The opinion of the court was delivered by: MUNSON
Presently before the court are four motions which defendants have filed. Each of these motions seeks to dismiss certain counts of the Indictment. The first motion seeks to dismiss Counts 2-31 for unlawful delegation of permitting authority. The second seeks to dismiss Counts 14-19. The third seeks to dismiss Counts 2-13 and 26-31 for lack of authority to enforce criminally the provisions of Appendices C and D to the Final Environmental Impact Statement ("FEIS"). Finally, the fourth motion seeks to dismiss Counts 2-13 and 20-31 as beyond the substantive regulatory authority of the Corps of Engineers under § 404 of the Clean Water Act, 33 U.S.C. § 1344 ("CWA"). The government opposes these motions in their entirety.
On January 22 and 23, 1998, the court heard oral argument in support of, and in opposition to, these motions and reserved decision. The following constitutes the court's resolution of these motions.
I. Motion to Dismiss Counts 2-31 of the Indictment for Unlawful Delegation of Permitting Authority
Resolution of this motion turns on the issue of whether in enacting § 404 of the CWA Congress intended to permit the Chief of Engineers to subdelegate his statutory authority to issue permits for the discharge of dredged or fill material into the navigable waters of the United States to his District Engineers. Defendants contend that § 404 unambiguously and specifically provides for the Secretary of the Army ("the Secretary") to delegate his authority to issue § 404 permits only to the Chief of Engineers and that, therefore, no further delegation is permitted. To the contrary, the government argues that because § 404 does not specifically proscribe subdelegation of the Secretary's authority to issue § 404 permits, Congress intended that the Chief of Engineers could subdelegate this authority to his District Engineers.
Pursuant to the familiar two-step analysis in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), a court called upon to review an agency's construction of a statute it administers is confronted with two questions. "First, always, is the question whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S. Ct. at 2781. As the Court stated in Chevron, "if the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S. Ct. at 2781 (footnote omitted).
If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.
Id. at 843, 104 S. Ct. at 2781-82 (footnote omitted).
With the Chevron test as a guide, the court will address the parties' arguments with respect to the meaning of § 404. As the court is required to do, it will begin its inquiry with the language of the statute itself.
There are two paragraphs of § 404 that are relevant to the court's determination of whom Congress authorized to issue § 404 permits. First, § 404(a) specifically grants the authority to issue permits for the discharge of dredged or fill material to the Secretary. 33 U.S.C. § 1344(a) ("The Secretary may issue permits . . . for the discharge of dredged or fill material into the navigable waters at specified disposal sites."). Second, § 404(d) defines the term "Secretary" to mean "the Secretary of the Army, acting through the Chief of Engineers." 33 U.S.C. § 1344(d). Based upon this language, defendants argue that Congress expressly vested the authority to issue § 404 permits in the Secretary of the Army or his statutorily-identified delegee, the Chief of Engineers. It therefore follows, according to defendants, that because § 1319(c) punishes violations of "any requirement . . . in a permit issued under section 1344 of this title by the Secretary of the Army. . .", 33 U.S.C. § 1319(c)(2)(A) (1986 & 1997 Supp.) (emphasis added), they may not be punished for violating a requirement of the Iroquois Permit which was issued by the New York District Engineer, rather than the Chief of Engineers.
Even a cursory reading of § 404 establishes that this statute clearly authorizes only the Secretary acting through the Chief of Engineers to issue permits for the discharge of dredged or fill material into the navigable waters of the United States. However, it is also clear that this statute does not explicitly proscribe the subdelegation of this authority by the Chief of. Engineers to his District Engineers.
In support of their argument that the Chief of Engineers may not subdelegate his § 404 permitting authority, given Congress' explicit designation of the Chief of Engineers as the Secretary's delegee, defendants rely upon the Supreme Court's decisions in Cudahy Packing Co. of Louisiana v. Holland, 315 U.S. 357, 62 S. Ct. 651, 86 L. Ed. 895 (1942), and United States v. Giordano, 416 U.S. 505, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974), as well as the recent decisions of the Second and District of Columbia Circuits. See United States v. Workman, 110 F.3d 915 (2d Cir. 1997); Halverson v. Slater, 327 U.S. App. D.C. 97, 129 F.3d 180 (D.C. Cir. 1997).
