concurring in the judgment:
I concur only in the ultimate disposition of this case, and only for the reasons stated in Part V of Judge Niemeyer’s opinion. While I believe the analysis in Part II of Judge Niemeyer’s opinion is convincing, that analysis is directly foreclosed by our court’s decision in Brzonkala v. Virginia Polytechnic & State University, 132 F.3d 949 (4th Cir.1997), an opinion which is nowhere discussed by my colleagues in either of their opinions. In Brzonkala, in stark contrast to the majority herein, the court dismisses the decision of the United States Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), as an aberration, essentially limiting the reach of that opinion to section 922(q), of Title 18, of the United States Code. See Brzonkala, 132 F.3d at 977 (Luttig, J., dissenting). As long as Brzonkala remains the law of the Circuit, I believe that we are bound by, and should faithfully adhere to, that precedent.
PAYNE, District Judge:I concur with the ultimate disposition of the appeal and with Parts II, V, and VI of Judge Niemeyer’s opinion. However, for the reasons set forth below, I disagree with Parts III and IV of that opinion.
Background
This case, at trial and on appeal, centers on the requirement of the CWA that one cannot perform certain activities in certain wetlands without first obtaining a permit from the Corps of Engineers (the “Corps”). As to that central question, the evidence conclusively proved that the activities of which the defendants were convicted occurred while the defendants were dredging and draining wetlands on a vast scale to make room for a commercial real estate development. It is undisputed that, while constructing the project, the defendants discharged great quantities of dredged fill and excavated material into the wetlands. Further, it is undisputed that the defendants deliberately elected to proceed with then-activities without securing permits for discharging the dredged, excavated and fill material into the wetlands. Finally, the proof was that, throughout the period in which the defendants engaged in the activities of which they were convicted, they were informed by their own nationally recognized, highly respected expert environmental consultants that CWA permits from the Corps were required.1
The Adjacency Issue
The focus of Part III of Judge Niemeyer’s opinion is the defendants’ argument that the wetlands in which the activity of conviction occurred were not “waters of the United States.” If the wetlands at issue fit that description, the defendants were required by the CWA to secure a permit from the Corps before making the discharges of pollutants of which the defendants were convicted.
Whether CWA permits were required for those activities depended upon whether these wetlands were adjacent to “waters of the United States” because: (i) the applicable regulations define wetlands which are adjacent to waters of the United States to be “waters of the United States;” and (ii) the regulations which supply this definition have been reviewed and sustained by the Supreme Court of the United States. The Amended Indictment alleged that, without any permits, *267the defendants made discharges of pollutants (dredge material and fill material) into “wetlands adjacent to waters of the United States” (Count One) or “wetlands adjacent to the headwaters ... [of creeks which are] waters of the United States.” (Counts Three, Five and Seven).
Adjacency is a question of fact to be resolved by the jury. To inform the jury in making this determination, the District Court gave the following instruction:
Adjacent: The term adjacent means bordering, contiguous or neighboring. Wetlands separated from other waters of the United States by manmade dikes or barriers, natural river berms, beach dunes and the like are adjacent wetlands. The terms bordering, contiguous or neighboring are not defined within the regulations. Adjacent wetlands are those which form the border of or are in reasonable proximity to other waters of the United States. A wetland may be adjacent even without a direct or indirect surface connection to other waters of the United States.
JA 2293-94. In Part III of the opinion, this instruction is found to be erroneous because of its concluding sentence: “[a] wetland may be adjacent even without a direct or indirect surface connection to other waters of the United States.”
No one argues that adjacency can exist absent some “direct or indirect” connection between a wetland and another water of the United States. Hence, the fault in this sentence, if any, must be that it includes the word “surface.”2 Or put another way, Part III concludes that there must be a surface connection between a water of the United States and a wetland in order for the wetland to be adjacent to a water of the United States. This view seems to rest on a statement in Riverside Bayview Homes that the wetlands there at issue “actually abut[ted] on a navigable waterway” (p. 10, supra, citing 474 U.S. at 135, 106 S.Ct. at 463) and that, therefore, Riverside Bayview Homes requires a surface connection as a condition to adjacency. For several reasons, I submit that this view of Riverside Bayview Homes is amiss of the mark.
