Full opinion text
MEMORANDUM-DECISION AND ORDER MUNSON, Senior District Judge. INTRODUCTION 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 A. Introduction Defendants move to dismiss Counts 2-31 of the Indictment on the grounds that the Permit issued to Iroquois (“Iroquois Permit”) was issued by a District Engineer who lacked statutory authority under the CWA to issue such permits. The government opposes this motion, asserting that the Secretary of the Army promulgated regulations in compliance with the Administrative Procedures Act (“APA”) which authorized the Chief of Engineers to delegate to the District Engineers his statutory authority to issue or deny § 404 permits for the discharge of dredged or fill material into the navigable waters of the United States at specified disposal sites. B. Analysis 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, “[i]f 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 “[t]he 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 “[a]ny 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. The government readily concedes that the Iroquois Permit was issued by the New York District Engineer. However, it argues that this fact does not preclude the criminal prosecution of defendants for allegedly violating this permit because the Chief of Engineers and his necessary representatives are authorized to issue such permits on behalf of the Secretary pursuant to regulations which the Corps promulgated in strict compliance with the APA See 33 C.F.R. § 325.8(a) (“Except as otherwise provided in this regulation, the Secretary of the Army, ..., has authorized the Chief of Engineers and his authorized representatives to issue or deny permits ... for the discharge of dredged or fill material into waters of the United States pursuant to section 404 of the Clean Water Act; ...”); 33 C.F.R. § 325.8(b) (“District Engineers are authorized to issue or deny permits in accordance with these regulations pursuant to ... section 404 of the Clean Water Act; ...”). 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, 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 “[a]ll 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 “[t]he 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 “[t]he words of ... section [4], 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 “[tjhis 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 “[t]he 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 “[t]he 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 [i]t 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 [e]ven 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. Id. at 507-08, 94 S.Ct. at 1823. On appeal, the government argued that the authorization of intercept applications by the Attoméy 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 “[pjlainly 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 [v]ests all functions of the Department of Justice, with some exceptions, in the Attorney General, and that Congress characteristically assigns newly created duties to the Attorney General rather than to the Department of Justice, thus making essential the provision for delegation appearing in 28 U.S.C. § 510: “The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.” Id. at 513, 94 S.Ct. at 1825-26. Based upon this language, the government argued that “[m]erely 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 “[t]he 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 “[i]t 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, “[i]t 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 “[t]here 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 “[i]t 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). The government attempts to distinguish Cudahy Packing and Giordano on the ground that in both of those cases the Supreme Court concluded that Congress clearly expressed an intent that no delegation by the agency be permitted. Unlike those cases, the government asserts that the legislative history of the CWA makes clear that Congress contemplated that the Chief of Engineers would administer the § 404 permit program on behalf of the Corps in an efficient and effective manner, thus indicating that Congress intended to permit him to subdelegate his § 404 permitting authority to the District Engineers if such delegation would serve this purpose. 