164
Opinion of the Court
In 1986, in an attempt to "clarify" the reach of its jurisdiction, the Corps stated that § 404(a) extends to instrastate waters:
"a. Which are or would be used as habitat by birds protected by Migratory Bird Treaties; or "b. Which are or would be used as habitat by other migratory birds which cross state lines; or "c. Which are or would be used as habitat for endangered species; or "d. Used to irrigate crops sold in interstate commerce." 51 Fed. Reg. 41217.
This last promulgation has been dubbed the "Migratory Bird Rule." 1
The Corps initially concluded that it had no jurisdiction over the site because it contained no "wetlands," or areas which support "vegetation typically adapted for life in saturated soil conditions," 33 CFR § 328.3(b) (1999). However, after the Illinois Nature Preserves Commission informed the Corps that a number of migratory bird species had been observed at the site, the Corps reconsidered and ultimately asserted jurisdiction over the balefill site pursuant to subpart (b) of the "Migratory Bird Rule." The Corps found that approximately 121 bird species had been observed at the site, including several known to depend upon aquatic environments for a significant portion of their life requirements. Thus, on November 16, 1987, the Corps formally "determined that the seasonally ponded, abandoned gravel mining depressions located on the project site, while not wetlands, did qualify as 'waters of the United States' . . . based upon the following criteria: (1) the proposed site had been abandoned as a gravel mining operation; (2) the water areas and spoil piles had developed a natural character; and (3) the water areas
1 The Corps issued the "Migratory Bird Rule" without following the notice and comment procedures outlined in the Administrative Procedure Act, 5 U. S. C. § 553.
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