First, although the quoted text from Riverside Bayview Homes mentions that the wetlands at issue actually abutted a navigable waterway, neither that language nor the decision as a whole equates actual abuttment on a navigable waterway with adjacency. And, to suggest that it does is to ignore the remainder of the opinion and its principal thrust.
In Riverside Bayview Homes, the respondent’s property, in fact, was in a wetland. Part of that wetland actually abutted a navigable waterway and was frequently inundated by its overflow. However, the part of respondent’s property which spawned the litigation acquired its wetland qualities not from the inundation by surface water from the navigable waterway, but from groundwater saturation. Riverside Bayview Homes, 474 U.S. at 125, 130, n. 7, 106 S.Ct. at 458, 460-61, n. 7. It was, indeed, that part of the wetland which lay at the core of the opinion on the issue under review.3 Of course, if there was no inundation of that part of the wetland, then there was no surface connection between it and the navigable waterway. Thus, notwithstanding that one part of the wetland abutted the navigable waterway, the opinion as a whole refutes the idea that there must be a surface connection to establish adjacency.
*268Second, in Riverside Bayview Homes, the Supreme Court emphasized that the important jurisdictional connection between waters of the United States and adjacent wetlands was the hydrologic relationship of the aquatic system at issue, rather than the existence of a sur face connection between the waters of the United States and the putatively adjacent wetlands. Riverside Bayview Homes, 474 U.S. at 133-35, 106 S.Ct. at 462-64. That, of course, means that a surface connection is not the sine qua non of adjacency.
Thus, a wetland could be adjacent, for example, where a berm separated the other waters of the United States from the wetland, assuming, of course, the existence of the requisite relation to the aquatic system and hydrologic connection. In that event, it is the osmotic connection (not a surface connection) between the two which supplies a hydrologic nexus sufficient to permit the exercise of federal jurisdiction.
Also, a hydrologic connection could exist where the wetland and the other waters of the United States are connected by an intermittent stream which provides a surface connection only at certain times. For example, in the case of tidal wetlands, a surface connection often exists only at certain times of day. In the west, there are wetlands which are connected to the waters of the United States only at certain times of the year (42 Fed.Reg. 37129 (July 19, 1977)). In neither circumstance is there always a direct or an indirect surface connection. Yet, in both circumstances, there is a hydrologic connection.
Those examples appear to fall within the reach of the explanation in Riverside Bay-view Homes that:
This [an adjacent wetland may be defined as waters under the Act] holds true even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water. The Corps has concluded that wetlands may affect the water quality of adjacent lakes, rivers and streams even when the waters of those bodies do not actually inundate the wetlands. For example, wetlands that are not flooded by adjacent waters may still tend to drain into those waters. In such circumstances, the Corps has concluded that wetlands may serve to filter and purify water draining into adjacent bodies of water, see 33 CFR § 320.4(b)(2)(vii) (1985), and to slow the flow of surface runoff into lakes, rivers, and streams and thus prevent flooding and erosion, see §§ 320.4(b)(2)(iv) and (v). In addition, adjacent wetlands may “serve significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites for aquatic ... species.” § 320.4(b) (2) (i). In short, the Corps has concluded that wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water.
Riverside Bayview Homes, 474 U.S. at 134-35, 106 S.Ct. at 463 (emphasis added). The underscored text would be superfluous if adjacency could be found only upon the existence of a surface connection.
The immediately preceding quotation appeared almost immediately after the Court quoted with approval the statement that “the landward limit of Federal jurisdiction under Section 404 must include any adjacent wetlands that form the border of or are in reasonable proximity to other waters of the United States, as these wetlands are part of this aquatic system.” Riverside Bayview Homes, 474 U.S. at 133-34, 106 S.Ct. at 462-63 (citing 42.Fed.Reg. 37128 (1977) (emphasis added)). “Reasonable proximity” would not require a surface connection as a predicate to adjacency whereas “border” would require such a connection.
