United States v. John Pozsgai, Gizella Pozsgai, Mercer Wrecking & Recycling Corporation, J. Vinch & Sons, Inc. John Pozsgai and Gizella Pozsgai

OPINION OF THE COURT

In this civil enforcement action, John and Gizella Pozsgai appeal the district court’s judgment finding them strictly liable for discharging fill material into wetlands on their property in violation of the Clean Water Act. Defendants also appeal various orders granting the government injunctive relief, finding John Pozsgai in contempt of the injunction, and denying the Pozsgais’ motion for relief from judgment. We will affirm.

I.

In April 1987, the U.S. Army Corps of Engineers received information that fill material was being dumped into wetlands on a 14-acre site in Morrisville, Pennsylvania. The Corps investigated the site, determined that nearly the entire property constituted wetlands, and found that concrete rubble, earth, and building scraps had been dumped onto one-half to three-quarters of an acre of the wetlands portion of the property. Corps biologist and field investigator Martin Miller described the site as “a forested wetland dominated by arrowwood” and noted “areas of standing water were scattered throughout the site,” and “a stream flows along the east border of the. property and wetland and. is a tributary to the Pennsylvania Canal.” Miller also observed several species of vegetation on *722 the site which require a saturated environment to survive, including skunk cabbage, sensitive fern, red maple, sweet gum, ash, and aspen. Soil borings taken by Miller and other Corps biologists confirmed the initial determination of wetlands, revealing water either at or within one inch of the surface of the soil. This so-called hydric soil takes 100 years or more to develop.

Unpermitted discharge of dredged or fill materials into certain wetlands 1 violates a regulation promulgated under the Clean Water Act, 33 U.S.C. § 1251 et seq. (1988). Miller’s field report stated that “[t]he violation consists of the placement of fill (concrete rubble, earth, and building scraps) in three portions of the wetland for the purpose of raising the elevation for construction of a garage.” The report identified the violator as John Pozsgai.

At the time of the Corps investigation, John and Gizella Pozsgai were considering purchasing the property to expand their truck repair business. John Pozsgai planned to build a garage on the property, a project which would require filling a significant amount of the area. In preparation for this purchase, Pozsgai hired the engineering firm of J.G. Park Associates to examine the suitability of the property for building. On December 12, 1986, J.G. Park President Nicholas Moran advised Pozsgai by letter of the results of its site investigation of the property. The letter stated:

Based upon this investigation, it is my professional opinion that the entire site meets the criteria set forth by the Army Corps of Engineers as “wetlands.” This is based upon soils, hydrology and vegetation.

Please be advised that any further development that might be considered on this site would have to be approved and reviewed by the Army Corps of Engineers, and it has been our experience in the past that the Corps is most reluctant to issue permits for sites that have conditions such as this.

This advice turned out to be accurate. Corps biologist Miller spoke to Pozsgai by telephone and advised him not to place fill in the wetlands until he had obtained a permit. Pozsgai told Miller a previous prospective buyer was responsible for at least some of the filling but that Pozsgai planned to fill enough area to build a garage. Pozsgai also agreed to stop his filling activities until he had complied with the permit requirements and said his engineer would call Miller to discuss these requirements.

Pozsgai continued his efforts to purchase the property. Apparently dissatisfied with J.G. Park’s opinion, Pozsgai hired a second engineer, Ezra Golub, to evaluate the property. Golub, too, advised Pozsgai the property was wetlands and the Corps would have to approve any building. Seeking yet a third opinion, Pozsgai hired Majors Engineers, who concurred in the views expressed by the previous two engineers.

After receiving the engineers’ reports, Pozsgai renegotiated the sale contract for the property. The original sale contract, for a purchase price of $175,000, made the sale contingent on Pozsgai obtaining building permits for his proposed garage. The revised contract replaced the contingency provision with an “as is” clause and included a $32,000 reduction in the purchase price, from $175,-000 to $143,000. Under this revised sale contract, Pozsgai purchased the property on June 19, 1987.