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 “‘[t]he 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 “‘[t]he 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, “[t]he [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 “[i]n 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 “[t]he 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 ‘“[t]he 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 “[s]uch 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 “[t]he presence of the rule-making power, together with the other factors differentiating this ease from the Cudahy case, indicates that the authority granted by § 201(a) and (b) should not be read restrietively.” Id. at 122, 67 S.Ct. at 1134. In the other ease 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 Rodríguez 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 “[i]t 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 “[n]othing 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 “[ujnder 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). Despite the government’s argument to the contrary, neither Rodriguez or Fleming is dispositive of the present case. Both of those cases involved statutes which were silent on the issue of delegation and both statutes included a general rule-making provision. To the contrary, § 404 specifically identifies the official to whom the Secretary may delegate his permit issuing authority: “[t]he Secretary of the Army acting through the Chief of Engineers.” 33 U.S.C. § 1344(d). Moreover, the CWA does not contain a general rule-making provision upon which the Secretary may rely to delegate, or further subdelegate, his authority to issue § 404 permits to the District Engineers. 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 “[t]he 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 “[t]his 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, 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 “[t]he 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 “[t]he 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 “[t]he [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 “‘[w]e must read the statutes to give effect to each if we can do so while preserving their sense and purpose.’” Id. at 185 (quoting Wait 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, ex-pressio unius est exclusio alterius; i.e., “ ‘the mention of one thing implies the exclusion of the other.’ ” Id. (quoting Ethyl, 51 F.3d 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. Id. 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, “[t]o 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., 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). Relying upon tins reasoning, the court held that “[t]he absence of an express proscription — whether in section 2104(a), section 322(b), GLPA, or the Corporation’s statutory charter — provides no green light to ignore the proscription necessarily implied by the limiting language of section 2104(a).” Id. at 187. 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 “[m]ust give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. 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, “[o]rdinarily [the court] ha[s] 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 elear[,]’” Halverson, 129 F.3d at 187 n. 10 (quoting NRDC, 57 F.3d 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 to issue permits is inconsistent with the legislative history of the CWA and would contradict the express purpose of the Act, the court will consider the government’s arguments in this regard. Relying upon Inland Empire Public Lands Council v. Glickman, 88 F.3d 697 (9th Cir.1996), the government argues that without express Congressional authority for sub-delegation, one must look to the purpose of the statute to set the parameters of such delegation. At issue in Glickman was the Rescissions Act, § 2001(c)(1)(A), 16 U.S.C. § 1611 note, which provided, in pertinent part, that “‘[a] document embodying decisions relating to salvage timber sales proposed under authority of this section shall, at the sole discretion of the Secretary concerned ..., consider the environmental effects of the salvage timber sale ...’” Id. at 701 (quoting § 2001(c)(1)(A), 16 U.S.C. § 1611 note) (emphasis added). Based upon this “sole discretion” language, the plaintiff argued that the Rescission Act required that Secretary Glickman personally authorize all salvage timber sales. See id. at 702. To support this interpretation, Inland Empire relied upon the following remarks of Senator Lieberman made on the Senate floor: “ ‘ The timber provision that finally passed contains a change over previous language to expand the role of the Secretary of Agriculture to require his signature in order to implement new sales.’ ” Id. at 702 (quoting 151 Cong. Rec. S10465 (July 21, 1995)). The court rejected this argument, finding that “[t]he floor statements of an individual member of Congress who did not sponsor the bill, ..., have limited value in interpreting congressional intent.” Id. The court nonetheless concluded that “[requiring Secretary Glickman to personally authorize every timber sale would contradict the purpose of the Rescissions Act, which is to expedite such sales. Moreover, ‘delegation generally is permitted when it is not inconsistent with the statute.’ ” Id. (quoting National Ass’n of Psychiatric Treatment Ctrs. for Children v. Mendez, 857 F.Supp. 85, 91 (D.D.C.1994)) (other citation omitted). In reaching its conclusion that Secretary Glickman need not personally authorize salvage timber sales, the Ninth Circuit distinguished Giordano. It did so on the grounds that the statute at issue in Giordano .expressly described to whom authority could be delegated and concluded that Giordano applied only to statutes that explicitly restricted delegation. Id. at 703. The government’s reliance upon Inland Empire is clearly misplaced given the plain language of § 404. Unlike the statute at issue in Inland Empire, § 404 explicitly restricts the Secretary’s delegation authority. Moreover, it can be inferred from the Ninth Circuit’s discussion of Giordano that the court might have reached a different conclusion had the Rescission Act expressly described to whom authority could be delegated. Secondly, the government contends that at the time the CWA was enacted one of Congress’ primary concerns was the length of delay in processing permit applications. Moreover, the government asserts that the legislative history of the CWA makes clear that the sheer number of applications alone was alarming. Of particular concern, according to the government, was the unnecessary paperwork and delays in the § 404 permitting process. To support this contention, the government directs the court’s attention to 33 U.S.C. § 1251(f) which provides that [i]t is the national policy that to the maximum extent possible the procedures utilized for implementing this chapter shall encourage the drastic minimization of paperwork and interagency decision procedures, and the best use of available manpower and funds, so as to prevent needless duplication and unnecessary delays at all levels of government. 33 U.S.C. § 1251(f). Relying upon this provision, the government asserts that requiring the Secretary or the Chief of Engineers to evaluate personally every-individual permit application would not only contradict one of the purposes of the CWA which is to expedite the permit process but would also functionally halt the issuance of permits nationwide. Although § 1251(f) clearly encourages efficient management of the permitting process, there is no indication that the provision was intended to require, or even recommend, that the authority to issue § 404 permits should be delegated to the Chief of Engineers’ subordinates. In fact, § 1251(f) appears to be directed more at the problems of “inter-agency” communication rather than at “intraagency” communication. Thus, the court concludes that § 1251(f) does nothing to clarify Congress’ intent in promulgating § 404. Nor does it support the government’s position that defendants’ interpretation of § 404 is inconsistent with the purpose of the CWA. The government also asserts that, the legislative history of the CWA is replete with debate over the Corps’ exact role in implementing legislation and that the record makes clear that Congress contemplated that the § 404 permit program would be administered by the Chief of Engineers through his necessary representatives. In this regard, the government directs the court’s attention to Senate Bill 2770 which was introduced by Senator Muskie on October 28, 1971. This bill sought to amend the Federal Water Pollution Control Act to give the Secretary of the Army the authority to issue § 404 permits in light of his responsibilities under the Rivers and Harbors Act. See Government’s Memorandum of Law in Response to Defendants’ Motion to Dismiss Counts 2-31 at 11 (citing 117 Cong. Rec. 538853-54 (daily ed. Nov. 2, 1971) (proposal by Sen. Ellender)). Opponents of the amendments questioned the propriety of “shift[ing] the environmental evaluation authority from EPA to the Corps of Engineers.” See id. (quoting 117 Cong. Rec. 538854 (daily ed. Nov. 2,1971) (remarks of Sen. Muskie)). At the same time, under the House amendment, a separate permit program was established for the discharge of dredged or fill material into navigable waters to be administered by the Secretary of the Army acting through the Chief of Engineers. See id. (citing 118 Cong. Rec. H10828 (daily ed. Mar. 29, 1972); S. Conf. Rep. No. 92-1236, 92 Cong., 2d Sess., Sept. 28,1972,1972 U.S.C.C.AN. 3776, 3818). The Conference Substitute bill adopted this provision from the House amendment and provided that the § 404 permit program would “be administered by the Corps of Engineers.” See id. (quoting 118 Cong. Rec. H33752 (daily ed. Oct. 4,1972)). Based upon this limited legislative history, the government concludes that the Senate was uniquely aware of the process by which dredge and fill permits were handled and that Congress, as of 1972, intended the § 404 permit program to be administered by the Chief of Engineers through his necessary representatives within the Corps. See id. The government goes on to assert that the 1977 debates support this conclusion. First of all, the government directs the court’s attention to the remarks of Representative Clausen regarding the Corps’ procedures for promulgating regulations related to its authority to control dredge and fill operations. See id. at 12 (citing 123 Cong. Rec. H10403 (daily ed. Apr. 5, 1977) (remarks