For the foregoing reasons, I respectfully submit that it was not error to include, in the instruction on adjacency, the sentence: “A wetland may be adjacent even without a direct or indirect surface connection to other waters of the United States.” This is particularly true considering, as we must, the instructions on that topic as a whole. In my view, the instructions on adjacency, taken as a piece, correctly instructed the jury on what *269it must find to conclude that a wetlands is adjacent to waters of the United States.4
The Sidecasting Issue
In Part IV, Judge Niemeyer’s opinion concludes that the practice known as sidecasting does not, as a matter of law, violate the CWA. For the reasons which follow, I respectfully submit that this interpretation of the CWA is in error.
As to Counts Three, Five and Seven, the proof was that the defendants not only engaged in sidecasting dredge material, but also added great volumes of fill material. The defendants do not argue that the addition of fill material is not, or could not be, regulated by the permit system which is at the core of this case. Hence, as to those three counts, sidecasting of the material produced by excavating the ditches in an effort to drain the wetlands was a peripheral issue. Only in Count One (Parcel L) was the charged offense based solely on sidecasting.
The parties agree that, in this case, side-casting was accomplished by placing into the wetlands the material dredged from the bottom of the wetlands. The nub of the view on sidecasting in Part IV is reflected in: (1) the statement of the issue as “whether ‘sidecast-ing,’ which moves native wetland a few feet to the side of the ditch being created, constitutes a ‘discharge’ within the meaning of the statute” (p. 259, supraJ; and (2) the resolution of the issue by concluding that “[sjide-casting from ditch digging in itself effects no addition of a pollutant____” (p. 260, supra). I respectfully submit that: (1) the statement of the issue is not consistent with the reality of the practice known as sidecasting; and (2) the resolution of the sideeasting issue in Part IV is at odds with the regulations, to which we must give deference, and with the plain meaning of the statute.
The analysis, of course, begins with the statutes. In 33 U.S.C. § 1362(6), “dredged material” is defined as a pollutant (“pollutant” includes “dredged spoil ... biological materials, rock, sand ... discharged into water”). The “discharge of a pollutant” is statutorily defined to mean “addition” of a pollutant to navigable waters (“navigable waters” is defined to mean “waters of the United States”) from any point source. 33 U.S.C. § 1362(12). The CWA does not define “addition,” but the usual meaning of the word “add” is “to join, annex or unite so as to bring about an increase or so as to form one aggregate.” Webster’s Third International Dictionary (1986). “Addition” is commonly understood to be the “act or process of adding.” Id.
The applicable provisions of the CWA do not use the word “sidecasting,” but the controlling regulations, given their plain meaning, define as the discharge of a pollutant what the parties say is sidecasting.5 The regulations define “dredged material” to mean “material that is excavated or dredged from waters of the United States.” 33 C.F.R. § 323.2(c). The “discharge of dredged material” was defined to mean “any addition of dredged material into the waters of the United States.” (emphasis added). 33 C.F.R. § 323.2(d). Reading these two sections of the regulation together, it is rather clear that, without a permit to do so, one may not add into waters of the United States material that is excavated or dredged from, waters of the United States. Hence, if the wetlands here at issue is a “water of the United States” (ie. if the adjacency test is met), then §§ 323.2(e) and (d) clearly prohibit what the parties in this appeal agree to be sidecasting in these wetlands here at issue without a permit.
*270Considering that the principal thrust of the defendants’ position is that the applicable regulations do not prohibit sidecasting without a permit, it is helpful to examine the antecedents of the regulations here at issue. Also, it is well to recall that these regulations, and the permitting system which they establish, have long been the central component of the regulatory scheme to control the discharge of dredged or fill material into waters of the United States.
