Nat. Ass'n of Home Builders v. U.S. Army Corps

• Citation: 297 F.Supp.2d 74
• Decision Date: 24 November 2003
• Docket Number: No. CIV.00-379(RJL).,CIV.00-379(RJL).
• Parties: NATIONAL ASSOCIATION OF HOME BUILDERS et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS et al., Defendants.
• Court: U.S. District Court — District of Columbia

297 F.Supp.2d 74

NATIONAL ASSOCIATION OF HOME BUILDERS et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS et al., Defendants.

No. CIV.00-379(RJL).

United States District Court, District of Columbia.

November 24, 2003.

COPYRIGHT MATERIAL OMITTED

Rafe Petersen, Lawrence R. Liebesman, Rafe Petersen, Holland & Knight, L.L.P., Washington, DC, Virginia Swisshelm Albrecht, Hunton & Williams, Washington, DC, for Plaintiffs.

Christopher Peak, U.S. Department of Justice, Washington, DC, Eileen T. McDonough, Martin F. McDermott, Silvia Sepulveda-Hambor, Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants.

Memorandum Opinion and Order

LEON, District Judge.

Before the Court are the parties' cross-motions for summary judgment. In these three consolidated cases, the plaintiffs¹ challenge nationwide permits ("NWPs") issued under Section 404(e) of the Clean Water Act ("CWA") by the defendant U.S. Army Corps of Engineers ("Corps") in March 2000 and January 2002. After considering the parties motions and the opposition thereto, the Court dismisses the plaintiffs' claims for lack of jurisdiction because the agency action setting NWPs is not a final agency action subject to review.

I. Background

Congress enacted the Clean Water Act ("CWA") to "restore and maintain the chemical, physical, and biological" of the nation's waters. 33 U.S.C. § 1251(a). To that end, the CWA prohibits a party from discharging pollutants, such as dredged or fill material, into navigable waters of the United States. Id. § 1311(a). Under the CWA, however, the U.S. Army Corps of Engineers ("Corps") is authorized to allow such discharges through the issuance of permits, both general and individual. Id. § 1344. The purpose of general permits, including nationwide permits ("NWPs"), issued under CWA Section 404(e) is to allow projects that cause minimal environmental impact to go forward with little delay or paperwork. 33 C.F.R. § 330.1(b) (explaining that general permits are "designed to authorize with little, if any, delay or paperwork certain activities having minimal impacts"). If a proposed activity meets the conditions for general permits, it need not subject itself to the individual permit process through which the Corps makes determinations on a case-by-case basis. 33 U.S.C. § 1344. Specifically, Section 404(e) states that

the Secretary may, after notice and opportunity for public hearing, issue general permits on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the Secretary determines 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.

Id. § 1344(e)(1). Thus, the Corps has the discretion to issue such general permits if the polluting activities are similar in nature and will only cause minimal environmental effects. Id. If a party discharges pollutants into navigable water without meeting the conditions of a general permit or otherwise acquiring an individual permit, then the party can be subject to enforcement actions, such as a civil administrative action by the Corps or a civil and criminal proceeding by the Department of Justice. Id. § 1319(g); 33 C.F.R. §§ 326.5, 326.6.

For five-year intervals since 1977 the Corps has been issuing NWPs, including the most widely used permit, NWP 26. 61 Fed.Reg. 65,893.² Before the 2000 changes to the NWPs at issue in this litigation, NWP 26 authorized discharges affecting up to ten acres of waters without a party having to acquire an individual permit, and required that a party notify a Corps' district engineer of any discharges causing loss or substantial adverse modification of one to ten acres of wetlands (this second requirement is known as a "preconstruction notification"). On June 17, 1996, the Corps proposed reissuing many of the NWPs, including NWP 26, which was to expire on January 21, 1997. On December 13, 1996, the Corps reissued NWP 26 for a period of two years, with somewhat different conditions. 61 Fed.Reg. 65,874, 65,877, 65,891, 65,895. In July 1998, the Corps published its proposed replacement permits, and extended the term of NWP 26 again. 63 Fed.Reg. 36,040. Following a public comment period in which it received 10,000 comments on the proposal, the Corps issued the final NWP 29 in August 1999, 64 Fed.Reg. 41,175, and set forth a second proposal regarding the other new permits in July 1999. 64 Fed.Reg. 39,252. On March 9, 2000, after considering even more comments, the Corps issued the permits that replaced NWP 26. 65 Fed.Reg. 12,818.

