Chief of Engineers of the United States Army; Cox. G. K. Wirners, District Engi- neer, Baltimore District, United States Army Corps of Engineers, Appellants, and State or Maryann, Ex Rel, Francis B. Burcu, Attorney General, Steamship Trade Association of Baltimore, Inc., Intervening Defendants/ Appellants OPINION Appeals from the United States District Court for the District of Maryland, at Baltimore. Herbert F. Murray, District Judge. Argued May 7, 1979 Decided May 28, 1980 Before Wipener and Hatt, Circuit Judges, Warriner, Dis- trict Judge* * United States District Court for the Eastern District of Vir- ginia, sitting by designation. Wivener, Circuit Judge: ‘he State of Maryland applied to the U.S. Army Corps of Engineers (the Corps), in 1972, for a permit pursuant to Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, to construct a diked disposal area for dredged material on and adjacent to Hart and Miller Islands in Chesapeake Bay. The purpose of the project is to provide a site for dumping material dredged from the bottom of Baltimore Harbor and its approach channels. This material will include spoil from maintenance dredging and spoil produced by the Baltimore Harbor Channel Project, which is a Corps project designed to increase the depth of Baltimore Harbor.’ The Corps held a public hearing on the proposal in August 1972 and completed a draft environmental impact statement in February 1973. Action on the Maryland ap- plication was delayed in order to comply with Section 404 of the Federal Water Pollution Control Act of 1972, Pub. L. 92-500, 86 Stat. 816, 844, 33 U.S.C. § 1344. A second public hearing was held in May 1975, see 459 F.Supp. 281- 282, and additional written comments were received in response to circulation of the draft environmental impact statement. The Corps issued a final environmental impact statement in February 1976. The Secretary of the Army, in November 1976, acting through the Corps, issued a permit to the State of Maryland, under Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Federal Water Pollution Control Act of 1972, authorizing con- struction of the diked disposal facility. Congress authorized the Baltimore Harbor Channel Project with the understanding that the State of Maryland would provide a disposal area for the spoil to be produced. Rivers and Harbors Act of 1970, Pub. lL, 91-611, § 101, 84 Stat. 1818; H.R. Rep. No. 1665, 91st Cong., 2d Sess, 10 (1970). 3a Two environmental groups and a number of individuals commenced this action against the Corps in June 1977, seeking declaratory and injunctive relief voiding the per- mit. The complaint alleges that the Corps lacks the au- thority to issue the permit under Section 10 of the Rivers and Harbors Act because the barrier to surround the fill constitutes a “dike” which requires Congressional approval under Section 9 of that act, 33 U.S.C. § 401. The State of Maryland and the Steamship Trade Association of Balti- more intervened as defendants. All parties filed cross- motions for summary judgment in May 1978. 459 F.Supp. 280. The district court granted the plaintiffs’ motion for sum- mary judgment and denied the motions filed by the defen- dants. Hart and Miller Islands Area Environmental Group, Inc. v. Corps of Engineers, 459 F.Supp. 279 (D. Md. 1978). The court held that the Corps could not authorize construc- tion of the disposal facility because it was a dike within the meaning of Section 9 of the Rivers and Harbors Act of 1899 and therefore required Congressional approval. Section 9 of that statute requires the consent of Con- gress for the construction of “any bridge, dam, dike, or causeway over or in” any navigable water of the United States.? Under Section 10 of the same act the authorization *Section 9 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401, now reads: It shall not be lawful to construct or commence the con- struction of any bridge, dam, dike, or causeway over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of the Army: Provided, That such structures may be built under authority of the legislature of a State across rivers and other waterways the navigable portions of which lie wholly within the limits of a single State, provided 4a of the Secretary of the Army is sufficient for the construc- tion of “any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures.”* The sole issue de- cided in this appeal is whether the Hart and Miller Islands diked disposal area is subject to Section 9 or Section 10 of the Rivers and Harbors Act. We hold that the structure is not a dike within the meaning of Section 9 and is gov- erned by Section 10 of the statute. Therefore, it does not require Congressional approval. We thus approve the issuance of the permit by the Corps and reverse the dis- trict court. the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of the Army before construction is commenced: And provided further, That when plans for any bridge or other structure have been approved by the Chief of Engineers and by the Secretary of the Army, it shall not be lawful to deviate from such plans either before or after completion of the structure unless the modification of said plans has previously been submitted to and received the approval of the Chief of Engineers and of the Secretary of the Army. 3Section 10 of the Rivers and Harbors Act of 1899 is now 33 U.S.C, 403: The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters to the United States is 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 author- ized 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 channe] 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. 5a Baltimore Harbor and its nearby navigation channels have been dredged many times in the past. Dredging will continue, both to maintain existing channels and to in- crease the depth of the harbor and channels.’ An estimated 100 million cubic yards of bottom sediment will be dredged from Baltimore Harbor and nearby channels in the next twenty years. Historically, the dredged material has been dumped in the open waters of Chesapeake Bay. Such open water dumping causes pollution in the vicinity of the dis- posal site since the dredged bottom sediment contains toxic chemicals, heavy metals, oil, grease, and other substances. The spoil material deposited by open water dumping, of course, may also damage bottom dwelling fauna.’ The disposal area is designed to improve the water quality of Upper Chesapeake Bay by the elimination of open water dumping. Hart and Miller Islands are privately owned, contain no permanent structures, and are used by a limited number of boaters for recreation (without the owner’s permission). There are beaches and wetlands on both islands, and part of Hart Island is forested. Both islands have a serious erosion problem which has decreased the area of Hart Is- land from 150 acres in 1933 to 120 acres in 1967, and de- *In 1970, Congress authorized funds for the Baltimore Harbor Channel project, which will deepen the Harbor and its approach channels to a depth of fifty feet. The present depth is from thirty- nine to forty-two feet. Rivers and Harbors Act of 1970, Pub, L. 91-611, § 101, 84 Stat. 818. * Open-water dumping has been the subject of continuous criti- cism. As a consequence, the State tells us without contradiction that in 1969 the Maryland legislature authorized the expenditure of $13,000,000 for the design and construction of one or more con- tainment areas to act as a receptacle for spoil dredged from Baltimore Harbor and the approach channels, Recognizing the deleterious environmental effects of open water dumping, in 1975 Maryland prohibited the discharge of spoil from Baltimore Harbor unless it was deposited in containment facilities. Md. Ann. Code, Sec. 8-1602. 