The issue in Cudahy Packing was whether under the Fair Labor Standards Act ("FLSA"), the Administrator of the Wage and Hour Division of the Department of Labor had the authority to delegate his statutory power to sign and issue subpoenas duces tecum. The FLSA itself did not define the Administrator's power to issue. subpoenas nor did it specifically authorize him to delegate this power to others. However, § 9 of the FLSA gave the Administrator "all the powers with respect to subpoenas which are conferred upon the Federal Trade Commission, [by the Federal Trade Commission Act] and no more." Id. at 360, 62 S. Ct. at 653. The Trade Commission Act permitted, inter alia, the Commission to require the production of documents by subpoena and provided that any member of the Commission could sign the subpoenas. See id.
In Cudahy Packing, the Administrator argued that § 4(c) of the FLSA gave him the authority to delegate to regional directors the signing and issuance of subpoenas. Id. at 360, 62 S. Ct. at 653. Section 4(c) provided that "the principal office of the Administrator shall be in the District of Columbia, but he or his duly authorized representative may exercise any or all of his powers in any place." See id. The Court rejected this argument, stating that "[a] construction of the [FLSA] which would thus permit the Administrator to delegate all his duties, including those involving administrative judgment and discretion which the [FLSA] has in terms given only to him, can hardly be accepted unless plainly required by its words." Id. at 361, 62 S. Ct. at 654. The Court went on to explain that "the words of . . . section , read in their statutory setting, make it reasonably plain that its only function is to provide that the Administrator and his representatives may exercise either within or without the District of Columbia such powers as each possesses." Id. at 361-62, 62 S. Ct. at 654.
Alternatively, the Administrator argued that his authority to delegate his subpoena power should be inferred from the nature of his duties and from the fact that under § 11 of the FLSA he could, through designated representatives, gather data and make investigations authorized by the FLSA. See id. at 363, 62 S. Ct. at 654. The Court also rejected this argument, finding that "this argument loses force when examined in the light of related provisions of the [FLSA] and of the actual course of Congressional legislation in this field." Id. at 363, 62 S. Ct. at 655. The Court explained that "the grant of authority to delegate the power of inspection and the omission of authority to delegate the subpoena power shows a legislative intention to withhold the latter." Id. at 364, 62 S. Ct. at 655. The Court also stated that "the entire history of the legislation controlling the use of subpoenas by administrative officers indicates a Congressional purpose not to authorize by implication the delegation of the subpoena power." Id. at 364, 62 S. Ct. at 655. Moreover, the Court recognized that "Congress, in numerous cases, has specifically authorized delegation of the subpoena power . . . or it has granted the power to particularly designated subordinate officers or agents, thus negativing any implied power in the head to delegate generally to subordinates." Id. at 365, 62 S. Ct. at 655-56 (footnotes omitted). Finally, the Court noted that the authority to delegate the subpoena power had been eliminated by the Conference Committee from the bills each House had adopted. See id. at 366, 62 S. Ct. at 656.
Based upon this review of the FLSA itself as well as its legislative history, the Court held that
even though Congress has underestimated the burden which it has placed upon the Administrator, which is by no means clear, we think that the legislative record establishes that Congress has withheld from him authority to delegate the exercise of the subpoena power, and that this precludes our restoring it by construction.
Id. at 367, 62 S. Ct. at 656-57.
Some thirty years later, the Supreme Court once again addressed the delegation of statutory authority in Giordano. In that case, the Court was called upon to interpret Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, which prescribes the procedure for securing judicial authority to intercept wire communications in the investigation of specified serious offenses. In particular, the Court had to decide whether the provision of 18 U.S.C. § 2516(1) which conferred power upon the
"Attorney General, or any Assistant Attorney General specifically designated by the Attorney General" to "authorize an application to a Federal judge . . . for . . . an order authorizing or approving the interception of wire or oral communications" by federal investigative agencies seeking evidence of certain designated offenses permits the Attorney General's Executive Assistant to validly authorize a wiretap application to be made.
