National Ass'n of Home v. US Army Corps

• Decision Date: 29 July 2005
• Docket Number: 04-5011.,04-5010,No. 04-5009,04-5009
• Citation: 417 F.3d 1272
• Parties: NATIONAL ASSOCIATION OF HOME BUILDERS, Appellant v. UNITED STATES ARMY CORPS OF ENGINEERS et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

417 F.3d 1272

NATIONAL ASSOCIATION OF HOME BUILDERS, Appellant v. UNITED STATES ARMY CORPS OF ENGINEERS et al., Appellees.

Nos. 04-5009, 04-5010, 04-5011.

United States Court of Appeals, District of Columbia Circuit.

Argued April 19, 2005.

Decided July 29, 2005.

COPYRIGHT MATERIAL OMITTED

Virginia S. Albrecht argued the cause for the appellants. Karma B. Brown, Duane J. Desiderio, Felicia K. Watson, Lawrence R. Liebesman, Rafe Petersen, Ethan Arenson, David E. Frulla, Andrew D. Herman and Elizabeth A. Gaudio were on brief.

Peter L. Gray, Robin S. Conrad, Richard S. Moskowitz, Alan C. Raul and Brian T. Fitzpatrick were on brief for amici curiae Honorable Donald A. Manzullo et al. Prasad Sharma and Stephen A. Bokat entered appearances.

Greer S. Goldman, Attorney, United States Department of Justice, argued the cause for appellees United States Army Corp of Engineers et al. David C. Shilton, Martin McDermott and Stephanie Tai, Attorneys, United States Department of Justice, were on brief.

Howard I. Fox was on brief for appellees, Natural Resources Defense Council and Sierra Club.

Eliot Spitzer, Attorney General, State of New York, Peter H. Lehner, Philip M. Bein and Tracy Hughes, Assistant Attorneys General, State of New Mexico, were on brief for amici curiae States of New York and New Mexico.

Before: GINSBURG, Chief Judge, and HENDERSON and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge.

The National Association of Home Builders (NAHB) and others¹ (collectively, the appellants) appeal the dismissal of their multi-pronged challenge to the issuance of certain permits by the United States Army Corps of Engineers (Corps) pursuant to section 404(e) of the Clean Water Act (CWA), 33 U.S.C. § 1344. The district court granted summary judgment to the Corps, concluding that it lacked subject matter jurisdiction to entertain any of the appellants' claims because the Corps' issuance of the permits did not constitute "final agency action" subject to judicial review under the Administrative Procedure Act (APA), 5 U.S.C. § 704. See Nat'l Ass'n of Home Builders v. United States Army Corps of Eng'rs, 297 F.Supp.2d 74 (D.D.C.2003), reprinted in Joint Appendix (J.A.) at 146-52. We disagree; the appellants' claims, with one exception, are cognizable. Accordingly, we reverse the district court in part and remand for further proceedings consistent with this opinion.

I.

The CWA aims to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," 33 U.S.C. § 1251(a), by prohibiting the discharge of pollutants into navigable waters of the United States — except, that is, by permit, see id. § 1311(a). The CWA divides the authority to issue permits to discharge pollutants between the United States Environmental Protection Agency and the United States Secretary of the Army, acting through the Corps, conferring on the latter the power to issue permits for discharges of "dredged or fill material" only. Id. § 1344(a). Responsibility for the day-to-day administration of the permitting regime falls to the Corps' district and division engineers. See 33 C.F.R. § 320.1(a)(2).

The Corps issues a permit under section 404 of the CWA either on a class-wide ("general permit") or a case-by-case ("individual permit") basis. 33 U.S.C. § 1344(a), (e). The Corps issues a general permit "on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material." Id. § 1344(e)(1); see also 33 C.F.R. § 323.2(h). Before issuing a general permit for a "category of activities," the Corps must "determine that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment." 33 U.S.C. § 1344(e)(1); see also 33 C.F.R. § 323.2(h)(1). A general permit has a statutorily-limited lifespan — i.e., no longer than five years — and may be revoked or modified if the authorized activities "have an adverse impact on the environment or ... are more appropriately authorized by individual permits." 33 U.S.C. § 1344(e)(2).

The Corps' individual permit process is, by contrast, "a longer, more comprehensive procedure." New Hanover Township v. United States Army Corps of Eng'rs, 992 F.2d 470, 471 (3d Cir.1993). The Corps makes a formal decision on an individual application following site-specific documentation and analysis, public interest review, public notice and comment and, if necessary, a public hearing. See 33 C.F.R. § 320.4; id. §§ 323, 325; see also Home Builders Ass'n of Greater Chicago v. United States Army Corps of Eng'rs, 335 F.3d 607, 612 (7th Cir.2003). If the Corps initially denies an individual application, the applicant may challenge that determination through an administrative appeals process. See 33 C.F.R. § 331.1. Indeed, a disappointed applicant must exhaust his administrative remedies before heading to federal court. See id. § 331.12.