6a creased the area of Miller Island from 50 acres in 1933 to 33 acres in 1967. The maximum elevation of either island is 5.5 feet. The disposal area will be 1,100 acres, approximately 12,430 feet by 4,700 feet, and will contain 52 million cubic yards of sediment when filled to its capacity of 18 feet above mean low water. About 52 percent of Miller Island (18.4 acres) and 11.5 percent of Hart Island (10.9 acres) will be covered by the facility. The dike will be constructed from sand deposits adjacent to and underlying the enclo- sure, and the face toward the bay will be rip-rapped with stone. Three sluice gates will be provided to prevent over- topping and washout of the dike. The islands are approxi- mately one mile from the nearest point on the mainland, the western side of the bay. The containment area will be located on the eastern or bay side of the islands. The dike will extend from Hart and Miller Islands no more than 4,700 feet into the Bay in an area where the Bay is about 7 miles wide. Essentially the area is made by connecting Hart and Miller Islands with a wall, and, using the islands as two corners, then extending other walls into the Bay at right angles to the connecting wall between the islands, the ends of the walls extended into the Bay then being connected by another wall. The dredged material will be retained in the disposal area for months or years. Sediment will settle and water will slowly percolate through the bottom of the dike until a water-level equilibrium is reached. All particulate matter will be retained in the containment area. While the Harbor spoil can be expected to contain substances that exert a biochemical oxygen demand, the slow filtration through the dike walls will eliminate the oxygen demand before the filtrate reaches the Bay. Sedimentation and filtration, coupled with the long retention period, will effectively re- move and destroy any pathogenic bacteria that might be present in the Harbor mud. 7a The Army Corps of Engineers processed the permit application under Section 10 of the Rivers and Harbors Act. Since the adoption of that statute, the Corps has con- sistently interpreted Section 9 as requiring Congressional approval only for structures which completely span a navi- gable waterway. Under Section 10, the Corps has admin- istratively authorized structures which do not extend en- tirely across a waterway, no matter how large and whether or not called dikes. See infra at 23-24. The Corps argues that the statute is ambiguous and therefore the paucity of case law emphasizes the significance of the relevant legis- lative history and administrative practice and interpreta- tion. The Supreme Court has held in a case involving this very statute that we should look to the administrative con- struction thereof, and has also held at least Section 10 is ambiguous and probably Section 9 as well. In Wisconsin v. Illinois, 278 U.S. 367 (1929), the Court upheld the va- lidity of a Section 10 permit authorizing diversion of water from Lake Michigan, rejecting the argument that the diver- sion required Congressional approval because it constituted an obstruction to navigation. After briefly describing the legislative history of the Rivers and Harbors Act of 1899, the Court stated: Congress, having stated in Section 9 as to what par- ticular structures its specific consent should be re- quired, intended to leave to the Secretary of War, act- ing on the recommendation of the Chief of Engineers, the determination of what should be approved and au- thorized in the classes of cases described in the second and third clauses of Section 10. If the section were construed to require a special authorization by Con- gress whenever in any aspect it might be considered that there was an obstruction to navigable capacity, none of the undertakings specifically provided for in the second and third clauses of Section 10 could safely be undertaken without a special authorization of Con- gress. We do not think this was intended... . 8a The true intent of the Act of Congress was that un- reasonable obstructions to navigation and navigable capacity were to be prohibited, and in the cases de- scribed in the second and third clauses of Section 10, the Secretary of War, acting on the recommendation of the Chief of Engineers, was authorized to determine what in the particular cases constituted an unreason- able obstruction. This construction of Section 10 is sustained by the uniform practice of the War Department for nearly thirty years. Nothing is more convincing in interpre- tation of a doubtful or ambiguous statute. ... The practice is shown by the opinion of the Acting Attorney General, transmitted to the Secretary of War, 34 Op. Atty. Gen. 410, 416. The Secretary of War acted on this view on May 8, 1899, about two months after the passage of the Act.... The fact that the Secretary of War acted on this view was made known to Congress by many reports. 278 U.S. 367, 412-414 (Citations omitted). Very few cases have dealt with Section 9 and the mean- ing of the word dike. Citizens Committee for the Hudson Valley v. Volpe, 302 F.Supp. 1083 (S.D. N.Y. 1969), aff’d 425 F2d 97 (2d Cir. 1970), cert. denied (sub nom Parker v. Citizens Comm. for Hudson Valley), 400 U.S. 949 (1970), involved a permit to construct an expressway along the east bank of the Hudson River. The construction protruded into the river. The district court held that Congressional consent was necessary for construction of a rock dike parallel to the shore of the river, designed to contain fill and thus create new land to support the highway. Relying on dictionaries, the court applied the ordinary meaning to the term dike as used in Section 9. 302 F.Supp. at 1088-89. The Court of Appeals affirmed in an opinion primarily concerned with questions of standing and jurisdiction, which only “briefly” addressed the merits. 425 F2d 97, 196. Ya The Corps and the State argue that the record before the court in Hudson Valley was deficient because it did not contain the full legislative and administrative history ma- terials presented to the court below in this case. In Petterson v. Resor, 331 F.Supp. 1302 (D. Or. 1971), remanded as moot, 494 F2d 124 (9th Cir, 1974), the court did not have the benefit of legislative and administrative history materials, and adopted a more limited interpreta- tion of Section 9. The project at issue involved depositing fill, surrounded by a retention structure, in the South Slough of the Columbia River in order to support an air- port runway extension. The district court determined that the project did not involve dikes (within the meaning of Section 9) because Congressional consent was required only “for those structures like bridges, dams and dikes, usually larger structures, which are placed across a river and which constitute an obstruction to navigation,” 331 F.Supp. 1302, 1806. The court held that the runway exten- sion did not obstruct navigation and thus Congressional approval was not required. The case became moot because the Port of Portland formally withdrew its plan to enlarge the airport, and as a result the Corps of Engineers can- celed the permit. Citizens Committee for the Columbia River v. Callaway, 494 F2d 124, 125 (9th Cir. 1974). A 42 mile canal was at issue in Sierra Club v. Morton, 400 F.Supp. 610 (N.D. Calif. 1975). Because the structure, labeled a canal, would cross and completely dam and ob- struct a navigable river, the court determined that it was a “dam” or “dike” within the meaning of Section 9. 400 F.Supp. 610, 626-27, The challenged project in Citizens Committee for En- vironmental Protection v. United States Coast Guard, 456 F.Supp. 101 (D, N.J. 1978), involved placement of fill be- hind retaining walls in the Raritan River, in order to sup- port a highway extention. Rejecting the plaintiffs’ argu- ment that the fill constituted a dam or dike, the court de- 10a termined that the critical question was whether the activity constituted an unreasonable obstruction to navigation. Since the impact of the project on actual navigation was negli- gible, the court held the Corps was justified in determining that Section 9 did not apply, 456 F.Supp. 101, 113-14, and that a Section 10 permit was sufficient.