In the meantime, Corps investigator Miller continued to monitor activities at the property. Following his April 1987 visit, Miller had several telephone conversations with Pozsgai. Each time, Miller told Pozsgai to stop his filling activities and explained the permit requirements. Additionally, the Corps issued a cease and desist letter to the Cassalias, the prior owners of the property. The Cassalias responded by letter, stating they had sold the property to Pozsgai but had never given him permission to place fill on the property. Miller returned to the site in August 1987 and observed that fill had been placed on an additional two acres of the property. He *723 reiterated to Pozsgai that he would need a permit to discharge the fill and indicated the Corps would issue a cease and desist order if Pozsgai did not stop filling the wetlands. Pozsgai told Miller that township officials and the police had visited him and shown him the cease and desist letter sent to the Cassa-lias. He also told Miller he had stopped work on the property.

On September 3, 1987, the Corps sent John and Gizella Pozsgai a cease and desist letter. The letter stated fill was being placed on the Pozsgais’ property in federally regulated wetlands without a permit in violation of the Clean Water Act and directed the Pozsgais to stop “conducting, contracting, or permitting any further work of this nature.” In response, the Pozsgais’ counsel wrote the Corps on September 24, reporting that John Pozsgai had conferred with engineers regarding the cease and desist letter and expressing Pozsgai’s opinion that the site did not “naturally” contain wetlands but had only become saturated as a result of construction of an overpass near the property.

Miller visited the site again on October 6 and observed additional fill. On this visit, Miller determined almost the entire property constituted wetlands. He. ordered Pozsgai not to do any more filling on the property. Pozsgai said he believed the area was not wetlands because he had excavated the stream on the property. Miller returned to the site in November, again observing new fill since his last visit. Miller reiterated the need for Pozsgai to obtain a permit. On December 17, the Corps sent the Pozsgais a second cease and desist letter, directing them to stop filling, and offering them two options to resolve the violation — removing all fill material and restoring the site to its former condition, or obtaining a Water Quality Certification from the Pennsylvania Department of Environmental Resources.

In May 1988, the Corps again discovered that John Pozsgai was continuing to fill the wetlands. Subsequent investigation revealed Pozsgai had received several hundred truckloads of fill from at least five different hauling companies. On August 18, 1988, following a complaint from a neighbor about the dumping, the U.S. Environmental Protection Agency installed a video camera in the neighbor’s house. The video camera recorded dumping on the property.

On August 24,1988, the United States filed a civil complaint in federal district court, alleging that John and Gizella Pozsgai, and two of the hauling companies hired by the Pozsgais, had violated the Clean Water Act by filling the wetlands on the Pozsgais’ property without a permit. 2 The government sought an order to restore the property to its original state, as well as civil penalties. It simultaneously moved for a temporary restraining order and a preliminary injunction to stop further discharge. The district court entered the TRO. Two days later, on August 26, the video camera recorded 25 truckloads of dirt dumped on the site, and a man, identified by witnesses as John Pozsgai, operating a bulldozer leveling the fill.

On September 2, the government obtained an Order to Show Cause why Pozsgai should not be held in contempt for violating the TRO. The district court held a hearing on the contempt proceeding and the preliminary injunction on September 9 and September 16. After the hearing, the court granted the preliminary injunction and held Pozsgai in contempt, ordering him to pay $5,000 within 48 hours.

In the meantime, the government initiated a parallel federal criminal proceeding against John Pozsgai. On December 30,1988, a jury convicted Pozsgai of 40 counts of unpermit-ted discharge. The district judge sentenced him to three years for the pre-Sentencing Guideline counts and twenty-seven months for post-Guideline counts, to run concurrently, placed him on 5 years probation, and fined him $200,000. We affirmed the conviction. United States v. Pozsgai, 897 F.2d 524 (3d Cir.), cert. denied, 498 U.S. 812, 111 S.Ct. 48, 112 L.Ed.2d 24 (1990). 3

*724 On January 8, 1990, the district court granted a permanent injunction in the government’s civil action. The court found the property contained wetlands subject to the Corps’ jurisdiction and held the Pozsgais and the haulers strictly liable for the unpermitted discharge. It further ordered defendants to implement the plan developed by the Corps to restore the property. The Pozsgais filed a motion to reconsider which the district court denied.