Overall this process resulted in five new NWPs (known collectively as "Replacement Permits"), modification of seven NWPs, two new General Conditions ("GCs"), and modification of nine existing GCs. These changes to the NWPs process authorized many of the same activities allowed under NWP 26, but the new and modified NWPs were activity-specific. 65 Fed.Reg. 12,818. Among the controversial changes, the Corps narrowed the maximum per-project acreage impact at a half of an acre instead of ten acres, and preconstruction notification was required for impacts greater than one-tenth of an acre instead of one acre.³ The new NWPs became effective on June 7, 2000, and NWP 26 expired the same day. 65 Fed.Reg. 14,255.

NAHB's complaint was filed on February 28, 2000, and on March 16, 2000, the NSSGA et al. filed its complaint. The two cases were consolidated on June 15, 2000. The NFIB et al. filed its complaint on June 16, 2000, and was consolidated with the other two cases on September 12, 2000. The plaintiffs argue, inter alia, that the NWPs exceed the Corps' authority under the CWA because the Corps only has jurisdiction over "discharges" of dredged or fill material into "waters of the United States," the NWPs exceed the Corps' authority under the CWA because the Corps can only issue NWPs for categories of activities that are similar in nature and will cause only minimal adverse environmental impacts, the Corps did not conduct a flexibility analysis as required by the Regulatory Flexibility Act, and the NWPs violated NEPA because the Corps did not conduct a Programmatic Environmental Impact Statement.⁴ On February 15, 2001, all three sets of plaintiffs filed motions for summary judgment, and the defendants and intervenors responded with cross-motions for summary judgment on June 14, 2001.

While the parties' cross-motions for summary judgment were pending, the Corps issued new NWPs and conditions on January 15, 2002. Because the NWPs were reissued, the Court initially assigned the case permitted the parties to submit supplemental complaints and pleadings. While that supplemental briefing was in progress, this case was reassigned to this Court on April 9, 2002. The parties completed their supplemental filings on August 12, 2002.

II. Discussion

The defendants contend that the Court lacks subject matter jurisdiction because the Corps' issuance of NWPs is not a final agency action. The Court concludes, for the following reasons, that the Corps' issuance of the new NWPs and general conditions, while constituting the completion of a decisionmaking process, does not constitute a "final" agency action because no legally binding action has taken place as to any given project until either an individual permit application is denied or an enforcement action is instituted.

Under the Administrative Procedures Act ("APA"), courts can only exercise judicial review over a "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704; see also FTC v. Standard Oil Co., 449 U.S. 232, 238, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980).⁵ In Bennett v. Spear, the Supreme Court explained further that an agency action is final only if it meets two conditions: The first condition is that "the action must mark the consummation of the agency's decisionmaking process—it must not be of a merely tentative or interlocutory nature." 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Reliable Automatic Sprinkler Co. v. Consumer Product Safety Commission, 324 F.3d 726, 731 (D.C.Cir.2003) (stating that the agency decision must be "definitive") (quoting Standard Oil Co., 449 U.S. at 239, 101 S.Ct. 488) (internal quotes omitted). The second condition, which overlaps closely with the requirements for ripeness,⁶ is that "the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154; Reliable Automatic Sprinkler Co., 324 F.3d at 731 (stating the action must have "`direct and immediate ... effect on the day-to-day business' of the parties") (quoting Standard Oil Co., 449 U.S. at 239, 101 S.Ct. 488). In sum, an agency action is only final "to the extent that it imposes an obligation, denies a right, or fixes some legal relationship." Reliable Automatic Sprinkler Co., 324 F.3d at 731 (citing Role Models Am., Inc. v. White, 317 F.3d 327, 331-32 (D.C.Cir.2003)).

The first condition of the finality test—that the agency action be a definite declaration of the agency's policy—is met in this case. After congressionally mandated notice and public hearings, the Corps issued general permits pursuant to Section 404(e). 33 U.S.C. § 1344(e)(1). The Corps set conditions that, if met, allow parties to discharge pollutants, exempting them from the clear-cut prohibition on discharges into navigable waters. In its own words, the Corps set forth the "Final Notice of Issuance and Modification of Nationwide Permits," 64 Fed.Reg. 47,175; 65 Fed.Reg. 12,818, and declared that the "Nationwide Permits are issued," 65 Fed. Reg. 12,885. There can be no doubt that these new NWPs constitute an "action" because review under the APA covers all sorts of agency decisions, see Whitman v. American Trucking Ass'ns, ...