* * Other courts, without addressing the issue, have applied Section 10 to dikes that do not span a waterway. In United States v. Bailey, 467 F.Supp. 925 (B.D, Ark, 1979), the Corps had issued a permit, pursuant to Section 10, for the construction of a dike extending into but not across the Arkansas River, The court held that the Government was estopped from asserting that the dike was constructed in violation of a restriction embodied in the Corps’ permit. In United States v. Cameron, 466 F.Supp. 1099 (M.D. Fla. 1978), it is apparent that both the court and the parties would have applied Section 10 to a dike but for the fact that the dike was located above the ordinary high water mark, Magno vy. Corros, 439 F.Supp, 592 (D, S.C, 1977), was a wrong- ful death action arising out of the collision of a boat with a rock dike protruding 1,100 feet into a river, The court noted that the United States had clear authority to construct the dike, citing Section 10, 439 F.Supp. at 599, One other court would have applied Section 9 to a dike that did span a waterway. Environmental Defense Fund v, Alexander, 467 F.Supp. 885 (N.D. Miss. 1979), was a challenge to construction of the Tennessee-Tombigbee Waterway which Congress authorized in 1946, A quarter of a century later, the Corps authorized modifica- tions in the still uncompleted project to add dams, dikes, and causeways. The court held that construction of ‘‘dikes or cause- ways across the Tibbee and Tombigbee River,’’ without specific Congressional approval, would violate Section 9 but for the fact that the structures were temporary and, upon completion of the project, would be covered by thirteen feet of water, 467 F.Supp. at 911. The court relied on Sierra Club and Hudson Valley, but, since the structures extend across the river, the holding is consist- ent with Petterson. The court also held that a project modification to replace levees along the side of the waterway with five dams across the canal section of the waterway was within the Corps’ discretion and did not constitute a violation of Section 9 although the damming structures extended across the waterway. lla Plaintiffs claim that the language contained in the Rivers and Harbors Act is clear, and that its plain mean- ing should control without reference to legislative history or administrative practice. The few decided cases do not support this argument. Plaintiffs in Petterson v. Resor relied on I/udson Valley, but the Petterson court refused to do so. In Sierra Club v. Morton, the court professed to follow Hudson Valley, but its holding is consistent with Petterson. Citizens Committee for Environmental Protec- tion declined to follow either Hudson Valley or Sierra Club and instead applied the test of Petterson, If the lan- guage we have quoted from Wisconsin v. Illinois is not sufficient, these conflicting interpretations of Section 9 demonstrate that the language is not clear and has no plain meaning apparent to the courts. As the nation grew and expanded in the nineteenth cen- tury, State legislatures authorized construction of dams and bridges that blocked waterborne commerce on navi- gable rivers. Challenges to these actions resulted in Su- preme Court holdings that, in the absence of federal legis- lation to the contrary, the States had the power to au- thorize construction of bridges, dams, or other structures even if they obstructed navigation.’ Congress responded by providing for affirmative federal regulation of obstruc- tions to navigation in order to control the proliferation of bridges which obstructed commercial river navigation. 21 Cong. Rec. 8602-05, 8607, 8684, 9813 (1890); see 40 Cong. Ree. 1717 (1906). Section 7 of the Rivers and Harbors Act of 1890, 26 Stat. 453, 454, in general terms, prohibited the construction of all obstructions to navigation unless ap- "The Supreme Court rejected claims that the common law of the United States prohibits obstructions in our navigable waters, Williamette iron Bridge Co. v. Hatch, 125 U.S. 1, 8 (1888), and that language in State enabling acts declaring that navigable waters must remain ‘‘forever free’’ was an expression of Con- gressional intent to prohibit State authorized obstructions. 7d. at 12; Cardwell v. American River Bridge Co., 113 U.S, 205 (1885). lla proved by the Secretary of War.* The first clause of that section prohibited building any wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty, or other structure, not within established harbor lines, sc as to obstruct or impair navigation, without the permission of the Secretary of War. The second clause prohibited the construction of any bridge, bridge-draw, bridge piers and abutments, causeway, or other works, over or in any navigable waters, under any act of the legislative assembly of any State, unless approved by the Secretary of War. Congress, in 1896, directed the Secretary of War to pre- pare a compilation of existing laws relating to the pro- ® Section 7 of the Rivers and Harbors Act of 1890, 26 Stat. 454: That it shall not be lawful to build any wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty, or structure of any kind outside established harbor-lines, or in any navigable waters of the United States where no harbor-lines are or may be established, without the permission of the Secretary of War, in any port, roadstead, haven, harbor, navigable river, or other waters of the United States, in such manner as shall obstruct or impair navigation, commerce, or anchorage of said waters, and it shall not be lawful hereafter to commence the construction of any bridge, bridge-draw, bridge piers and abutments, causeway or other works over or in any port, road, roadstead, haven, harbor, navigable river, or navigable waters of the United States, under any act of the legislative assembly of any State, until the location and plan of such bridge or other works have been submitted to and approved by the Secretary of War, or to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of the channel of said navigable water of the United States, unless approved and authorized by the Secretary of War: Provided, That this section shall not apply to any bridge, bridge-draw, bridge piers and abutments the construction of which has been heretofore authorized by law, or be so con- strued as to authorize the construction of any bridge, draw bridge, bridge piers and abutments, or other works, under an act of the legislature of any State, over or in any stream, port, roadstead, haven or harbor, or other navigable water not wholly within the limits of such state. l3a tection of navigable waters, along with suggestions for a revision. Rivers and Harbors Act of 1896, Section 2, 29 Stat. 202, 234. The Corps of Engineers submitted the draft revision along with the compilation in 1897. After the Rivers and Harbors Bill of 1899 had been passed by the House (H. R. 11795; 32 Cong. Ree. 1408 (1899) ), the Corps’ draft was introduced in the Senate as an amendment to the bill with the representation that it, except amendments, was in accord with existing statutes. 32 Cong. Rec. 2296- 2297 (1899). The Senate passed the bill, as amended, the same day. 32 Cong. Rec. 2302. The Conference Committee accepted the amendments and renumbered the relevant portions as Sections 9 and 10. The House Conferees pre- sented the final bill to the House with the following state- ment: The bill as now agreed upon and presented also in- cludes a codification of existing laws pertaining to rivers and harbors, though containing no essential changes in the existing law. 32 Cong. Rec. 2923. Both houses accepted the Conference Report, and the bill, as drafted by the Corps, became law. 32 Cong. Rec. 2843, 2925, 2934 (1899). Thus, the Corps’ draft became Sections 9 and 10 of the Rivers and Harbors Act of 1899. Congress passed the Act, without carefully examining its provisions, on the strength of representations that the Act made no significant change in existing law. As the Supreme Court put it, “Sections 9 and 10 [of the 1899 Act] were the re- arranged result of the provisions of Sections 7 and 10 of the Act of 1890.”° Wisconsin v, Illinois, 278 U.S. 367, 412 -- ® A close examination of Sections 9 and 10 and their predecessor provisions resolves any apparent inconsistency between the Supreme Court’s statement that Sections 9 and 10 of the 1899 Act are derived from Sections 7 and 10 of the 1890 Act, and our taking clauses 1 and 2 of Section 7 of the 1890 Act as the relevant predecessor provisions. Both of the clauses at issue here (Section 9, clause 1 and Section 10, clause 2, of the 1899 Act) are derived l4a (1929). It is entirely proper to interpret the ambiguous 1899 Act in light of its predecessor statutory provisions. As stated, the issue in the present case is whether the Hart and Miller Islands disposal area is governed by the second clause of Section 10 or the first clause of Section 9 of the 1899 Act. The second clause of present Section 10 (33 U.S.C. § 403) derives from the first clause of Section 7 of the 1890 Act. The only significant change is that dam is not among the structures listed in the present Section 10. The first clause of Section 9 (33 U.S.C. § 400) derives from the second clause of Section 7 of the 1890 Act, which referred to works authorized by State legislatures. A comparison of the 1890 and 1899 statutes, however, reveals there was in fact a change from 1890, when all authority was delegated to the Secretary of War, to 1899, when a part was reserved to Congress. Remembering the representations in Congress of no substantial change, that change is understood in light of United States v. Keokuk ¢é H. Bridge Co., 45 Fed. 178 (S.D. Iowa 1891) and United States v. Rider, 50 Fed. 406 (S.D. Ohio 1892). Both cases dealt with Congressional delegation, to the Secretary of War, of the power to compel alteration of bridges that obstruct navigation, parts of the Rivers and Harbors Acts. In broad dictum, the first case indicated it would be an unauthorized delegation of power by Congress to “confer upon the secretary of war the power to determine when and where bridges should be built over the navigable rivers of the country,” 45 Fed. 178, 183, and held invalid the delegation of power to the Secretary of War to declare lawfully constructed bridges to be obstructions to naviga- from Section 7 of the 1890 Act. Clause 1 of Section 10 of the 1899 Act, which prohibits ‘‘the creation of any obstruction’’ to navig- able waters without authorization, and which is not at issue here, is derived from the first sentence of Section 10 of the 1890 Act. Compare 30 Stat. 1151, 33 U.S.C. §§ 401, 403, with 26 Stat. 453, 454 and 27 Stat. 110. l5a tion. The second case, construing the Rivers and Harbors Act of 1890, relied upon the first and held that the statute impermissibly delegated legislative power. 