Much of the regulatory history is irrelevant here, but it is pertinent to note that regulation on this topic began on April 3, 1974, when the Corps published implementing regulations which later were judicially determined to be too limited to effectuate Congressional purpose. NRDC v. Callaway, 392 F.Supp. 685 (D.D.C.1975). Callaway was decided on March 27, 1975, and on May 6, 1975, the Corps, pursuant to judicial instruction, published proposed regulations for comment. 40 Fed.Reg. 19765 (1975). The proposal set forth four alternative proposals, each of which contained definitions of the terms: “navigable water,” “waters of the United States,” and “dredged materials.” 40 Fed.Reg. 19770, 19772, 19774, 19776 (1975).
Over 4,500 comments were received and analyzed. On July 25, 1975, the Corps published interim final regulations governing the issuance of permits for discharge activities in navigable waters. 40 Fed.Reg. 31319-31320 (1975). The regulation defined dredged material “to include any material that is excavated or dredged from any of the waters of the United States ... [as defined].... ” 40 Fed.Reg. 31321 (1975) (emphasis added). Also, the .regulations defined a new term: “discharge of dredged material” as to which the preamble to the new regulations explained:
The term “discharge of dredged material” has been added to the lists of definitions in an effort to clarify the types of activities that fall under this term. Under this definition, therefore, any material which is excavated or dredged from a navigable water and then reintroduced through a point source into a navigable water would fall under this term. The types of activities encompassed by this term would include the depositing into navigable waters of dredged material if it is placed alongside of a newly dredged canal which has been excavated in a wetland area. It would also include maintenance of these canals if excavated material is placed in navigable waters. Also included is the runoff or overflow from a contained land or water disposal area.
40 Fed.Reg. 31321 (1975) (emphasis added).
Because the regulations adopted on July 25, 1975 were “interim final regulations” (which took effect when issued), the Corps provided a further comment period of an additional 90 days. Approximately 2,000 comments were received and the final version of the regulations was issued on July 19, 1977. 42 Fed.Reg. 37122, 37125 (1977). This iteration became the regulations which, with no significant change, are the ones which are at issue in our case.6
This history demonstrates that, from the earliest days of the CWA permit system, the regulations, adopted after extensive comment and consideration, have prohibited the unper-mitted discharge of material dredged from a water of the United States into a water of the United States. That, of course, is precisely the description of sideeasting, at least as it occurred here.
It is true that these early regulations, like the CWA, did not use the term “sidecasting.” However, the November 13, 1986 regulations implementing a new set of practices and procedures to be followed by the Corps in reviewing permits for the discharge of dredged or fill materials into the waters of the United States contains a significant ex*271planation about whether sideeasting requires a permit. 41 Fed.Reg. 31210 (1986). At that time, the Corps had under consideration a proposed modification of 33 C.F.R. § 323.2(d) (previously § 323.2(j), ie., the definition of “discharge of dredged material”). That definition would create a de minimis exception to the permit requirement for material which, during normal dredging operations, fell back into a water of the United States as an unintended, incidental consequence of the dredging. The proposed definition made clear that de minimis discharges were not the “discharge of dredged material.” Thus, de minimis discharges would not require a permit.
In its summary of the comments about the proposed de minimis exception, the Corps explained that: “two commentors expressed concern over the fact that discharge activities such as the sidecasting of dredged material might be considered ‘soil movement’ that was ‘incidental ’ to a ‘normal dredging operation.’ ” 51 Fed.Reg. 41210 (1986) (emphasis added). Obviously, if that were so, then sideeasting could be accomplished without a permit because it would fall under the de minimus exception. The response of the Corps to those comments is quite instructive. As to incidental fallback material, the Corps explained that:
Section 404 clearly directs the Corps to regulate the discharge of dredged material, not the dredging itself. Dredging operations cannot be performed without some fallback. However, if we were to define this fallback as a “discharge of dredged material,” we would, in effect, be adding the regulation of dredging to section 404 which we do not believe was the intent of Congress. We have consistently provided guidance to our field offices since 1977 that incidental fallback is not an activity regulated under section 404. The purpose of dredging is to remove material from the water, not to discharge material into the water. Therefore, the fallback in a “normal dredging operation” is incidental to the dredging operation and de minimus when compared to overall quantities removed.