416 U.S. at 507-08, 94 S. Ct. at 1823.
On appeal, the government argued that the authorization of intercept applications by the Attorney General's Executive Assistant was not inconsistent with § 2516(1) and that, even if it were, there was no constitutional violation and therefore the district court should not have ordered the wiretap and derivative evidence suppressed.
The Court disagreed with both these contentions. Turning to the language of the statute to determine if it permitted the authorization of wiretap applications by the Attorney General's Executive Assistant, the Court found that "plainly enough, the Executive Assistant is neither the Attorney General nor a specially designated Assistant Attorney General; . . ." Id. at 513, 94 S. Ct. at 1825.
Nevertheless, despite the unambiguous language of § 2516(1) with regard to those who could authorize an intercept application, the government urged that 28 U.S.C. § 509
Id. at 513, 94 S. Ct. at 1825-26.
Based upon this language, the government argued that "merely vesting a duty in the Attorney General, . . . evinces no intention whatsoever to preclude delegation to other officers in the Department of Justice, including those on the Attorney General's own staff." Id. at 513, 94 S. Ct. at 1826.
The Court noted that as a general proposition the government's argument was not exceptional. However, it found the case sub judice to be distinguishable because "the matter of delegation is expressly addressed by § 2516, and the power of the Attorney General in this respect is specifically limited to delegating his authority to 'any Assistant Attorney General specially designated by the Attorney General.'" Id. at 514, 94 S. Ct. at 1826. Although in reaching this conclusion the Court conceded that precise language forbidding delegation was not used in § 2516, as it was in other statutes,
it nonetheless concluded that "§ 2516(1), fairly read, was intended to limit the power to authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate." Id. at 514, 94 S. Ct. at 1826.
The Court went on to explain that its interpretation of the statute was strongly supported by its purpose and legislative history. See id. at 514, 94 S. Ct. at 1826. Looking at that legislative history, the Court noted that at hearings on the bill which eventually became § 2516 the Assistant Attorneys General in charge of the Criminal Division of the Department of Justice stated the Department's view that the authority to approve applications should be limited so that the Attorney General could delegate his authority only to an Assistant Attorney General. See id. at 516, 94 S. Ct. at 1827. In addition, the Court found the Senate Judiciary Committee's report on the bill particularly significant because "it not only recognizes that the authority to apply for court orders is to be narrowly confined but also declares that it is to be limited to those responsive to the political process, a category to which the Executive Assistant to the Attorney General obviously does not belong." Id. at 520, 94 S. Ct. at 1829 (footnote omitted).
Moreover, the Court found that during the proceedings leading to the passage of the Senate bill, emphasis was placed on § 2516. The Court noted that during these discussions, "it was made clear that as the bill was drafted no United States Attorney would have or could be given the authority to apply for an intercept order without the advance approval of a senior officer in the Department." Id. at 521, 94 S. Ct. at 1829 (footnote omitted). Finally, the Court determined that "there was no congressional attempt, . . ., to extend that authority beyond the Attorney General or his Assistant Attorney General designate." Id. at 522, 94 S. Ct. at 1829-30. Based upon its review of this legislative history, the Court concluded that "it appears wholly at odds with the scheme and history of the Act to construe § 2516(1) to permit the Attorney General to delegate his authority at will, whether it be to his Executive Assistant or to any officer in the Department other than an Assistant Attorney General." Id. at 523, 94 S. Ct. at 1830 (footnote omitted).