50 Fed. 406, 410. These cases thus limited Congressional power to dele- gate authority over two structures that completely spanned navigable rivers. Neither case dealt with obstructions that did not span navigable waters. Section 9 of the 1899 Act differs from its predecessor because it requires Congres- sional approval, and it adds dams and dikes to the list of structures affected. The legislative history of the Act to- gether with the then prevailing precedents, Keokuk and Rider, indicate that Section 9 may well have been intended to require Congressional approval only where agency ap- proval would have been an unconstitutional delegation of legislative power, i.e. for bridges, causeway, dikes, or dams that completely span navigable waterways. In all events, this is a perfectly reasonable construction of the statute, and it has been so construed by the Corps since its passage. Taking the view of the structures listed in Section 9 of the 1899 Act, two are works which, by definition, span water- ways (bridges and dams). Dikes as used in that section, according to this construction, should be interpreted to include only dikes that span waterways. The Corps of Engineers, the agency that wrote the stat- ute and is charged with its execution, has interpreted Section 9 as applying only “to that class of structures such as bridges and dams which extend entirely across a water- way.” Lecture of Judge G. W. Koonce, 0.C.E. to Company Officer’s Class, Engineer School Fort Humphrey’s, Virginia, April 23, 1926, as reproduced in Hearings on Water Pollu- tion Control Legislation—1971 (Oversight of Existing Pro- grams) Before the House Committee on Public Works, 92nd Cong., Ist Sess., Ser. 92-10, 284-291, at 288 (1971). Section 10, according to the Corps, “relates to the construc- tion of works in the nature of wharves, piers, jetties, and the like, which project into, rather than cross, the bodies of water in which they are located.” Jd. at 289. The Secretary l6a of War, in testimony before the House Commerce Com- mittee in 1916, stated that Section 10 gives his depart- ment “the authority to permit or refuse to permit any obstruction, except the class which extend clear across a stream, however large and important, in any navigable water of the United States.” Hearings on General Dam Legislation Before the House Committee on Interstate and Foreign Commerce, 64th Cong., lst Sess., at 18 (1916). The then Chief of the Miscellaneous Civil Branch of the Corps of Engineers, James E. DeSista, summarized the Corps’ interpretation and practice in an affidavit originally prepared for the Petterson case which was also before the court below. It has been my interpretation, and that followed by my predecessors in office, that the terms “dike” and “causeway” as used in Section 9 of the Rivers and Harbors Act of 1899, 33 U.S.C. 401, refer to a struc- ture which results in the closure of a navigable water- way by extending completely across same so as to block navigation if no provision is made for its pas- sage. The building of a bulkhead, retaining wall, or revetment behind which solid fill is placed in navigable waters for use as a retaining structure has been ad- ministratively interpreted to constitute a class of struc- tures which can be authorized by the Secretary of the Army under Section 10 of the Act, 33 U.S.C. 403, notwithstanding that such bulkheads, retaining walls, or revetments are frequently referred to in the ver- nacular as dikes or causeways. Affidavit of James E. DeSista, August 6, 1970. The DeSista affidavit lists 20 “significant solid fill re- taining structures’ that have been authorized under Sec- tion 10, dating from 1920 to 1969. Id. The affidavit of John P. O’Hagan, Chief of the Operations Division of the Balti- more District of the Corps, submitted to the court below, so 17a confirms the DeSista affidavit and also lists 25 diked dis- posal areas authorized by the Baltimore District alone during fiscal years 1972 through 1977.° Affidavit of John P. O’Hagan, May 18, 1978. The Corps’ regulations imple- menting Section 9 of the 1899 Act, as amended in 1977, define a dike as an embankment, low dividing wall or other protective structure that completely spans a navigable waterway of the United States and that may obstruct interstate waterborne commerce. 33 C.F.R. 321.2(c), 42 Fed. Reg. 37139. While prior regula- tions contained no such explicit definition of dike, published regulations giving effect to the Corps’ interpretation are found in the Code of Federal Regulations since its incep- tion. See, e.g., 33 C.F.R. 209.120 (1948) ; 33 C.F.R. 209.120 (b)(1)(a) (1969); 33 C.F.R. 209.120 (1974). In construing Sections 9 and 10, we are guided by the “venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.” Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 381 (1969). The Corps’ interpretation deserves morc than usual de- ference in this case for several reasons. It drafted the bill which became the 1899 Act, and administers both Sections 9 and 10 of the Act, and therefore has special familiarity with the interrelationship between the two sections. The Corps has interpreted and administered the Act con- sistently for a period of over eighty years. The Supreme Court, in Wisconsin v. Illinois, supra, specifically sanc- tioned reliance upon the Corps’ administrative interpre- tation and administration of the Act. As early as 1916 ©In 1972 Congress amended the Federal Water Pollution Con- trol Act to encourage the use of dike disposal facilities, See infra, pp. 26-28. 18a the Secretary of War made the Corps’ view known to Con- gress. Judge Koonce’s speech, for example, stating the Corps’ interpretation that Section 9 only applies to struc- tures which extend completely across a waterway, was submitted to Congress during 1971 hearings on water pol- lution control legislation. See supra, p. 15-16. The legislative history of the Federal Water Pollution Control Act Amendments of 1972 demonstrates that Con- gress was not only aware of, but approved and encouraged the Corps’ practice of issuing permits for diked disposal areas, without specific Congressional approval. Section 404 (a) of the FWPCA, 86 Stat. 816, 884, 33 USC § 1344(a), provided: The Secretary of the Army, acting through the Chief 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.” In the House, Representative Vanik spoke to federally funded programs to halt the open-water disposal of dredged spoil. He sought and received assurances that Section 404 would not terminate the Corps’ existing program of plac- ing polluted dredgings “in dike or land sites,” as opposed to open-water dumping. Legislative History of the Water Pollution Control Act Amendments of 1972, p. 421. He stated that the Corps of Engineers gave him “a list of the harbors where dredgings were being placed in land or diked disposal sites,” and inserted the data in the Congres- sional Record. Representative Vanik’s concern was that not enough harbors were included in the program, Id. at 422. "In 1977 Congress amended this section, in immaterial ways that are not relevant here. 33 U.S.C. § 1344(a), Pub. L. 95-217, 91 Stat. 1566. 