On June 18, the court implemented its restoration order and directed the defendant haulers to restore the property by removing fill from the wetland areas and depositing it in other non-wetland areas of the property. 4 The Pozsgais filed a Fed.R.Civ.P. 60(b) motion for relief from this order, objecting to the locations where the haulers placed the fill and requesting the court to order the haulers to remove the fill from the Pozsgais’ property altogether. The court denied the motion, ruling that the Pozsgais had no “veto power” over the restoration process and that it would be inequitable to require the haulers to move the fill a second time when the Pozsgais had improperly disposed of it in the first place. The court entered final judgment on April 1, 1992. The Pozsgais appealed. 5

II.

In furtherance of its purpose to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), the Clean Water Act prohibits the discharge of pollutants into navigable waters without a permit. 33 U.S.C. § 1311; United States v. Riverside Bayview Homes, 474 U.S. 121, 123, 106 S.Ct. 455, 457, 88 L.Ed.2d 419 (1985). The Act defines the operative terms of this prohibition broadly. The term “pollutants” includes fill material such as “dredged spoil, ... rock, sand, [and] cellar dirt,” 33 U.S.C. § 1362(6), and “navigable waters” means “the waters of the United States,” id. § 1362(7). In so defining the term “navigable waters,” Congress expressed a clear intent “to repudiate limits that had been placed on federal regulations by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term.” Riverside Bayview Homes, 474 U.S. at 133, 106 S.Ct. at 462 (citing S. Conf. Rep. No. 92-1236, p. 144 (1972); 118 Cong. Rec. 33756-57 (1972) (statement of Rep. Dingell)).

The Corps of Engineers has by regulation interpreted the term “waters of the United States” to include “wetlands,” defined as “areas that are inundated or saturated by surface or ground water at a frequency or duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, [and] generally inelude[s] swamps, marshes, bogs, and similar areas.” 33 C.F.R. § 328.3(b) (1992). The regulation extends the Corps’ authority to wetlands “adjacent” to tributaries of waters presently or formerly used, or susceptible to use, in interstate commerce. Id. The Supreme Court has upheld this regulation as a reasonable interpretation of the Clean Water Act. Riverside Bayview Homes, 474 U.S. at 135, 106 S.Ct. at 463.

Section 404 of the Act authorizes the Corps of Engineers to issue permits for “the discharge of dredged or fill material into the navigable waters....” 33 U.S.C. § 1344(a). The permit program is the central enforcement tool of the Clean Water Act. The program reflects the Act’s strategic shift in water pollution policy, which previously had employed only water quality standards. *725 These standards proved unsuccessful in controlling pollution because the Corps had difficulty linking the quality of the water to discharges from a particular source. The Act sought to avoid this problem by focusing pollution control efforts at the point of discharge. See EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 204, 96 S.Ct. 2022, 2024, 48 L.Ed.2d 578 (1976). The Environmental Protection Agency implemented that strategy in part by establishing national effluent standards. The permit system translates these standards into site-specific limitations to accommodate individual circumstances and ease enforcement. Id. at 205, 96 S.Ct. at 2025. Unper-mitted discharge is the archetypal Clean Water Act violation, and subjects the discharger to strict liability. 33 U.S.C. § 1311(a) (“except as in compliance with [a permit], the discharge of any pollutant by any person shall be unlawful”).

III.

On appeal, the Pozsgais do not dispute they discharged fill onto wetlands without a permit. They urge instead that this conduct did not violate the Clean Water Act. The Pozsgais contend that filling wetlands does not constitute discharge of pollutants “into water” within the meaning of the Clean Water Act, that their wetlands fall outside the Corps’ regulation and permit requirements, and that the regulation as applied to them violates the Commerce Clause.