of Rep. Clausen)). Secondly, the government states that when Congress amended the CWA in 1977, the regulations governing the § 404 permit program were already in effect, see 33 C.F.R. § 209.120, and that numerous references were made to them. The government argues that despite the fact that Congress knew how the Corps administered the § 404 program, it chose not to address the issue. From this lack of discussion, the government concludes it is reasonable to assume Congress approved of these procedures and regulations. See id. In response to the government’s arguments, defendants assert that the legislative history which the government cites is not only often misleading or taken out of context but is, more importantly, entirely unpersuasive. See Defendants’ Reply Memorandum of Law in Support of Motion to Dismiss Counts 2-31 at 7-8. With respect to the 1972 Senate Report cited by the government, defendants contend that the Senate attributed the inefficiency of the pre-CWA programs primarily to the fact that the authority was divided between two federal agencies, a problem the Senate bill proposed, unsuccessfully, to remedy by giving the EPA total control over CWA permitting. See id. at 7 n. 5 (citing S.Rep. No. 92-414, 92d Cong.2d Sess., 1972 U.S.C.C.AN. 3668, 3672). In addition, according to defendants, the bill which the cited report discusses did not contain § 404 in any form nor did it give the Corps any role in the permitting process. See id. n. 5 (citing S.Rep. No. 92-414, 92d Cong.2d Sess., 1972 U.S.C.C.AN. 3668, 3736-40). Thus, defendants argue that this report sheds no light on the proper interpretation of § 404 or Congress’ intentions regarding the Corps’ permitting authority under the CWA as ultimately passed. See id. In addition, defendants contend that not a single citation upon which the government relies pertains to the issue of subdelegation authority. See id. at 8. Moreover, according to defendants, not one statement purports to express the view of even a single legislator, much less the House or Senate Committees or Congress as a whole, regarding whether the Chief of Engineers should be allowed to assign to inferior officials of the Corps his power to issue § 404 permits. See id. Thus, defendants conclude that the legislative history upon which the government relies is of little or no value in determining the meaning of § 404(d). See id. (citing Regan v. Wald, 468 U.S. 222, 237, 104 S.Ct. 3026, 3035, 82 L.Ed.2d 171 (1984) (“Oral testimony of witnesses and individual Congressmen, unless very precisely directed to the intended meaning of particular words in a statute, can seldom be expected to be as precise as the enacted language itself. To permit what we regard as clear statutory language to be materially altered by such colloquies would open the door to the inadvertent, or perhaps even planned, undermining of the language actually voted on by Congress and signed into law by the President.”)). Finally, defendants assert that in all the legislative materials regarding the CWA during 1972 and 1977, the mechanics of permit issuance under § 404 were almost never addressed. See Defendants’ Reply Memorandum of Law in Support of Motion to Dismiss Counts 2-31 at 8. By way of example they note that in 1972, the only issue regarding the Corps was whether to include § 404 at all; and in 1977 § 404(d) was created through a technical amendment that simply moved the relevant language from § 404(a), an amendment that did not receive even a single sentence of explanation in the committee reports. See id. n. 6. Moreover, defendants claim that in the rare instances when these issues were mentioned, the committee reports simply reiterated the language of the statute itself: § 404 permits are to be issued by “‘the Secretary of the Army, acting through the Chief of Engineers.’ ” See id. (quoting H.R.Rep. No. 92-911, 92d Cong.2d Sess. at 63 (1972); Conf. Rep. No. 92-1236, 92d Cong.2d Sess, 1972 U.S.C.C.A.N. 3776, 3818). With respect to the government’s argument concerning the general statements endorsing the idea that § 404 permits should be issued efficiently and that unnecessary delays should be eliminated, defendants counter that such Statements indicate nothing about how Congress wished to create efficiencies or eliminate the delays or what delays Congress considered unnecessary. See id. at 9. Moreover, defendants assert that the government failed to note that the principal substantive changes to § 404 under consideration in 1977 were the enactment of blanket exemptions from § 404 permit requirements; a limitation on the Corps’ jurisdiction over wetlands; and the enactment of a system of nationwide, or general, permits which relieved a large number of applicants from the need to seek individual permits. See id. (citing S.Rep. No. 95-370, 95th Cong., 1st Sess., 1977 U.S.C.C.A.N. 4326, 4400). Therefore, defendants conclude that to the extent the statements that the government cites had anything to do with § 404, it