In support of this proposition, the government relies upon Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 67 S. Ct. 1129, 91 L. Ed. 1375 (1947), and Rodriguez v. Compass Shipping Co. Ltd., 617 F.2d 955 (2d Cir. 1980), aff'd on other grounds, 451 U.S. 596, 101 S. Ct. 1945, 68 L. Ed. 2d 472 (1981). In Fleming, the Court addressed the question of whether the Emergency Price Control Act ("the Act") authorized the Administrator to delegate his authority to sign and issue subpoenas to the district directors. Section 201(a) of the Act provides, in pertinent part, that "'the Administrator, may subject to the civil-service laws, appoint such employees as he deems necessary in order to carry out his functions and duties under this Act, and shall fix their compensation in accordance with the Classification Act of 1923, as amended.'" Id. at 120, 67 S. Ct. at 1134 (quoting § 201 of the Emergency Price Control Act). Furthermore, § 201(b) of the Act provides that "'the principal office of the Administrator shall be in the District of Columbia, but he or any duly authorized representative may exercise any or all of his powers in any place.'" Id. (quoting § 201(b) of the Emergency Price Control Act).
The Court began its analysis by recognizing that in Cudahy Packing it had held that a provision identical to § 201(b) did not authorize the Administrator to delegate his power to sign and issue subpoenas. Nevertheless, it found that Cudahy Packing did not control the case sub judice. The Court reached this conclusion based upon the differences in the legislative histories of the two Acts. First of all, it noted that the legislative history of the FLSA demonstrated that a provision granting authority to delegate the subpoena power had been eliminated when the bill was in Conference. See id. at 120, 67 S. Ct. at 1134. To the contrary, in reporting the bill that became the Emergency Price Control Act, the Senate Committee described § 201(a) as authorizing the Administrator to "'perform his duties through such employees or agencies by delegating to them any of the powers given to him by the bill[,]'" and the Committee stated that § 201(b) authorized the Administrator or "'any representative or other agency to whom he may delegate any or all of his powers, to exercise such powers in any place.'" Id. at 120-21, 67 S. Ct. at 1134 (quoting S. Rep. No. 931, 77th Cong., 2d Sess., pp. 20, 21).
Moreover, the Court pointed out that in Cudahy Packing, "the [FLSA] made expressly delegable the power to gather data and make investigations, thus lending support to the view that when Congress desired to give authority to delegate, it said so explicitly." Id. at 121, 67 S. Ct. at 1134. To the contrary, the Court found that "in the present Act, there is no provision which specifically authorizes delegation as to a particular function." Id. at 121, 67 S. Ct. at 1134. The Court also noted that the FLSA made applicable to the powers and duties of the Administrator the subpoena provisions of the Federal Trade Commission Act which only authorized either the Commission or its individual members to sign subpoenas, whereas "the subpoena power under the present Act is found in § 202(b) and is not dependent on the provision of another Act having a history of its own." Id. at 121, 67 S. Ct. at 1134.
Finally, the Court distinguished the FLSA from the Emergency Price Control Act on the grounds that although the former granted no broad rule-making power, the latter provided that "'the Administrator may, from time to time, issue such regulations and orders as he may deem necessary or proper in order to carry out the purposes and provisions of this Act.'" Id. at 121, 67 S. Ct. at 1134 (quoting § 201(d) of the Emergency Price Control Act). The Court explained further that "such a rule-making power may itself be an adequate source of authority to delegate a particular function, unless by express provision of the Act or by implication it has been withheld." Id. at 121, 67 S. Ct. at 1134 (citation omitted). The Court found that no provision in the Emergency Price Control Act negated the existence of such rule-making authority so far as the subpoena power was concerned nor could the absence of such authority be fairly inferred from the history and content of the Act. Therefore, the Court held that "the presence of the rule-making power, together with the other factors differentiating this case from the Cudahy case, indicates that the authority granted by § 201(a) and (b) should not be read restrictively." Id. at 122, 67 S. Ct. at 1134.
In the other case upon which the government relies, the Second Circuit was called upon to interpret § 33(b) of the Longshoremen's and Harbor Workers' Compensation Act ("the Act"). This statute provides that
(b) Acceptance of (statutorily fixed) compensation under an award in a compensation order filed by the deputy commissioner or (Benefits Review) Board shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award.