A.

We first address the Pozsgais’ argument that they did not discharge pollutants “into water” within the meaning of the Clean Water Act. 33 U.S.C. § 1362(6). They contend that the fill materials deposited on their property were not “pollutants,” and that they discharged only into “wetlands,” which are not equivalent to “water.”

To assess these contentions, we look to the statute. The operative section of the Clean Water Act is § 301, which provides that absent a permit, “the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). The Act defines “pollutant” to mean “dredged spoil, rock, sand” and other materials “discharged into water,” id. § 1362(6), and defines “discharge of a pollutant” to mean “any addition of any pollutant to navigable waters from any point source,” id. § 1362(12). The Act defines “navigable waters” to mean “the waters of the United States.” Id. § 1362(7). The Corps’ regulation upheld in Riverside Bayview defines “waters of the United States” to include certain wetlands.

(1)

In ruling the Pozsgais’ fill material constituted “pollutants,” the district court cited evidence that they placed “concrete rubble” and “cinder block” on their property and cleared and redeposited vegetation there. The court held each of these qualified as “pollutants,” defined to include “dredged spoil, solid waste, ... rock, sand, ... municipal, and agricultural waste.... ” 33 U.S.C. § 1362(6). On appeal, the Pozsgais stress' the absence of the words “fill material” in the definition of “pollutant.” They point to Congress’ use of the term “fill material” in the Act’s permitting provision, id. § 1344, as evidence Congress was aware of this phrase and chose not to include it in the definition of “pollutant.” This argument is unconvincing. Because the term “pollutant”- includes “dredged spoil, rock, [and] sand,” id. § 1362(6), which are the constituents of the fill material used here, the materials discharged by the Pozsgais constituted “pollutants.”

(2)

The Pozsgais’ second contention is more sweeping. They argue that the phrase “into water” in the definition of “pollutant” forecloses application of the Clean Water Act to their activities, which consisted only of depositing fill material into “wetlands.” Again, the district court disagreed, citing the Corps regulation that defines “waters of the United States” to include “wetlands” adjacent to waters used in interstate commerce, 33 C.F.R. § 328.3(a)(7), and to the Supreme Court’s Riverside Bayview Homes decision upholding this regulation as a reasonable interpre *726 tation of the Act, 474 U.S. at 135, 106 S.Ct. at 463.

The Pozsgais contend the district court misconstrued the Act. In their view, the phrase “into water” in the definition of “pollutant” is the critical limiting feature of the Act because this phrase determines application of the Act’s permit requirement. They base this argument on the Act’s liability section, which provides that without a permit, “the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). By contrast, they contend, the phrase “waters of the United States” — and the Corps’ regulation interpreting that phrase to include adjacent wetlands — only define the Act’s geographic jurisdiction and cannot alone support a finding of liability. Thus, the Pozsgais maintain, the district court’s reliance on these provisions, and on Riverside Bayview’s interpretation of them, was misplaced. They conclude that because neither Riverside Bay-view nor the Corps regulation address the definition of “pollutant,” these authorities do not obviate the statutory obstacle to liability created by the requirement that materials only constitute “pollutants” if they are discharged “into water.”

The interpretive problem raised by the Pozsgais’ argument lies in knitting together the various statutory provisions. Incorporating the definition of “pollutant” in § 1362(6) into the definition of “discharge of a pollutant” in § 1362(12) creates an apparent redundancy, as the term “discharge of a pollutant” then reads: “any addition of any ‘dredged spoil ... discharged into water’ to navigable waters from any point source.” The question then becomes how the phrase “into water” and the phrase “to navigable waters” co-exist in this definition. The Poz-sgais avoid this problem by ignoring the definition of “discharge of a pollutant,” and focusing instead exclusively on the definition of “pollutant” and the use of the word “pollutant” in the Act’s liability section, § 1311. This reading is untenable because although § 1311 contains the word “pollutant,” it does so in the context of expressly prohibiting “discharge of any pollutant.” We read this as a clear cross-reference to the definition of “discharge of a pollutant” in § 1362(12).