19a During Senate consideration of the Conference Report, Senator Muskie, the primary Senate manager for the bill, reported. The Conferees were uniquely aware of the process by which the dredge and fill permits are presently han- died and did not wish to create a burdensome bureauc- racy in light of the fact that a system to issue permits already existed. At the same time, the Committee expects the Ad- ministrator (of the Environmental Protection Agency) and the Seeretary (of the Army) to move expedi- tiously to end the process of dumping dredged spoil in water—+to limit to the greatest extent possible the dis- posal of dredged spoil in the navigable inland waters of the United States including the Great Lakes—to identify land-based sites for the disposal of dredged spoil and, where land-based disposal is not feasible, to establish diked areas for such disposal. All of these alternatives are available. 118 Cong. Rec. 33699 (1972). Congress, when it authorized the Baltimore Harbor Channel Project in 1970, gave an indication of its understanding that its further approval was not needed for diked disposal facilities. That Congress expected the dredged spoil to be placed behind retaining structures such as the dike at issue here is shown in the House Report: | Local cooperation.—Provide without cost of all lands, easements, and rights-of-way for construction and muintenance of the project and for aids to naviga- tion, iieluding spoil disposal areas, retaining dikes, bulkheads and embankments or the costs of such re- taining works. ... H.R. Rep. No. 1665, 91st Cong., 2d Sess., 10 (1970). 20a For most of this century at least, Congress has been aware of the Corps’ interpretation of the Act. When it amended the Federal Water Pollution Control Act, Con- gress was well acquainted with the prevailing Corps’ prac- tice of authorizing diked disposal areas pursuant to Sec- tion 10 of the 1899 Act. Congress has never interfered with this long-standing administrative practice. Even if it has not in terms ratified the Corps’ practice, Congress at least considers the practice to be consistent with the Act. See Boesche v. Udall, 373 U.S. 472, 483 (1963). Sections 9 and 10 of the Rivers and Harbors Act of 1899 must be construed together in a logical and consistent man- ner in order to best effectuate the intent of Congress. A logical distinction between those structures listed in Section 9 (which require Congressional approval) and those listed in Section 10 (which do not) is that the former class of structures completely span a waterway, while the latter do not. Section 9 structures are capable of completely block- ing a navigable waterway, while Section 10 structures merely protrude into a waterway and require only a re- routing of waterborne traffic. Since Section 9 structures usually necessarily destroy navigation, they require Con- gressional approval. Since Section 10 structures do not usually or necessarily destroy, but merely obstruct, navi- gation, they require only Corps approval. Finally, as the Petterson court noted, the expansive reading of Section 9 put forward by the plaintiffs could render Section 10 meaningless, since structures such as jetties, breakwaters, and fills would be covered by Section 9 although they are literally within Section 10. Limiting Section 9 to waterway-spanning structures, as the Corps has done, provides a clear, convenient, and workable dis- tinction between Section 9 and Section 10. This construc- tion is reasonable and is supported by the legislative his- tory of the statute. 2la We hold that the Corps of Engineers acted correctly in processing the application for the Hart and Miller Islands diked disposal facility under Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403. Accordingly the judgment appealed from is REVERSED. Filed: May 28, 1980 23a UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Civil No. HM77-973 Hart anp Mitier Istanps Area ENvIRONMENTAL Group, Inc., and Honoras.Le CLARENCE Lona, M.C., and Honoras_e Norman R. Stone and Maryann Wi.puire F'eperation, Inc. and JoHN Henperson and Howarp Sappineton and Grorcr WouLLeBEN and Rosert Scott and Marcaret CALDWELL and CHARLES J USTICE V. THe Corps or ENGINEERS OF THE UniTEp States and Honor- ABLE Ciirrorp L. ALEXANDER, Secretary of the Army, and Lr. Gen. Jonw W. Morris, Chief of Engineers of the United States Army and Cot. G. K. Wiruers, District Engi- neer, Baltimore District, U.S. Army Corps of Engineers State or Maryann, ex rel, Francis B. Burcu, ATToRNEY GENERAL OF MaryLANpD MEMORANDUM AND ORDER On June 30, 1977, a number of environmental groups and interested individuals filed suit against the Corps of Engi- neers (hereinafter the Corps), seeking in an eleven count complaint relief from the issuance of a permit by the Corps to the State of Maryland for the construction of a dike and disposal area in the Chesapeake Bay. On October 10, 1977, this court granted the motions of the State of Maryland and the Steamship Trade Association of Baltimore, Inc. to intervene as defendants in this action. Since that time, all parties have engaged in extensive discovery and on May 31, 1978 all parties filed cross motions for summary judgment. The motions for summary judgment were the subject of oral argument on June 21, 1978 and it is the purpose of this memorandum and order to rule on these motions. PREVIOUS PAGE WAS BLANK | 24a Background On February 23, 1972, the State of Maryland, through its Department of General Services, filed an application with the Corps for a permit under the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., (sometimes herein referred to as the Act) and Section 404 of the Federal Water Pollu- tion Control Act Amendments of 1972, as amended, 33 U.S.C. § 1344, to construct a dike and dredged spoil disposal facility at Hart and Miller Islands in the Chesapeake Bay. The stated purpose of the dike and disposal area is to contain approximately fifty-two million cubic yards of dredge spoil to be removed from the Baltimore Harbor and its channel approaches. Hart and Miller Islands are located within Chesapeake Bay approximately thirteen miles east of Baltimore, Mary- land. The dike and containment area is to be constructed on the bayward (eastern) side of Hart and Miller Islands about one mile from the mainland and will occupy an area of 1,100 acres or approximately two square miles. The dike itself is to be constructed with sand which will be dredged from deposits within the disposal area. Construction is estimated to take two years. When the dike is completed, its walls will stand eighteen feet above mean low water, somewhat higher than the current maximum elevations of Hart and Miller Islands which are 5.5 feet and 2.3 feet, respectively. However, only twelve percent of Hart Island and fifty-two percent of Miller Island will be covered by the disposal area. Basic- ally, the disposal area will be rectangular in shape with the islands fitting in to the northwestern, longer side of the area and the structure occupying principally an area to the southeast of the islands. Dredged spoil will be transported to the disposal area by pumping the material through hydraulic pipelines either from the dredging sites in the Baltimore Harbor or from barges which will carry the dredged spoil from the dredging site to the disposal area. The dredged material will be 25a pumped into the diked containment area and the sand walls of the dike will allow the water to percolate out of the containment area, leaving only the dredged material inside of the containment area. Once the area has been completely filled with dredged spoil, the entire area will be at the height of eighteen feet above mean low water. As a means of protection against erosion on the bayward side of the structure, this side will be rip-rapped with stone, all other sides consisting of the sand constructed walls of the dike. At present, the expected life of the containment area is uncertain. If the area is used only for the disposal of dredg- ing spoil from maintenance dredging of the Baltimore Harbor and other shipping channels, the expected life of the area is twenty to thirty years. If the area is used to accommodate dredged material from the Baltimore Harbor Channel project, its life expectancy is ten years. The Balti- more Harbor Channel project is a project to deepen the Harbor and its channel approaches from the present depth of thirty-nine to forty-two feet to a depth of fifty feet in order to allow the entry of larger cargo vessels. Congress has authorized the funds for this project (Public Law 91- 611) provided the State of Maryland furnishes a disposal site for the dredged spoil from the project. It is estimated that the total dredged spoil from the project will amount to one hundred million cubic yards thus indicating that the Hart and Miller Islands project will accommodate, at best, only fifty percent of this spoil. After the filing of the application for a permit by the State of