Rodriguez, 617 F.2d at 956 (quoting 33 U.S.C. § 933(b)). The plaintiff in Rodriguez contended that because his claim under the Act was not the subject of a formal compensation order filed by the deputy commissioner or the Board no assignment occurred and therefore his action was neither precluded nor time-barred. See id.
The facts in Rodriguez were as follows. After sustaining an injury while unloading a ship, the plaintiff, pursuant to § 5(b) of the Act, filed a workmen's compensation claim against his employer with the Office of Workers' Compensation Programs ("OWCP"), United States Department of Labor. Under regulations implementing the Act, a claims examiner employed by the Department of Labor convened an informal conference. At the conference, the plaintiff and his employer reached an agreement settling the claim which was memorialized in a written agreement dated November 4, 1974, on an OWCP form regularly used for that purpose. Title 20 C.F.R. § 702.315 requires the employer to commence paying the compensation benefits immediately without regard to whether the deputy commissioner, acting personally or through his designee, has filed a formal compensation order. Although he was required to do so, neither the deputy commissioner nor his designee ever filed or mailed a formal compensation order.
The Second Circuit first addressed the question of whether the settlement agreement amounted legally to an "award in a compensation order" of the deputy commissioner or Workmen's Compensation Board within the meaning of § 33(b). Although the plaintiff argued that the award must be approved by the deputy commissioner and that a claims examiner would not suffice, the court disagreed.
The court began its analysis by looking at § 39(a) of the Act which empowered the Secretary of Labor to make such rules and regulations "'as may be necessary in the administration of this chapter.'" Id. at 958 (quoting 33 U.S.C. § 939(a)). In addition to noting that almost identical language had been construed by the Supreme Court in Fleming to permit an official to delegate duties, the Second Circuit found that "it is generally accepted in this day and age that a governmental administrator vested with such authority may delegate unless expressly forbidden by statute or by the inconsistency of such a delegation with the purposes of the statute." Id. at 958 (citation omitted). The court reasoned that without such power directors or deputy directors of large divisions of government departments would be hampered in the performance of their duties. See id. Moreover, based upon its finding that "nothing in the history of the statute indicates that Congress' purpose was to insure the exercise of the personal discretion of the deputy commissioner as distinguished from that of a duly qualified designee[,]" the court held that "under the regulations in effect at the relevant time, an agreement settling an injured employee's claim to workmen's compensation, signed after an informal conference with a claims examiner, by whom it was approved, constitutes an 'award' within the meaning of § 33(b)." Id. at 959 (footnote omitted).
The government attempts to overcome the CWA's lack of a general rule-making provision by relying upon 10 U.S.C. § 3013(g)(3) which is almost identical to the provision relied upon by the Court in Fleming to distinguish that case from Cudahy Packing. Section 3013(g) (3) provides that the Secretary of the Army may "prescribe regulations to carry out his functions, powers, and duties under this title." 10 U.S.C. § 3013(g)(3) (1959 & 1997 Supp.). The problem with the government's reliance upon § 3013(g), however, is that by its very terms this provision limits its reach to the Secretary's functions, powers and duties under Title 10. There is nothing in § 3013(g) which suggests that Congress intended this provision to apply to any functions, powers, or duties the Secretary might have under any other Title, including Title 33. The government's argument is compromised further by § 3013(f) which specifically limits the delegation power of the Secretary to the Under Secretary of the Army and to the Assistant Secretaries of the Army. 10 U.S.C. § 3013(f) (1959 & 1997 Supp.).
In addition, as defendants point out, when Congress grants the power to delegate to the Secretary outside of Title 10, it typically provides for the specific subdelegation authority it intends the Secretary to have. For example, § 578(d) of Title 33 provides that "the Secretary of the Army may delegate any authority conferred upon him by this section to any officer or employee of the Department of the Army. Any such officer or employee shall exercise the authority so delegated under rules and regulations approved by the Secretary." 33 U.S.C. § 578(d); see also 16 U.S.C. § 460i (identical language). These statutes, further support the conclusion that Congress knows how to authorize delegation by the Secretary of the Army if that is, in fact, its intention.