At oral argument, the Pozsgais argued §§ 1362(6) and (12) are not in conflict. They asserted that because the term “discharge of a pollutant” itself includes the term “pollutant,” the former definition, including its use of “navigable waters,” is necessarily limited by the phrase “into water” in the definition of “pollutant.” The more natural reading of the definition of “discharge of a pollutant” is that the phrase “navigable waters” modifies the phrase “into water,” and accordingly, that the critical definition is that given the term “navigable waters.” As a textual matter, the word “navigable” is an adjective modifying the word “water.” Moreover, the statute contains numerous references to the phrase “navigable waters,” revealing that this phrase, rather than “into water,” is the focus of the Act’s coverage. The Act’s “Congressional declaration of goals and policy” states: “it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.” 33 U.S.C. § 1251(a)(1). Section 404 provides that “[t]he Secretary [of the Army] may issue permits ... for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” Id. § 1344(a). Additionally, the Act defines “navigable waters” to mean “waters of the United States.” Id. § 1362(7). 6

The legislative history also demonstrates the significance and breadth of the term *727 “navigable waters.” The Conference Report states: “[t]he conferees fully intend that the term ‘navigable waters’ be given the broadest possible constitutional interpretation....” S.Conf.Rep. No. 1236, 92d Cong., 2d Sess. 144, U.S. Code Cong. & Admin. News 1972, 3668, reprinted in 1 A Legislative History of the Water Pollution Control Act Amendments of 1972 327 (1973); see also H.R.Rep. No. 911, 92d Cong., 2d Sess. 131 (containing identical language), in 1 Legislative History 818.

Moreover, the Senate Report makes clear it is the discharge of materials constituting “pollutants” into “navigable waters” that triggers the Act’s permit requirement. The Report provides:

For the first time the Committee would add to the law a definition of the term pollutant. In order to trigger the control requirements over addition of materials to the navigable water, waters of the contiguous zone and the ocean, it is necessary to define such materials so that litigable issues are avoided over the question of whether the addition of a particular material is subject to the control require-ments____ The control strategy of the Act extends to navigable waters____

S.Rep. No. 414, 92d Cong., 1st Sess. 77-78, U.S. Code Cong. & Admin. News 3668, in 2 Legislative History 1494-95. This legislative history supports our view that the phrase “navigable waters” rather than “into water” is the critical statutory language. It also demonstrates the definition of “pollutant” establishes the types of materials whose discharge violates the Act rather than the locus of their discharge, further undermining the significance of the “into water” phrase.

Our emphasis on “navigable waters” also comports with the interpretation of the Clean Water Act by other courts, who have reached the same conclusion without expressly considering the “into water” portion of the definition of “pollutant.” In upholding the Corps’ wetlands regulation in Riverside Bayview, the Supreme Court stated simply: “the act prohibits discharges into ‘navigable waters,’ see Clean Water Act §§ 301(a), 404(a), 502(12), 33 U.S.C. §§ 1311(a), 1344(a), 1362(12).” 474 U.S. at 133, 106 S.Ct. at 462. We find significant both the Court’s summary treatment of this question and its citation only to the “discharge of a pollutant” definition, § 1362(12), not to the “pollutant” definition, § 1362(6). 7

The Pozsgais maintain the phrase “navigable waters,” which they note is defined as “waters of the United States,” refers only to the geographic jurisdiction of the Act. Therefore, they contend, that definition does not modify the phrase “into water,” which they read only to describe the conduct regulated by the Act. This distinction is illusory. The purpose of extending the Corps’ geographic jurisdiction to “waters of the United States,” including adjacent wetlands, is precisely so the Corps can control conduct occurring on these wetlands, i.e., the discharge of pollutants. Indeed, such conduct has given rise to this action.

