Home Builders, Chicago v. U.S. Army Corps, Engin.

• Decision Date: 10 July 2003
• Docket Number: No. 02-2155.,02-2155.
• Citation: 335 F.3d 607
• Parties: HOME BUILDERS ASSOCIATION OF GREATER CHICAGO, Plaintiff-Appellant, v. U.S. ARMY CORPS OF ENGINEERS, Chicago District, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

335 F.3d 607

HOME BUILDERS ASSOCIATION OF GREATER CHICAGO, Plaintiff-Appellant, v. U.S. ARMY CORPS OF ENGINEERS, Chicago District, et al., Defendants-Appellees.

No. 02-2155.

United States Court of Appeals, Seventh Circuit.

Argued October 18, 2002.

Decided July 10, 2003.

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Johnine J. Brown (argued), Brown Environmental Law Group, Chicago, IL, for Plaintiff-Appellant.

Thomas P. Walsh, Office of the U.S. Atty., Michael R. Fischer (argued), Dept. of Justice Environment & Natural Resources Div., Washington, DC, for Roger A. Gerber, Peter Rowan, Mark A. Roncoli.

Before POSNER, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Too many cooks can spoil the broth, as everyone knows. But that is only if no one pays any attention to what the other ones are doing. Patrons of fine French restaurants enjoy the cooperative efforts of a team of chefs de cuisine, who coordinate both expertise and timing to produce the final product. The same risk of unintended consequences, or worse, chaos, exists within our system of cooperative federalism, in which authorities at the federal, state, and local levels often have overlapping competence. One area where this risk can materialize is in the regulation of the nation's waterways, where federal and local agencies exercise overlapping jurisdiction and operate concurrent permitting programs. This case is about an attempt to make the most of each participants' efforts, through interagency coordination.

This attempt took the form of an Interagency Coordination Agreement (ICA) among the various agencies responsible for water regulation in Lake County, Illinois. The Chicago District of the U.S. Army Corps of Engineers (Corps), the Lake County Stormwater Management Commission (LCSMC), the Lake County Soil and Water Conservation District (LCSWCD), and the U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS) entered into this agreement in late 1999. Their efforts were not greeted with enthusiasm by at least one group, the Home Builders Association of Greater Chicago (Home Builders), which immediately sued the Corps and a number of its officials for injunctive and declaratory relief on the grounds that the ICA impermissibly extends the statutory and regulatory authority of the Corps under the Clean Water Act, 33 U.S.C. §§ 1251 et seq., and the Rivers and Harbors Act, 33 U.S.C. §§ 401 et seq. In addition, Home Builders alleged that the ICA was adopted without sufficient notice and comment under the Administrative Procedures Act (APA), 5 U.S.C. §§ 701 et seq. The district court dismissed the action on the ground that it was nonjusticiable, because Home Builders had not alleged a concrete injury stemming from a final agency action. Home Builders now appeals. We agree with the district court that this suit presents nonjusticiable questions, and we therefore affirm its judgment.

I

Section 404 of the Clean Water Act charges the Corps with regulating certain activities affecting the nation's waterways and wetlands. See 33 U.S.C. § 1344; 33 C.F.R. § 320.2(f). The Act is designed to establish a comprehensive program to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To this end, the Act prohibits the discharge of any pollutant, including dredged or fill material, into the navigable waters of the United States unless the discharge is authorized by a permit. Id. § 1311(a). The Corps is responsible for administering this permitting regime. Id. § 1344. Day-to-day responsibility for administering the § 404 permit program has been further delegated by the Corps to its district and division engineers. 33 C.F.R. § 320.1(a)(2).

The § 404 permit program involves two types of permits. Individual permits are issued on a case-by-case basis, after site-specific documentation and analysis, opportunity for a public hearing, public interest review, and a formal determination. Id. §§ 320.4, 323. The Corps evaluates permit applications in light of Environmental Protection Agency (EPA) guidelines for proper erosion and siltation controls, 40 C.F.R. §§ 230.70-230.77, and also with reference to a range of "public interest factors," 33 C.F.R. § 320.4. General permits, by contrast, are nationwide permits and are designed to expedite review of activities having minimal environmental impacts. Id. § 330. Failure to comply with the terms of the § 404 permitting regime can expose a party to enforcement action, including civil administrative action initiated by the Corps itself, id. § 1319(g), or civil and criminal proceedings upon referral to the Department of Justice, id. §§ 326.5, 326.6. This case concerns the case-by-case permits.