Maryland in February of 1972, the Corps began its consideration of the application with the permit finally being issued to the State on November 22, 1976. After initial review of the application, the Corps held a public hearing on August 29, 1972 and in February 1973, the Corps com- pleted its draft environmental impact statement. The initial evaluation of the application occurred in a report dated July 18, 1974 prepared by the District Engineer of the Baltimore District. A second public hearing was held on May 10, 1975 after the Corps had conducted additional 26a water quality analyses required under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. The Corps’ final environmental impact statement was completed in early 1976, this report being required pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. Upon completion of the impact statement, the District Engineer for the Baltimore District prepared a report on the application recommending issuance of the permit with the inclusion of certain conditions in the permit. This recommendation was concurred in by the Corps’ North Atlantic Division on March 8, 1976 and the final report was sent to the Corps’ headquarters in Washington for the final approval. Final approval was given in November 1976 and the State of Maryland was issued a permit for the diked disposal facility under 33 U.S.C. §§ 403 and 1344. The administrative record of the Corps’ consideration of the permit application is described in the Government’s Index to the Administrative Record filed with this court. However, the parties have agreed that the entire adminis- trative record need not be filed and the parties have sub- mitted those documents which they feel bear on the issues raised in the motions for summary judgment as exhibits to their motions. The court is at liberty to request that any additional documents be supplied should the court feel the need to examine additional documents in conjunction with the instant motions. The eleven counts of plaintiffs’ complaint cover numerous allegations having to do with the authority of the Corps to issue the permit and the administrative process undertaken by the Corps in determining that the permit should be granted. The claims of plaintiffs can be summarized as follows: Count one asserts that the Corps acted improperly in issuing the permit to the State of Maryland under Sec- tion 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, in that the particular project which was the subject of the permit could only be issued under Section 9 of the Act, 33 U.S.C. § 401. Section 9 requires that Congressional 27a approval of the project be obtained in addition to the issu- ance of a permit by the Corps. Plaintiffs assert in Counts two through eight that the Corps failed to evaluate ade- quately the integrity of the proposed construction project, the alternatives to the proposed structure, the probable adverse and cumulative impacts of the structure in the Hart and Miller Islands vicinity, local zoning and permit restrictions affecting the proposed project, and the mone- tary costs of the permitted project. Plaintiffs allege that the failure to consider these matters adequately is a viola- tion of the National Environmental Policy Act and the Corps’ regulations. Counts nine through eleven contain claims that the Corps acted arbitrarily, capriciously and in bad faith with respect to the environmental impact state- ment and the decision to grant the permit to the State. I. The Rivers and Harbors Act of 1899 The application of the State of Maryland for a permit to construct the diked disposal area at Hart and Miller Islands was filed and processed by the Corps under Section 10* of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403. 1 Section 10 of the Act provides: 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 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 author- ized 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. 28a Plaintiffs contend that the permit can be issued only under the authority of Section 9* of the Act, 33 U.S.C. $401, because the permit authorizes the construction of one or more dikes in navigable waters of the United States. In turn, plaintiffs assert that Section 9 requires Congressional authorization of the project and, as this has not been ob- tained, the permit is void as an overstepping of authority by the Corps. Defendants counter with the assertion that issuance of the permit pursuant to Section 10 of the Act was appropriate as that section does not require Congres- sional consent for the deposit of fill material or construc- tion of certain structures such as breakwaters, bulkheads and jetties in the navigable waters of the United States. Thus, the primary legal issue raised in the cross motions for summary judgment is whether the Corps has authority to permit the construction by the State of Maryland of a diked spoil disposal facility in navigable waters of the * Section 9 of the Act provides: It shall not be lawful to construct or commence the con- struction of any bridge, dam, dike, or causeway over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of the Army: Provided, That such structures may be built under authority of the legislature of a State across rivers and other waterways the navigable portions of which lie wholly within the limits of a single State, provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of the Army before construction is commenced: And provided further, That when plans for any bridge or other structure have been ap- proved by the Chief of Engineers and by the Secretary of the Army, it shall not be lawful to deviate from such plans either before or after completion of the structure unless the modifi- cation of said plans has previously been submitted to and received the approval of the Chief of Engineers and of the Seeretary of the Army. 29a United States by its action of issuing the permit on Novem- ber 22, 1976. All parties are agreed that the Chesapeake Bay, the body of water in which the proposed construction is to take place, is a navigable body of water. Further, the parties are agreed that the navigable portions of the Bay do not lie wholly within the limits of one state; rather, the Bay is shared by the State of Maryland and the Commonwealth of Virginia. Additionally, defendants have conceded that Congressional authorization of the project pursuant to Section 9 was not sought because of the position that such authorization was not required. It appears that what does remain for resolution on the issue of whether Section 9 is the appropriate section under which the diked disposal facility should be authorized are: (1) the question of whether the proposed facility in this case is a dike within the meaning of Section 9 (or whether portions of the facility come within the classification of a dike), and (2) the ques- tion of whether the dike, if one is found to be contemplated, is to be placed “over or in any ... navigable water of the United States.” The parties have presented many and varied arguments on the interpretations of Section 9 which they seek to have the court adopt. In order to respond to these arguments, the court has attempted to categorize these arguments in the following manner: (1) reported case law on the inter- pretation of Section 9, (2) history of section 9 and Section 10, and (3) the Corps’ past administrative practice with respect to the application of Sections 9 and 10. The Reported Case Law Turning first to the cases, the parties are in dispute over the applicability of cases which reach conflicting conclusions in interpreting Section 9 generally and particularly the term “dike.” The court has been cited to two district court decisions which appear to give conflicting definitions of the 30a term “dike.” Citizens Commitiee for ihe Hudson Valley v. Volpe, 302 F.Supp. 1083 (S.D. N.Y. 1969), affirmed, 425 F.2d 97 (2nd Cir. 1970); Petterson v. Resor, 331 F.Supp. 1302 (D.C. Oregon 1971), remanded as moot, 494 F.2d 124 (9th Cir. 1974). In Citizens Committee for the Hudson Valley, the Corps had issued a permit to the State of New York which per- mitted a fill operation for the purpose of constructing the Hudson River lxpressway. The permit had been issued pursuant to Section 10 of the Rivers and Harbors Act of 1899. The expressway was planned to extend approximately nine miles along the eastern shore of the Hudson River. Some 22,000 feet of the highway were to rest on 9,500,000 cubic yards of fill which would extend at its widest point some 1,300 feet into the river. The district court noted that the