51 Fed.Reg. 41210 (1986). Then, as to side-casting, the Corps issued the following highly significant statement:
However, we wish to also make it clear that this provision applies only to the incidental fallback occurring during “normal dredging operations” and not to the disposal of the dredged material involved. If this material [the material being dredged] is disposed of in a water of the United States, by sidecasting or by other means, this disposal will be considered to be a “discharge of dredged material” and mil be subject to regulation under section 404.
51 Fed.Reg. 41210 (1986) (emphasis added).
The history of the regulations establishes quite clearly that, from the outset of the implementation of Section 404 throughout the five year period in which these defendants engaged in sidecasting, the regulations prohibited the addition into the waters of the United States any material that was excavated or dredged from the waters of the United States without a permit to do so. Of course that is precisely the conduct in which the defendants engaged in this ease. If there ever was any doubt about the matter, it could hardly have existed after November 1986, two years before the commencement of the activity charged in this case.7
An expert from the Corps confirmed at trial that “discharge of sidecasting material has always been regulated,” beginning when the regulations implementing Section 404 of the statute first took effect.8 JA 557. We are required to show deference to that inter*272pretation so long as it is consistent with the statute.
That, of course, leaves the question whether the regulations exceed the scope of the statutory language “addition of a pollutant” in 33 U.S.C. § 1362(12). Or stated otherwise, are the definitions in 33 C.F.R. § 323.2(c) and (d) reasonable interpretations of the CWA by the agency charged with its enforcement?
The courts, for many years, have interpreted these regulations to prohibit unpermitted redeposit of dredged material which, of course, is sidecasting. For example, in Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 923-25 (5th Cir.1983), the Fifth Circuit, using an earlier, but substantively the same, version of 33 C.F.R. § 323.2(c) and (d) interpreted the term “addition” as used in 33 U.S.C. § 1362(12) to include “redeposit” of material dredged or excavated from the wetland itself. The Fifth Circuit held:
The word “addition,” as used in the definition of the term “discharge,” may reasonably be understood to include “redeposit.” As the district court recognized, this reading of the definition is consistent with both the purposes and legislative history of the statute. The CWA was designed to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), and as discussed in Part II, the legislative history indicates that Congress recognized the importance of protecting wetlands as a means of reaching the statutory goals. See, e.g., 3 Legislative History, at 869 (remarks of Sen. Muskie) (quoted by the district court, 473 F.Supp. at 536). There is ample evidence in the record to support the district court’s conclusion that the landowners’ redepositing activities would significantly alter the character of the wetlands and limit the vital ecological functions served by the tract.9
Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d at 925.
Although on quite different facts than presented here, the Eleventh Circuit took the same view of the statutory term “addition” in United States v. M.C.C. of Florida, Inc., 772 F.2d 1501, 1506 (11th Cir.1985), vacated and remanded on other grounds, 481 U.S. 1034, 107 S.Ct. 1968, 95 L.Ed.2d 809 (1987), readopted in part and remanded in part on other grounds, 848 F.2d 1133 (11th Cir.1988). In M.C.C., one of the questions presented was “whether the redepositing of spoil dredged by the propellers of M.C.C.’s tugs constituted a ‘discharge of a pollutant,’ within the meaning of the Act.” United States v. M.C.C., 772 F.2d at 1506. The Eleventh Circuit decided that redeposit was the discharge of a pollutant and, in so doing, the Court rejected the same contention made here by the defendants and adopted by the majority opinion in Part IV. Id.
To reach that result, the Eleventh Circuit adopted the construction of the statutory term “addition” used by the Fifth Circuit in Avoyelles because redeposit of “spoil dredged up by the tug’s propellers onto the adjacent sea grass beds clearly disturbs the ‘physical and biological integrity’ of the subject areas.” Id. (citing 33 U.S.C. § 1251).