Home Builders would like to challenge the Corps' adoption of the ICA itself, which as we noted seeks to coordinate federal regulation of soil erosion and sediment flows under the § 404 permit regime with the work of various federal — and local-level agencies. The ICA represents the Corps' effort to work effectively with its local counterparts, including the LCSMC, which is the primary permitting authority for the administration and enforcement of the stormwater management provisions of Lake County's Watershed Development Ordinance, and the LCSWCD, which is a special district authorized to promote soil and water conservation associated with land disturbance.

The operative provisions of the ICA designed to achieve this goal set forth the following undertakings on the part of the Corps:

1. Wherever appropriate, as a special condition of a Department of Army authorization, [to] require the permittee to consult with the LCSMC on soil erosion and sediment control plans.

2. At the Corps['] discretion, the Corps will require the permittee to submit a soil erosion and sediment control plan to the LCSMC for review and approval. The Corps will utilize the plan review comments to determine the adequacy of the applicant's soil erosion and sediment control plan. The Corps will provide notification to the applicant and LCSMC to initiate this process.

3. At the Corps['] discretion, as a condition of the Department of the Army permit, the Corps will require the permittee to schedule a preconstruction meeting with the LCSMC to review implementation of the soil erosion and sediment control plans.

4. If the Corps, NRCS, or LCSWCD receives a report of a soil erosion and sediment control issue on a site, the agencies will contact LCSMC. LCSMC will investigate the report and, if necessary, prescribe corrective action to the property owner or coordinate through the Certified Community.... If the LCSMC fails to resolve a violation on an authorized permit site in a timely manner or if LCSMC requests the Corps['] assistance, the Corps will take action as deemed appropriate by the Corps.

5. [The Corps will r]equest that LCSMC conduct onsite inspections during the active construction phase(s) of land development projects to determine whether site development is in compliance with the approved plan and Corps permit requirements (as those requirements relate to soil erosion and sedimentation control) and determine adjustments needed to the approved plan.

ICA, § IV.A.

The ICA expressly provides that all signatories are to remain independent parties, and that no provision of the agreement should be construed to establish an agency or representative relationship among the parties "for any purpose, or in any manner whatsoever." Id. § IV.E.9. Moreover, under the ICA the Corps specifically retains the right to make final decisions regarding opinions, actions, or findings within the Corps' jurisdiction. Id. § IV.E.5.

Between September 21, 1998, and April 27, 2001, Home Builders, an umbrella group of some 1,100 residential developers and construction companies, filed three successive complaints. In each, Home Builders sued for injunctive and declaratory relief on the grounds that the ICA impermissibly extends the statutory and regulatory authority of the Corps under the Clean Water Act and the Rivers and Harbors Act and violates the APA because it was adopted without sufficient notice and comment. The district court dismissed all three complaints for lack of jurisdiction on various ripeness, standing, and finality grounds.

On March 5, 2002, the district court issued its final opinion, in which it considered Home Builders' motion to file a Fourth Amended Complaint. The court evaluated Home Builders' challenges to the provisions of the ICA set forth above in two parts. With respect to the first three provisions, the court found that review was impossible because their discretionary nature precluded a finding of final agency action within the meaning of the APA. The challenge to the fourth and fifth provisions of the agreement failed for lack of a sufficiently concrete injury to support Article III standing. No amendment was going to cure these deficiencies, in the court's view, and so it denied plaintiffs' motion to file the Fourth Amended Complaint and dismissed Home Builders' claims with prejudice. This appeal followed.

II

Our inquiry in this case begins and ends with the question whether Home Builders has presented a justiciable claim. We review this question, which goes to the existence of federal jurisdiction, de novo, looking beyond the pleadings if necessary. Selbe v. United States, 130 F.3d 1265, 1266-67 (7th Cir.1997).

A

We turn first to the district court's dismissal on finality grounds of Home Builders' challenges to the first three provisions of the ICA. Home Builders is relying on the APA for its right to bring this suit. Where, as here, the actions of the agency are not made reviewable by a specific statute, the APA allows judicial review of the actions by federal agencies only over "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704; Abbs v. Sullivan, 963 F.2d 918,...