main issue between the parties was whether Section 9 should apply to the project, with plaintiffs contending that since the project involved dikes, causeways and bridges to be built in or over navigable waters of the United States, the Corps had exceeded its authority in issuing the permit pursuant to Section 10. In determining whether a dike was involved in the project, the court examined the permit itself, as well as the plans for the project, and found both to contain numerous references to “dikes.” The district court also noted that the plans prepared in connection with the securing of bids on the project illustrated and described various types of dikes to be included in the project. Defend- ants in that case countered with the argument that even if dikes were involved, Section 9 would not apply as the dikes would not have a substantial effect on navigation. Further, defendants argued that Congress meant the term “dike” in the Act of 1899 to be given the meaning stated in Chambers Technical Dictionary, p. 273 (3rd Rev. ed with Supp. 1958) which was as follows: “a wall or embankment of timber, stone, concrete, fascines, or other material, built as a training works for a river so as rigidly to confine flow within definite limits over the length treated.” From this 3la definition, the defendants supported their argument that a dike must substantially affect navigation before it will be one included within the meaning of that term in Section 9. district court concluded that dikes were contemplated in the project and that said dikes came within the meaning of the term as used in Section 9: \ We hold, based on the evidence presented at trial, that ‘dikes,’ characterized as such by the defendants, are to be constructed along the western side of the fill and that Congress when it said ‘any dike’ over or in any navigable river meant exactly that. Therefore, the Corps of Engineers exceeded its statutory authority in issuing the permit which enables the State to com- mence advertising for bids. In the absence of any legislative or judicial authority to support the defendants’ theory of statutory inter- pretation we apply the ordinary meaning to the term ‘any dike.’ Dike is defined as ‘[a] bank, as of earth, thrown up to form a barrier, line of demarcation or the like * * *.’ Webster’s New International Dictionary, 2d Kid., p. 730 (1954) ; ‘An embankment for controlling or holding back the waters of the sea or a river.’ Random House Dictionary of the English Language, p. 403 (1967). ‘Statutes are to be construed by attri- buting its ordinary meaning to the language used.’... Consequently, we hold that if Congress meant to confine its jurisdiction to only those dikes that sub- stantially affect navigation, it would have said so. Since proposed dikes are involved and will be ‘over or in’ a navigable river of the United States, we leave to Congress, when it decides if it will approve the project, the consideration of the effect of the dikes on naviga- tion. (citation omitted) 302 F.Supp. at 1088-1089. On appeal, the Second Circuit Court of Appeals briefly discussed the merits of the case and adopted the conclu- 32a sions of the district court with respect to the definition of the term dike: ... [t]he district court concluded that construction of both a ‘dike’ and a ‘causeway’ were contemplated by the State. The court was called upon to construe the meaning of those terms as they were used in $401 of the Rivers and Harbors Act of 1899, and as they ap- plied in fact to the Expressway plans before it. Having carefully reviewed the pertinent evidence and con- sidered the governing rules of statutory construction, we adopt the conclusion of the district court that the word ‘dike’ used by the defendants in their permit has the same meaning there as in §401 of the Act, and that construction of a dike is forbidden by that Section without the consent of Congress. 425 F.2d at 106. In Petterson v. Resor, supra, the district court determined that the approach of the court in Citizens Committee for the Hudson Valley of using the common dictionary defini- tion of the term “dike” was inappropriate in view of the legislative history of Sections 9 and 10 and the adminis- trative practice of the Corps. That case involved a permit issued by the Corps under Section 10 for the extension and relocation of an airport runway. Said extension was to occur on a fill to be constructed in the South Slough of the Columbia River. The construction of the fill involved the removal of all or portions of three islands by dredging and the placing of the dredged material in the fill area. The court noted: “These improvements will not affect the main channel or the navigability of the Columbia River which flows between Oregon and Washington. In fact, the improvements will increase the navigability of the river.” 331 F.Supp. at 1303. Although the court apparently relied upon the legislative history of Sections 9 and 10, the court does not indicate exactly which portions of the history were relied upon and doés not specifically refer to any 33a particular documents, Congressional or otherwise. The court merely states: Here, defendants presented the evidence of legisla- tive history and consistent administrative practice which was not before the court in Hudson Valley. This evidence supports the defendants’ contention that §401 requires Congressional consent for dikes only when they are obstructions to navigation. ... The legislative history shows that Congress enacted the Rivers and Harbors Appropriation Act of 1899, Ch. 425, 30 Stat. 1121, as a comprehensive plan for keeping our interstate waterways clear of unreasonable obstructions and structures. It required approval of the federal government for work on navigable inter- state waterways. Every structure built in a navigable waterway required the approval of the Chief of Engi- neers and the Secretary of the War (now the Secretary of the Army). In addition, for those structures like bridges, dams and dikes, usually larger structures, which are placed across a river and which constitute an obstruction to navigation, Congressional consent was required. This distinction was written into the law, apparently because of the belief that Congress could not constitutionally delegate to the Secretary of War or to any other agency the authority to permit an obstruction of a navigable waterway. United States v. Keokuk & H. Bridge Co., 45 F. 178 (S.D. Iowa 1891). (emphasis supplied) 331 F.Supp. at 1306. Additionally, the court looked to various examples of other projects which hud been permitted by the Corps under Section 10 and which were projects involving the extension of airport runways. The court found that the mere desig- nation of a project as a “dike” was not determinative “if the proposed improvement did not obstruct navigation.” 331 F.Supp. at 1306. 34a On appeal, Petterson was remanded to the district court to vacate the previous judgment and to enter a judgment of dismissal of the action as moot. 494 F.2d 124 (9th Cir. 1974) Plaintiffs argue that the entry of a judgment of dis- missal as moot relegates the opinion of the district court to an advisory status because the term “moot” indicates that the point remains undecided. Because the jurisdiction of the federal courts requires that a case or controversy exist in fact, it has been the practice of the Supreme Court in a case which has become moot pending final decision to remand with directions to dismiss the action. See United States v. Munsingwear, 340 U.S. 36 (1950). The rationale of this procedure applies with equal force to a remand from a court of appeals with directions to dismiss and was aptly stated by the Supreme Court as follows: That procedure clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through hap- penstance. When that procedure is followed, the rights of all parties are preserved; none is prejudiced by a decision which in the statutory scheme was only pre- liminary. 340 U.S. at 40. Thus, the decision in Petterson must be viewed by this court as a preliminary decision which has not undergone the review sought by the side losing the case in the district court. As such, this court will consider the opinion as carrying only advisory weight on the issues presented in the instant action. The court also notes that if it were to accept the reason- ing of the district court’s opinion in Petterson, that case is clearly distinguishable on the facts as the district court stated that the improvements to the airport in that case in no way obstructed navigation on the Columbia River but rather would enhance such navigation, apparently because all or portions of three small islands in the river were to 35a be removed by dredging to construct fill for a runway extension. In the present case it cannot be said that the ' dike and the large impoundment area in the bay created by it will enhance the navigability of the bay. The court has been cited to an additional case which dealt with the application of Section 9 to a structure deemed to be a dike within the meaning of that section. Sierra Club v. Morton, 400 F.Supp. 610 (N.D. Calif. 