For the reasons we have outlined, we believe Congress intended “navigable waters” to be the controlling phrase in defining the scope of the Clean Water Act, and we believe this phrase modifies the more general term “into water” appearing in the definition of “pollutant.” Accordingly, the Pozsgais’ wetlands filling activities constituted “discharge into water” and fall within the statute. Our conclusion that the Act’s permit requirement applies to pollutants discharged into “navigable waters” does not, however, dispose of the Pozsgais’ second statutory argument — that the Corps’ wetlands regulation represents an impermissible construction .of the unambiguous statutory term “water.”

*728 B.

In asserting the term “water” as used in the Clean Water Act is unambiguous, the Pozsgais seek to bring this ease within the exception to the rule of deference to an agency’s statutory interpretation established by Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, courts should not defer to an agency regulation where legislative language is unambiguous because Congress has chosen to define precisely the statutory meaning and has left no implicit or explicit gap in statutory coverage for the agency to fill. 467 U.S. at 843-44, 104 S.Ct. at 2781-82. Where, on the other hand, a statute is “silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s [regulation addressing the issue] is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. at 2781. Thus, Chevron commands a two-step approach. The court first determines whether the statute is clear, and if it is unclear, the court decides whether the agency’s construction is reasonable. N.L.R.B. v. New Jersey Bell Telephone Co., 936 F.2d 144, 147 (3d Cir.1991).

Applying Chevron in Riverside Bayview, the Supreme Court squarely rejected the contention that “water” cannot mean “wetlands.” Like the Pozsgais, the defendant in Riverside Bayview sought to place fill materials on its property without a Clean Water Act permit in preparation for a construction project, and the Corps of Engineers obtained an injunction against the filling. The defendant contended the Corps’ regulation extending the permit requirement to adjacent wetlands exceeded the bounds of the Clean Water Act. Rejecting this contention, the Court determined not only that the phrase “water” lacked a fixed meaning, 474 U.S. at 132, 106 S.Ct. at 462, but also that the Corps “acted reasonably in interpreting the Act to require permits for the discharge of fill material into wetlands adjacent to the ‘waters of the United States,’” id. at 139, 106 S.Ct. at 465.

In urging Congress’ use of the term “water” forecloses application of the Act to their activities, the Pozsgais insist the word “water” means “the liquid state of H20,” not “wetlands” or “moist soil” or “dry land that the Corps determines to be water.” In Riverside Bayview, the Supreme Court took a different view, stating:

On a purely linguistic level, it may appear unreasonable to classify “lands,” wet or otherwise, as “waters.” Such a simplistic response, however, does justice neither to the problem faced by the Corps in defining the scope of its authority under § 404(a) nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat. In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs — in short, a huge array of areas that, are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of “waters” is far from obvious. ■

474 U.S. at 132, 106 S.Ct. at 462.

Having determined the term “water” was ambiguous, the Court then moved to Chevron’s second step and considered whether the Corps’ interpretation of the term to include adjacent wetlands was reasonable. The Court noted that, in determining “the landward limit of Federal jurisdiction under Section 404 [of the Clean Water Act] must include any adjacent wetlands that form the border of or are in reasonable proximity to other waters of the United States,” the Corps concluded that “water moves in hydro-logic cycles, and the pollution of [adjacent wetlands] ... will affect the water quality of the other waters within that aquatic system.” Riverside Bayview, 474 U.S. at 134, 106 S.Ct. at 463 (quoting 42 Fed.Reg. 37128 (1977)). Upholding this interpretation, the Court recognized “the evident breadth of congressional concern for protection of water quality and aquatic ecosystems” embodied in the Act, 474 U.S. at 133, 106 S.Ct. at 462, and determined: “[w]e cannot say that the Corps’ conclusion *729 that adjacent wetlands are inseparably bound up with the ‘waters’ of the United States— based as it is on the Corps’ and EPA’s technical expertise' — is unreasonable,” id. at 134, 106 S.Ct. at 463.