Joseph G. Moretti, Inc. v. Hoffman, 526 F.2d 1311 (5th Cir. 1976), upon which the government relies for the proposition that ordinarily Congress intends the duties delegated to the Secretary to be subdelegable does not require a different result. In that case, the Secretary of the Army, relying upon 10 U.S.C. § 3012 which permitted him to assign, detail, and prescribe the duties of members of the Army, had authorized "'the Chief of Engineers and his authorized representatives to issue or deny permits for construction or other work affecting navigable waters of the United States.'" Id. at 1312 (quoting 33 C.F.R. § 209.120 App. D. p. 340). The court found that "this delegation of discretionary authority by the Secretary is well within his statutory power." Id. This statement, however, is of little value to the government because it is clearly dicta. The issue before the Fifth Circuit was whether the Secretary could delegate his discretionary authority with regard to § 404 permits to the Chief of Engineers. To answer this question, the court had no need to look any further than the language of § 404 itself which clearly authorizes the Chief of Engineers to issue such permits.
Finally, the recent decision in Halverson v. Slater, 327 U.S. App. D.C. 97, 129 F.3d 180 (D.C. Cir. 1997), which addresses the issue of delegation, further demonstrates that Giordano and Cudahy Packing, rather than Fleming, control the outcome of this case. The issue on appeal in Halverson was the authority of the Secretary of the Department of Transportation ("the Secretary") to designate certain responsibilities under the Great Lakes Pilotage Act of 1960, 46 U.S.C. §§ 9301 et seq. ("GLPA"), to the Saint Lawrence Seaway Development Corporation ("Corporation"). The appellants challenged the Secretary's delegation of GLPA responsibilities to the Corporation on several grounds including that the delegation exceeded the Secretary's authority under 46 U.S.C. § 2104(a). To the contrary, the Secretary argued that the delegation to the Corporation was proper under 49 U.S.C. § 322(b).
Relying upon the first step of the Chevron analysis, the court concluded that "the plain meaning of section 2104(a) limits delegation of GLPA functions to the United States Coast Guard and that section 322(b) cannot fairly be construed to expand the limitation." Halverson, 129 F.3d at 181 (citation omitted). The court began its analysis by looking at the language of, and the relationship between, the two statutes at issue. First, § 2104(a) provides that "the Secretary may delegate the duties and powers conferred by this subtitle (Subtitle II entitled 'Vessels and Seamen') to any officer, employee, or member of the Coast Guard, and may provide for the subdelegation of those duties and powers." 46 U.S.C. § 2104(a). Section 322(b), in turn, provides, in pertinent part, that "the [Transportation] Secretary may delegate, and authorize successive delegations of, duties and powers of the Secretary to an officer or employee of the Department." 49 U.S.C. § 322(b).
The appellants argued that § 2104(a) unambiguously proscribed delegation of GLPA responsibilities outside the Coast Guard and thwarted the Secretary's attempt to delegate these responsibilities pursuant to his general § 322(b) authority. Id. at 184. To the contrary, the Secretary argued, similarly to the government in the present case, that because § 2104(a) did not expressly proscribe a § 322(b) delegation, the Secretary could delegate his Subtitle II powers and duties pursuant to § 322(b). Id.
The court found that the Secretary's interpretation of 2104(a) ran afoul of the cardinal rule of statutory construction that "'we must read the statutes to give effect to each if we can do so while preserving their sense and purpose.'" Id. at 185 (quoting Watt v. Alaska, 451 U.S. 259, 267, 101 S. Ct. 1673, 1678, 68 L. Ed. 2d 80 (1981)) (other citation omitted). The court concluded that the Secretary's reading of § 2104(a) was that it provided no delegation authority beyond what the Secretary already possessed under § 322(b). Such a reading, explained the court, "violates the familiar doctrine that the Congress cannot be presumed to do a futile thing." Id. (citations omitted).