M.C.C. was remanded by the Supreme Court because of the decision in Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987), which required a jury trial on issues of this sort. However, Tull did not affect the substance of the decision in M.C.C.; and therefore, on remand, the Eleventh Circuit affirmatively readopted all other aspects of its original decision, including its interpretation of the term “addition.” United States v. M.C.C. of Fla., Inc., 848 F.2d 1133-34 (11th Cir.1988).10
The Ninth Circuit followed Avoyelles and M.C.C. in Rybachek v. EPA, 904 F.2d 1276, 1285 (9th Cir.1990). In Rybachek, the Ninth *273Circuit was confronted with a gold mining practice by which miners “extracted dirt and gravel in and around waterways” and “discharge[d] the dirt and other non-gold material into the water” after extracting the gold. That practice, of course, is the functional equivalent of the practice of sidecasting. The Ninth Circuit held:
The term “pollutant” thus encompasses the materials segregated from gold in placer mining. Congress defined “discharge” as any “addition [ ] to navigable waters from any point source.” 33 U.S.C. § 1362(12) (1982). Because, under this scenario, the material discharged is coming not from the streambed itself, but from outside it, this clearly constitutes an “addition.”
And on the other hand, even if the material discharged originally comes from the streambed itself, such resuspension may be interpreted to be an addition of a pollutant under the Act. See Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 923 (5th Cir.1983) (stating that “[t]he word ‘addition,’ as used in the definition of the term ‘discharge,’ may reasonably be understood to include ‘redeposit’”), later proceeding, 786 F.2d 631 (5th Cir.1986) (concerning attorneys’ fees); United States v. M.C.C. of Florida, Inc., 772 F.2d 1501, 1506 (11th Cir.1985) (action of digging up sediment and redepositing it on sea bottom by boat propellers constitutes an addition of pollutants), vacated and remanded on other grounds, 481 U.S. 1034, 107 S.Ct. 1968, 95 L.Ed.2d 809 (1987), readopted in part and remanded on other grounds, 848 F.2d 1133 (11th Cir.1988) (interpreting Supreme Court’s action as affecting only a different part of the original opinion), reh’g granted in other part, 863 F.2d 802 (11th Cir.1989). We will follow the lead of the Fifth and Eleventh Circuits and defer to the EPA’s interpretation of the word “addition” in the Clean Water Act. See Chevron U.S.A. Inc. [v. Natural Resources Defense Council, Inc.], 467 U.S. [837] at 844, 104 S.Ct. [2778] at 2782[, 81 L.Ed.2d 694 (1984) ]; see also [EPA v.] National Crushed Stone Ass’n, 449 U.S. [64] at 83, 101 S.Ct. [295] at 307[, 66 L.Ed.2d 268 (1980) ] (stating that “this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration”) (quotation omitted).
Rybachek v. EPA 904 F.2d at 1285.11
As the regulatory history explains and as was true here, dredging or excavating, whether in the bed of a river or in a wetland, involves disturbing the soils into which the excavation or dredge reaches. When the extracted material is moved, its contents are released in the waters into which that material is placed (whether deep water as in a river channel or shallow water as in the wetlands at issue here). The contents of the excavated or dredged material then becomes a part of the receiving water to which the extracted material is added. And, the formerly buried material (from the excavation or dredge) is united with the nearby surface of the bottom or wetland where it is deposited following excavation or dredging.
Hence, according to the usual meaning of the term “addition,” the sub-surface material extracted by the excavation or dredging is added to the water and to the surface material into which the sub-surface material is deposited upon the act of sidecasting. Whether that which is thusly discharged is highly toxic kepone laying a few inches beneath the silted over bed of the James River or perhaps not so toxic fertilizer, biological material, rocks, or sand from the bottom of a wetland, a pollutant is added to the waters. Here, there is evidence from which the jury could have found that much, if not all, of the sidecasting occurred while there was water in the wetlands because much, if not all of, the sidecasting occurred during the effort to drain the wetlands for development. There, of course, is evidence on the other side of that issue.
Part IV of Judge Niemeyer’s opinion avoids conflict with the regulations and with *274the plain meaning of the statutory term “addition” by redefining sidecasting as something which it is not — a practice “which moves native wetland a few feet to the side of the ditch being created.” (p. 259, supra). That, however, is not sidecasting because sidecasting involves not the movement of wetland, but the movement of dirt excavated from the wetland and placing it into the water which covers the floor of the wetland nearby the excavation and onto the floor of the wetland at the point of deposit. In so doing, Part IV misapprehends the real issue because, under 33 U.S.C. § 1362(12), the necessary determination is not whether sidecast-ing moves a native wetland but whether the practice of excavating and movement adds a pollutant to the waters of the United States. Sidecasting, I respectfully suggest, does precisely that.