The Pozsgais attempt to distinguish Riverside Bayview on the ground that the Court based its ruling on the “navigable waters” definition rather than the “into water” phrase. But as we have shown, “navigable waters” is the operative phrase. Moreover, as the quoted passage indicates, the Supreme Court’s analysis dealt with a question common to both statutory phrases — whether the Corps reasonably interpreted the term “water” to include adjacent wetlands.

The rationales underlying Chevron apply with particular force to the Corps’ application of the Clean Water Act to wetlands. In Chevron, the Court defended deference to agency interpretations on the grounds that unlike a court, an agency has specialized knowledge of the relevant statutory area and is a politically accountable body. 467 U.S. at 865, 104 S.Ct. at 2792 (“[jjudges are not experts in the field, and are not part of either political branch of the Government”); see Cass R. Sunstein, Law and Administration after Chevron, 90 Colum.L.Rev. 2071, 2086-87 (1990).

The Chevron Court indicated these rationales are particularly powerful where “the regulatory scheme is technical and complex.” 467 U.S. at 865, 104 S.Ct. at 2792. Like the Clean Air Act in Chevron, the Clean Water Act addresses a scientifically complicated subject, and has an intricate regulatory structure. Thus, the Supreme Court recognized in Riverside Bayview:

In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps’ ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.

474 U.S. at 134, 106 S.Ct. at 463; see also Arkansas v. Oklahoma, — U.S.-,-, 112 S.Ct. 1046, 1061, 117 L.Ed.2d 239 (1992) (reversing Court of Appeals decision to invalidate Clean Water Act permit issued by EPA because that court failed to defer to EPA’s interpretation of its water quality regulation and therefore “made a policy choice that it was not authorized to make”); Chemical Manufacturers Ass’n v. Natural Resources Defense Council, 470 U.S. 116, 125, 105 S.Ct. 1102, 1107, 84 L.Ed.2d 90 (1985) (deferring to EPA interpretation of Clean Water Act because “EPA’s understanding of this very ‘complex statute’ is a sufficiently rational one to preclude a court from substituting its judgment for that of EPA,” and citing Chevron ).

The Chevron Court’s concern that agencies have political, accountability, which courts lack, also supports deference to the Corps’ wetlands regulation. In articulating this rationale, the Court reasoned:

[t]he arguments over policy that are advanced in the parties’ briefs create the impression that respondents are now waging in a judicial forum a specific policy battle which they ultimately lost in the agency and in the 32 jurisdictions opting for the “bubble concept,” but one which was never waged in the Congress. Such policy arguments are more properly addressed to legislators or administrators, not to judges____ In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do.

467 U.S. at 864-66, 104 S.Ct. at 2792-93.

The regulation the Pozsgais challenge here represents the product of a nearly twenty-year policy battle over the scope of federal wetlands protection. The Corps initially interpreted the term “navigable waters” to apply only to those waters “subject to the ebb and flow of the tide,” the regulatory definition used by the Corps under the River and Harbor Act of 1899. The Environmental Protection Agency, which shared administrative authority under the Clean Water Act with the Corps, believed the Act should be construed to cover wetlands because of their significance to water pollution control. This fight culminated in a 1975 court decision ordering the Corps to revise and broaden its regulation. Natural Resources Defense *730 Council v. Callaway, 392 F.Supp. 685 (D.D.C.1975). Following this decision, the Corps revised its regulation, a process which lasted two years, engendered more than 4,500 comments, and resulted in a final rule defining the term “navigable waters” to include wetlands. 42 Fed.Reg. 37122 (1977).

Nonetheless, during the debate on the Clean Water Act of 1977, “because of the pressure of many farm, forestry and land development groups, there were continued efforts to amend the Act to redefine the term “navigable waters” in a more traditional and restrictive sense____ None passed.” Avoyelles Sportsmen’s League, Inc. v. Alexander, 511 F.Supp. 278, 288