Thus a party desiring to discharge fill or dredged material into our nation's navigable waters may do so in either of two ways. See New Hanover Township, 992 F.2d at 471. If the proposed discharge activity is covered by a general permit, the party may proceed without obtaining an individual permit or, in some cases, even without giving the Corps notice of the discharge. See 33 C.F.R. § 330.1(e)(1) ("In most cases, permittees may proceed with activities authorized by nationwide general permits without notifying the district engineer."); New Hanover Township, 992 F.2d at 471 (discharger may "simply operate under the general permit without informing the Corps in advance unless the general permit in question requires advance approval from the Corps"). On the other hand, if the proposed discharge is not covered by a general permit, the party must secure an individual permit before undertaking the discharge. See 33 C.F.R. § 323.3(a). A party that discharges without meeting the conditions of a general permit or obtaining an individual permit faces both civil and criminal enforcement actions. See 33 U.S.C. § 1319; 33 C.F.R. § 326.5-.6.

This litigation involves several nationwide permits, or NWPs, a species of general permit designed to minimize delays and paperwork for projects with minimal environmental impact. See 33 C.F.R. § 330.1(b). The Corps has issued this kind of permit for five-year intervals since 1977, see Nat'l Ass'n of Home Builders, 297 F.Supp.2d at 77; Public Notice Concerning Changes to Nationwide Permit 26, 63 Fed. Reg. 39,276, 39,277 (July 22, 1998), including the once widely-used but now defunct NWP 26, see Final Notice of Issuance, Reissuance, and Modification of Nationwide Permits, 61 Fed. Reg. 65,874, 65,892 (Dec. 13, 1996) (noting 13,837 activities were authorized by NWP 26 in 1995 alone). There are currently 43 NWPs in force — covering activities ranging from "Single-family Housing" (NWP 29) to "Mining Activities" (NWP 44) to "Cranberry Production Activities" (NWP 34) — that are subject to 27 General Conditions (GCs)² — regarding matters like "Soil Erosion and Sediment Controls" (GC 3) and "Notification" (GC 13). See Issuance of Nationwide Permits; Notice, 67 Fed. Reg. 2020, 2077, 2078-94 (Jan. 15, 2002). In their current version, the assorted NWPs, applicable conditions and relevant definitions span nearly 20 pages in the Federal Register. See id. at 2077-94.

In 1996, the Corps proposed to reissue a number of existing NWPs, albeit with modifications, that were otherwise set to expire on January 21, 1997. See Proposal to Issue, Reissue, and Modify Nationwide Permits; Public Hearing, 61 Fed. Reg. 30,780 (June 17, 1996). As to NWP 26, which, at the time, authorized a party to discharge dredged or fill materials affecting up to ten acres of water into headlands and isolated wetlands without an individual permit and required only notice to a Corps district engineer of any discharge causing loss or substantial adverse modification of one to ten acres of wetlands, the Corps gave public notice of — and sought comment on — proposed changes to its "pre-construction notification" timeline and acreage threshold limits. See id. at 30,783. It also notified the public that it planned to "initiate a process to regionalize" NWP 26 to "further improve its effectiveness." Id.

Following public comment, the Corps decided to replace NWP 26 with "activity-specific" general permits. See Final Notice of Issuance, Reissuance, and Modification of Nationwide Permits, 61 Fed. Reg. 65,874, 65,875 (Dec. 13, 1996). To allow ample time to develop replacement permits, however, it reissued NWP 26 for a two-year period but with more stringent conditions. See id. at 65,877, 65,891, 65,895. In July 1998, the Corps published a proposed suite of activity-specific general permits to replace NWP 26, see Proposal to Issue and Modify Nationwide Permits, 63 Fed Reg. 36,040 (July 1, 1998), and extended, once more, the life of NWP 26 until December 30, 1999 "or the effective date of the new and modified NWPs, whichever comes first," Proposal to Issue and Modify Nationwide Permits; Notice, 64 Fed. Reg. 39,252, 39,260 (July 21, 1999). That same month the Corps also reissued the NWP regarding single-family housing (NWP 29), but reduced the authorized maximum acreage impact from one-half to one-quarter acre. See Final Notice of Modification of Nationwide Permit 29 for Single Family Housing, 64 Fed. Reg. 47,175 (Aug. 30, 1999).

The Corps issued a second proposed set of activity-specific NWPs to replace NWP 26 one year later. See 64 Fed. Reg. at 39,252. In March 2000, following another round of public comment, the Corps promulgated activity-specific permits consisting of five new NWPs and six modified NWPs, all intended to replace NWP 26. See Final Notice of Issuance and Modification of Nationwide Permits, 65 Fed. Reg. 12,818 (Mar. 9, 2000). With...