was in connection with these changes. See id. at 9. Finally, defendants reject the government’s reliance upon the Rivers and Harbors Act. In this regard, they assert that under the precise set of regulations the government contends Congress had in mind as its model when it assigned § 404 permitting responsibility to the Chief of Engineers in 1972— those implementing the Corps’ authority under § 10 of the Rivers and Harbors Act—the Chief of Engineers was required to exercise his personal discretion with respect to every significant permit application. See Defendants’ Reply Memorandum of Law in Support of Motion to Dismiss Counts 2-31 at 10 (citing 33 C.F.R. § 209.120(c) (1971)). Pursuant to this regulation as it existed in 1971, the Chief of Engineers [ajuthorized Division and District Engineers to issue direct from their own offices, in the name of the Secretary of the Army, permits under Sections-10 and 14 of the Act of March 3, 1899, for work and structures in or over navigable waters in eases which are entirely routine and which involve no doubt as to the law, facts, or regulations nor any opposition or other consideration which should be decided by higher authority____ All applications for permits not falling within the above provisions will be forwarded for the consideration of the Chief of Engineers. 33 C.F.R. § 209.120(c)(iii) (1971). Relying upon this regulation, defendants argue that if “Congress knew that the Corps was already issuing section 10 permits for construction and dredge and fill activities in accordance with these regulations, including those that authorize delegation, and it is reasonable to assume that Congress expected the Corps to use similar procedures for the new [ § 404] permit program,” Opp. at 12, it would establish that the procedures used to issue the Iroquois permit were contrary to congressional intent; under the 1971 Rivers and Harbors Act regulations, the Chief of Engineers, and not a District Engineer, would have been required to personally issue the Iroquois permit. See Defendants’ Reply Memorandum of Law in Support of Motion to Dismiss Counts 2-31 at 11. The court’s review of the legislative history of the CWA, with particular reference to § 404, makes clear that this history offers little, if any, support for the government’s reading of § 404. While the language of § 404 is unambiguous, the same cannot be said for the legislative history upon which the government relies. Thus, the court concludes that the government’s attempts to overcome the plain meaning of § 404 by reference to the legislative history of the CWA are unconvincing. C. Conclusion For the foregoing reasons, the court finds that the Secretary lacks the authority to promulgate regulations permitting further subdelegation of his permit issuing power under § 404 to the District Engineers. Since § 1319(c) of the CWA punishes violations of requirements “in a permit issued under section 1344 [ § 404] of this title by the Secretary of the Army ...,” see 33 U.S.C. § 1319(c)(1)(A), (c)(2)(A) (emphasis added), and the Iroquois Permit was not issued by the Secretary of the Army, the court must conclude that this permit cannot serve as the basis for the criminal prosecution of defendants. Accordingly, because Counts 2-31 are based upon allegations that defendants violated requirements contained in a permit, the violation of which is not proscribed by § 1319(c), the court GRANTS defendants’ motion to dismiss Counts 2-31 of the Indictment. In light of this decision, the court strikes any claims in Count 1 of the Indictment which are based upon violations of the Iroquois Permit. In addition, although the court’s dismissal of Counts 2-31 renders unnecessary the court’s review of defendants’ other motions, the court will, nevertheless, address the remaining requests for relief. In doing so, the court will assume that the Iroquois Permit was validly issued. II. Motion to Dismiss Counts 14-19 of the Indictment A. Introduction The allegations contained in Counts 14-19 are based upon Note 7 which appears in two typical construction drawings attached to the Iroquois Permit. This Note provides that “[c]lay plugs or ditch breakers will be installed in trench at wetland edge to prevent changes in the natural drainage patterns. Water level and flow in wetland will be maintained dining and after construction.” See Exhibits attached to Defendants’ Memorandum of Law in Support of Defendants’ Motion to Dismiss Counts 14r-19 (“Defendants’ Joint Exhibits”) at Vol. I, Tab 1. The two drawings on which Note 7 appears are entitled “Typical Non Flooded Wetland Crossing Utilizing A Construction Work Pad” and “Typical Flooded Wetland Crossing Utilizing The Ditch and Pull Method.” These two drawings, together with twenty-two others, are attached to the Iroquois Permit. In addition, the “Project Description” section of the Iroquois Permit provides that “[a]ll work shall be performed in accordance with the attached project drawings, subject to Special