To illustrate the point, we should assume, for simplicity, that the wetland here is a water of the United States (ie., that the adjacency test is met) and that the method of excavation is the use of a baekhoe (the method used by the defendants). To accomplish the excavation, the bucket of the baekhoe scoops up all the surface and sub-surface soils and their contents. When the excavating bucket is emptied by dumping its contents in the wetlands alongside the excavated hole, there are two results: (1) some of the soils, surface and sub-surface and whatever is in them, are released into the water; and (2) some of the excavated soils are joined with the surface soil at the place of deposit alongside the excavated hole. The flow of water continues slowly to release some more of the soil and its contents. Other parts of the dredged material becomes joined with the floor of the wetland at the point of deposit. Even if we assume that the soils are free of any chemical or biological contaminants, they are nonetheless pollutants under the statute and the regulations and they are released into the water. If, as is often true, the soil contains chemicals or biological contaminants, they too are released into the water. In either event, pollutants have been added to the waters of the United States.12
In this ease, the excavation occurred in a wetland which, in some parts, had water as deep as one to two feet and, in other parts, water that was not nearly so deep. I see no material difference if the process occurs in a wetland which, at the time of excavation, is in one of its periodic dry states, assuming, of course, that the wetland qualifies as a water of the United States.13 Nor, if the water of the United States in which the excavation occurred was a lake with a lowered water level created during the generation of electricity or a tidal wetland or river at ebb tide, would the result be different. In any of those circumstances, if the place of excavation qualifies as a water of the United States, temporary fluctuations in the hydrologic relationship in the aquatic system would not convert the proscribed activity into a legitimate one.
The focus of Part IV of Judge Niemeyer’s opinion is on the perceived rather innocuous nature of the soil, but that, I think, is not relevant because the statute defines dredge spoil and excavated soils as pollutants, and for good reason. The beds of rivers and streams and the bottoms of wetlands can, and often do, contain chemical and biological pollutants that are covered over by silt so that, even if the surface soil is innocuous (and even if it were not a pollutant by statute), the contents of the sub-surface soil is dangerous if disturbed.
For example, at the location where Allied Chemical Corp. discharged kepone into the James River years ago, excavation now by the use of sidecasting could result in the release of a toxic chemical (kepone) into the waters of the United States (the James River). This is but one example of daily reality in the environmental regulatory world. The *275regulatory agencies are far better equipped to deal with these circumstances than are the courts; and, for that reason, the courts are required to defer to reasonable judgments made by regulatory agencies within the scope of the charter which Congress has given them. With respect, that is what I would do here.
Another indicia of the flaw in the analytical structure of Part IV is found in the use of the term “native wetland” to describe what is moved by sidecasting. A wetland is defined as:
(c) The term “wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.
33 C.F.R. § 323.2(e). The Supreme Court sustained that definition as valid in Riverside Bayview Homes. Under the regulation, a wetland is defined as an area with certain characteristics. It is not a material (soil or otherwise) which is susceptible of being moved.
If Part TV had accepted the definition of sideeasting established by the record, the statute and the regulations, the analytical flaw in Part TV would be obvious because sidecasting involves the placing of dredged material from a water of the United States into a water of the United States (which, of course, is a discharge and that which is discharged is dredged material which is a pollutant). By redefining sidecasting, however, Part IV is able to avoid coming to grips with the plain meaning of the controlling terms.
For the foregoing reasons, I would conclude that sidecasting is a proscribed activity within the meaning of “addition” under 33 U.S.C. § 1362(12).
. Joint Appendix, pp. 640, 1471, 1474, 1478, 1492, 1513 (hereafter cited JA_).