In addition, the court found that the Secretary's view of 2104(a) was irreconcilable with the canon of statutory construction, expressio unius est exclusio alterius ; i.e., "'the mention of one thing implies the exclusion of the other.'" Id. (quoting Ethyl, 311 U.S. App. D.C. 163, 51 F.3d 1053 at 1061 (internal quotation omitted)). In this regard, the court concluded that it could not disregard the fact that § 2104(a) authorizes delegations to Coast Guard officials only. Id. The court recognized that
according to the expressio unius canon, the Congress, in drafting section 2104(a) this way, intended to exclude delegations to non-Coast Guard officials. And to the extent section 2104(a) may be deemed to conflict with section 322(b) (itself a disfavored construction, . . .), the former as the more specific provision controls, again according to the traditional tools of statutory construction.
129 F.3d at 185-86 (citations omitted) (footnote omitted).
The court also rejected the Secretary's argument that because Congress did not expressly prohibit delegation of Subtitle II powers and duties to a non-Coast Guard official in § 2104(a), but did so proscribe elsewhere, this omission indicated a legislative intent not to disallow such delegation. Among the reasons for rejecting this assertion, the court found that
Most significantly, "to suggest, . . . that Chevron step two is implicated any time a statute does not expressly negate the existence of a claimed administrative power (i.e. when the statute is not written in 'thou shalt not' terms), is both flatly unfaithful to the principles of administrative law . . . and refuted by precedent. . . . Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely with the Constitution as well.
Id. at 186-87 (quoting Railway Labor Executives' Ass'n v. National Mediation Bd., 308 U.S. App. D.C. 9, 29 F.3d 655, 671 (D.C. Cir. 1994), cert. denied, 514 U.S. 1032, 115 S. Ct. 1392, 131 L. Ed. 2d 243 (1995)) (other citations omitted).
Like the provisions at issue in Giordano, Cudahy Packing, and Halverson, § 404's language manifests Congress' intent to limit the individuals to whom the Secretary may delegate his permit issuing authority to the Chief of Engineers. Conversely, unlike the provisions at issue in Fleming and Rodriguez, § 404 is neither silent on the issue of delegation nor does the CWA contain a general rule-making provision applicable to the Secretary.
If these reasons were not sufficient to render the government's arguments in favor of its interpretation of § 404 unsupportable, the familiar canons of construction set forth in Halverson clearly indicate that § 404 must be construed to limit the Secretary's delegation power with respect to his authority to issue permits under this section. First of all, under the principle of expressio unius est exclusio alterius, the court cannot ignore the fact that § 404 authorizes delegation to the Chief of Engineers only. Moreover, to the extent that § 404 may be deemed to conflict with 10 U.S.C. § 3013(g), and the court sees no such conflict, § 404 as the more specific provision controls. Finally, the fact that § 404 does not expressly proscribe the Chief of Engineers from subdelegating his permit issuing authority to the District Engineers is of no moment. The absence of such an express proscription does not provide the court with a license to ignore the proscription necessarily implied by the explicit limiting language of § 404. See Halverson, 129 F.3d at 187.
Accordingly, under step one of the Chevron analysis, the court concludes that the language of § 404 unambiguously demonstrates that Congress intended to limit the Secretary's delegation authority to the Chief of Engineers. In other words, any further subdelegation of the Secretary's § 404 permit issuing authority is inconsistent with the plain language of the statute and cannot be countenanced because the Secretary "must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. 837 at 843, 104 S. Ct. at 2781.
The government attempts to overcome the plain meaning of § 404 by reference to the legislative history of the CWA. As the court noted in Halverson, "ordinarily [the court] has no need to refer to legislative history at Chevron step one, . . .". Halverson, 129 F.3d at 187 n. 10. However, because "'reference to statutory design and pertinent legislative history may often shed some new light on congressional intent, notwithstanding statutory language that appears superficially clear[,]'" Halverson, 129 F.3d at 187 n. 10 (quoting NRDC, 313 U.S. App. D.C. 37, 57 F.3d 1122 at 1127 (internal quotation marks omitted)) (other citation omitted), and because the government argues that reading § 404 to deny the Chief of Engineers the authority to subdelegate his authority ...