Conditions 1-18 hereby made part of this authorization.” See Defendants’ Joint Exhibits at Yol. I, Tab 2 at 1. B. Analysis The gravamen of defendants’ motion to dismiss Counts 14-19 is four-fold. First, they argue that Note 7 is not a requirement of the Iroquois Permit. Second, they assert that the Corps has no authority to impose a permit requirement aimed only at preventing wetland drainage. Third, they contend that even if Note 7 were a valid permit requirement, the plain language and regulatory history of this note contradict the broad interpretation given to it by the government; i.e., that a clay plug or ditch breaker was required to be installed at each edge of a wetland, regardless of need, wherever the trench crossed a wetland. Fourth, they claim that because Note 7 is, at best, susceptible to numerous interpretations, it is not a legitimate basis for criminal prosecution. The government’s response is two-fold. First, it asserts that Note 7 is a requirement of the Iroquois Permit and is not unconstitutionally vague either on its face or as applied to defendants. Second, the-government argues that the Corps has the authority under the CWA to implement requirements such as that found in Note 7, the purpose of which is to require the installation of erosion control devices to prevent the drainage of wetlands. The court will address each of defendants’ arguments, and the government’s response thereto, seriatim. 1. Note 7 is Not a Requirement of the Iroquois Permit Defendants assert that the typical construction drawings of which Note 7 is a part were attached to the Iroquois Permit only to illustrate the general activities expected to occur on the project. To support this argument, defendants note that neither Note 7 nor the typical construction drawings in which it is incorporated are discussed or mentioned in the “Permit Conditions” section of the Iroquois Permit, which sets forth six general conditions and eighteen special conditions upon which the issuance of the Iroquois Permit was founded. Although defendants acknowledge that the typical construction drawings are mentioned in the “Project Description” section of the Iroquois Permit, they argue that the phrase in that section that “all work shall be performed in accordance with the attached project drawings” is properly viewed as part of the general description of the work the Corps authorized Iroquois to perform within the waters of the United States, rather than as a stated requirement imposed by the Iroquois Permit. Moreover, defendants assert that their interpretation of this phrase is in conformity with the stated purpose of the “Project Description” which is not to satisfy or impose CWA requirements but rather to “describe the permitted activity and its intended use with references to any attached plans or drawings that are considered to be a part of the project description.” 33 C.F.R. Pt. 325, App. A at 427 (1997). Defendants further claim that their interpretation of the purpose of the “Project Description” section of the Iroquois Permit is reinforced by the inclusion of more than four pages of specific “Permit Conditions” within this permit. None of the eighteen Special Conditions contained in the Iroquois Permit refer to the “Typical Drawings” attached to the permit, even though some of these conditions include construction procedures and standards set forth in other sources, such as Appendices C and D of the FEIS. As further support for their position that Note 7 is not a permit requirement, defendants argue that nothing in either the drafting history of the typical construction drawings or the Iroquois Permit reflects any intention by the Corps to impose a breaker requirement on Iroquois. In this regard, defendants direct the court’s attention to the Corps’ Record of Decision (“ROD”) which was prepared prior to the issuance of the Iroquois Permit. See Defendants’ Joint Exhibits at Vol. I, Tab 3. This ROD refers to the two typical construction drawings which contain Note 7 as depicting “the two different methods of installing the pipeline across wetlands.” See id. at Vol. I, Tab 3 at 3. However, the ROD does not mention Note 7 in particular or a breaker requirement in general, although it does provide that “[a]fter the pipeline is installed, ... preconstruction hydrologic conditions [will be] restored.” See id. Finally, defendants note that Trans-Canada Pipelines, Ltd., the founding and majority partner of the Iroquois project, prepared all of the “Typical Drawings.” Defendants surmise, without providing any tangible support for this assumption, that the language in Note 7 most likely reflects Iroquois’ effort to assimilate the standards found in Trans-Canada’s “Environmental Protection Practices Handbook” and “Pipeline Construction Specifications.” The 1986 edition of the “Environmental Protection Practices Handbook” provides “[p]rotect critical areas during construction by such measures as: the installation of ditch breakers and ditch plugs to p