. A review of the defendants’ briefs and scrutiny of the instructions and related arguments presented in the District Court causes one to doubt whether the defendants actually contend that this single sentence renders defective the instruction on adjacency. Nonetheless, because Part III views that question as central to the adjacency issue, it will be assumed that the defendants ascribe to that single sentence the important position it is given in Part III.
I read the defendants’ argument on the adjacency issue to be that, as a matter of law, these wetlands were too distant from a navigable water to be adjacent. I agree with the majority that, at least on this record, adjacency is a question of fact to be decided by the jury.
. "Our review is limited to the question whether it is reasonable ... for the Corps to exercise jurisdiction over wetlands adjacent to but not regularly flooded by, rivers, streams, and other hydrographic features more conventionally identifiable as 'waters.' ” Riverside Bayview Homes, 474 U.S. at 131, 106 S.Ct. at 461.
. However, considering that a new trial will be required for other reasons, I would agree that the jury should be given the definition of adjacent which was sanctioned by the Supreme Court in Riverside Bayview Homes, as augmented by the regulations which the Court there approved, without any reference to surface connection, direct or indirect. Also, it would seem appropriate to provide the jury with the meanings of the terms “bordering,” "contiguous” and "neighboring.” For that, the second paragraph of the defendants’ Requested Instruction No. 41 would be adequate. JA 2181.
. The version of those regulations which were in effect from January 1988 to August 31, 1993 (the inclusive dates of the activity charged in Counts One, Three, Five and Seven) is found in 33 C.F.R. § 323.2(c) and (d), as promulgated in 51 Fed.Reg. 41232, November 13, 1986.
. The preamble to the 1977 iteration of the regulations contains a good summary of their course from promulgation in 1974 until 1977. 42 Fed. Reg. 37122-124 (1977). There is no need to repeat that summary here, but it is significant to note that the majority of the comments received about the July 25, 1975 interim regulations related to the definitions of the terms “navigable waters," "dredged material,” and "fill material.” 42 Fed.Reg. 37126 (1977).
The regulations were once again revised in 1982, but these regulations did not affect the definitions of "dredged material” or the "discharge of dredged material.” 47 Fed.Reg. 31794 (1982).
. As the defendants point out, on September 24, 1993, the regulations were revised. 33 C.F.R. § 323.2(d) (1993) and this version specifically uses the word "redeposit” to augment the word "addition.” The defendants contend that this change is proof positive that sidecasting was not previously an activity requiring a permit. Considering the regulatory history outlined above, I do not find that argument persuasive.
. The substance of the 1982 version of the regulations is identical to those which were in effect in 1986 but they appeared as 33 C.F.R. § 323.2(1) and (j) respectively. (47 FR 31810 July 22, 1982).
. See Avoyelles I, 473 F.Supp. at 533-35 (quoting extensively from the Corps' regulations, 33 C.F.R. Sections 320.4(b)(1), (2), (3), & (4)).
. Both parties petitioned for rehearing which was granted to relieve one party of responsibility for costs but was otherwise denied. United States v. M.C.C. of Florida, Inc., 863 F.2d 802 (11th Cir.1989). Following remand to the district court the case was once again appealed to the Eleventh Circuit in United States v. M.C.C. of Florida, Inc., 967 F.2d 1559 (11th Cir.1992). That decision did not affect the earlier interpretation of the term "addition” to mean redeposit.
. Support for the government’s interpretation of the applicable regulations is also provided by United States v. Huebner, 752 F.2d 1235, 1241-42 (7th Cir.1985), by United States v. Brace, 41 F.3d 117 (3d Cir.1994), and by United States v. Pozsgai, 999 F.2d 719 (3d Cir.1993). However, none of these three decisions is directly on point.
. Part IV, correctly I think, concludes that the district court did not err in defining the term "pollutant” to include dredge spoil, soil, chemical and biological material.
. The defendants presented evidence that some of the wetlands had been drained before the sidecasting occurred. The jury was entitled to reject that view because the government offered evidence to the contrary, but I do not see that as an issue in any event because the defendants used sidecasting to effectuate the draining, and some of that took place during the period at issue.