1975). In the Sierra Club case a canal was to be built which would result in the damning of the river at the point where the canal would cross the river. The court adopted the reasoning of Citizens Committee for the Hudson Valley in applying the ordinary meaning of the words “dike” and “dam” and in finding that a structure covered by Section 9 was involved. The court noted: Such a closure of the Middle River will constitute the building of a “dike” within the meaning of Section 9. In Citizens Committee for the Hudson Valley v. Volpe, .. . the court held that the word ‘dike’ should be de- fined in accordance with its ordinary meaning. The court found that dike meant, inter alia, ‘[a]n embank- ment for controlling or holding back the waters of the sea or a river.’... The Court notes that ‘dam’ is de- fined as “a barrier preventing the flow of water”.... Hence, even though the closure of Middle River will be caused by a structure denoted as a ‘canal’, because the structure will have the effect of a ‘dam’ or ‘dike’, the Court finds that the Peripheral Canal is the type of structure regulated by Section 9. Because the Periph- eral Canal will clearly be ‘in’ the Middle River, the only issue remaining is whether Section 9 prohibits any dikes or only those dikes which obstruct naviga- tion. Although the legislative intent underlying the en- actment of Section 9 may well have been to prohibit unreasonable obstructions to navigable waters, it seems likely that Congress used the word ‘any’ in Section 9 in 3€a order to reserve the right to determine whether a given structure created an unreasonable obstruction. Be- cause the Peripheral Canal will obstruct navigation on the Middle River, however, either construction of Section 9 will include the Canal within the section’s regulatory prohibitions. (citations omitted) 400 F. Supp. at 626-627. It would appear that the court in Sierra Club recognized the possibility that a two step process would have to be undertaken in a Section 9 inquiry: (1) does the structure fall within the ordinary definition to be given to the term “dam” or “dike”, and (2) does this “dam” or “dike’’ ob- struct navigation. The court found the consent of Congress was required because the court considered that either (1) the structure was a dam or dike, or (2) the structure was a dam or dike and was an obstruction to navigation. The court in Sierra Club did not make a finding as to whether the structure was an unreasonable obstruction to naviga- tion, an inquiry the court thought the statute reserved to the Congress. To summarize the three cases discussed above, Citizens Committee for the Hudson Valley found that Section 9 applies to any structure coming within the ordinary mean- ing of the word “dike” and left to Congress the determi- nation of whether there was an obstruction to navigation, unreasonable or not. Petterson is an advisory view that Congressional consent is required only when a dike is an obstruction to navigation, while Sierra Club accepted the premise that the ordinary meaning should be given to the term “dike” and did not decide whether Section 9 applied to any dike or only those which constituted an obstruction to navigation, finding that either construction of Section 9 applied in that case as the structure contemplated was a dike and was an obstruction to navigation. 37a Two decisions of the Supreme Court support the court’s view that Congress has specified the structures over which it retains control, that a dike is one such structure, and that the general purpose of Section 9 was to exercise con- trol over obstructions to navigation, leaving to Congress the determination of which obstructions will be allowed and which prohibited. This determination is delegated to the Corps of Engineers as to cases enumerated in the second and third clauses of Section 10 but is reserved to the Con- gress as to those structures described in Section 9. Thus, in Wisconsin v. Illinois, 278 U.S. 367 (1929), the court speaking through Chief Justice Taft stated: Congress, having stated in Section 9 as to what par- ticular structures its specific consent should be re- quired, intended to leave to the Secretary of War, act- ing on the recommendation of the Chief of Engineers, the determination of what should be approved and authorized in the class of cases described in the second and third clauses of Section 10. If the section were construed to require a special authorization by Con- gress whenever in any aspect it might be considered that there was an obstruction to navigable capacity, none of the undertakings specifically provided for in the second and third clauses of Section 10 could safely be undertaken without a special authorization of Con- gress. We do not think this was intended. . . The true intent of the Act of Congress was that un- reasonable obstructions to navigation and navigable capacity were to be prohibited, and in the cases de- scribed in the second and third clauses of Section 10, the Secretary of War, acting on the recommendation of the Chief of Engineers, was authorized to deter- mine what in the particular cases constituted an un- reasonable obstruction. Id. at p. 412-413 38a In United States v. Arizona, 295 U.S. 174 (1935), the court dealing with Section 9 stated: Subject to an exception with which we have no con- cern, Sec. 9 of the Act of March 3, 1899 forbids the construction of any bridge, dam, dike, or causeway over or in any port, roadstead, haven, harbor, canal, navigable river or other navigable water of the United States until the consent of Congress shall have been obtained and until the plans shall have been submitted to and approved by the Chief of Engineers and by the Secretary of War. 33 U.S.C. Sec. 401. And Sec. 12 makes violations of Section 9 punishable by fine or imprisonment or both and provides for removal of un- authorized structures. 33 U.S.C. Sec. 406. These provi- sions unmistakably disclose definite intention on the part of Congress effectively to safeguard rivers and other navigable waters against the unauthorized erec- tion therein of dams or other structures for any pur- pose whatsoever. Id. at p. 183-184 In the light of this review of cases construing the Act, the court in the present case concludes that it should first determine whether the proposed structure is a dike within the ordinary meaning of the term, If the structure is found to come within this meaning, the court should then consider whether the dike, if constructed, would constitute an ob- struction to navigation. If the structure is found to be a dike which is an obstruction to navigation, it then be- comes the exclusive province of the Congress to determine whether the obstruction is unreasonable and approval of the project should be denied, or whether the obstruction is reasonable and approval should be granted. yf" 39a Is the Structure a Dike? Citizens Committee for the Hudson Valley v. Volpe, 302 F.Supp. 1083 (S.D. N.Y. 1969) teaches that the word “dike” is to be given its ordinary meaning in construing Section 9. Dike is defined as “[a] bank, as of earth, thrown up to form a barrier, line of demarcation or the like * * *” Web- ster’s New International Dictionary, 2nd Ed., p. 730 (1954), “An embankment for controlling or holding back the waters of the sea or a river.” Random House Dictionary of the English Language, p. 403 (1967). The State of Maryland in its application for a permit (A.R.D. 11)* stated “We request a permit for the construc- tion of a diked disposal area for the dredged spoil to be built as shown on the attached plans in the Chesapeake Bay in the vicinity of Hart and Miller Islands.” The per- mit finally issued on November 22, 1976 (Exhibit 1 to the Complaint) authorizes the State of Maryland to construct “a diked disposal area to contain dredged material on approximately 1,100 acres adjacent to Hart and Miller Islands” in accordance with attached plans and drawings titled “Proposed Dredging and Dik [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0294%3A1. Public record. Not legal advice.