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

• Decision Date: 26 March 2008
• Docket Number: Civil Action No. 07-0972(RMU).
• Citation: 539 F.Supp.2d 331
• Parties: NATIONAL ASSOCIATION OF HOME BUILDERS, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.
• Court: U.S. District Court — District of Columbia

539 F.Supp.2d 331

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

Civil Action No. 07-0972(RMU).

United States District Court, District of Columbia.

March 26, 2008.

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Virginia S. Albrecht, Karma B. Brown, Hunton & Williams LLP, Washington, DC, for Plaintiff.

Brian Christopher Baldrate, U.S. Attorney's Office for the District of Columbia, Jessica O'Donnell, U.S. Department of Justice, Steven M. Ranieri, U.S. Attorney's Office, Aaron S. Colangelo, Natural Resources Defense Council, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICARDO M. URBINA, District Judge.

DENYING THE DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

I. INTRODUCTION

The plaintiff, the National Association of Home Builders ("NAHB"), is an organization that represents builders, land developers and remodelers and strives to protect its members' interest in preserving the broadest lawful use of their property. It brings a facial challenge to a permit issued by the defendant,¹ which regulates the discharge of dredged or fill materials into non-tidal upland ditches, as being beyond the authority granted to the defendant by the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387. The defendant moves for judgment on the pleadings, asking the court to dismiss the action on the grounds that the plaintiff lacks constitutional standing. Because the plaintiff has satisfied the pleading requirements for representational standing, and to a lesser extent, for standing in its own right, the court denies the defendant's motion to dismiss.

II. BACKGROUND

A. Statutory Framework

The purpose of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387, is to protect the Nation's resources by prohibiting the discharge of pollutants into navigable waters without a permit. See 33 U.S.C. § 1311(a). The CWA authorizes the Corps to issue permits for the discharge of dredged or fill Materials into navigable waters of the United States. 33 U.S.C. § 1344. The Corps may issue either individual permits on a case-by-case basis or general permits "on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material." Id. at 1344(e)(1). But, it may only issue a general permit "for any category of activities involving discharges of dredged or fill materials 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 effects on the environment." Id. If the Corps issues a general permit, "a party desiring to discharge fill or dredged material into our nation's navigable waters ... May proceed without obtaining an individual permit or, in some cases, even without giving the Corps notice of the discharge." Nat'l Ass'n of Home Builders v. U.S. Army Corps of Engineers, 417 F.3d 1272, 1275 (D.C.Cir.2005) (citations omitted).

B. Factual Background

On March 12, 2007, the Corps issued six new general Nationwide Permits ("NWPs" or "permits"), including NWP 46, which "purports to authorize the discharge of dredged or fill materials into upland ditches." Am. Compl. ¶ 1. NWP 46 governs "non-tidal ditches that: (1) are constructed in uplands; (2) receive water from another water of the United States; (3) divert water to another water of the United States; and (4) are determined to be a water of the United States." Def.'s Mot. to Dismiss ("Def.'s Mot.") at 5 (citing 72 Fed. Reg. at 11,190).

Parties wishing to utilize NWP 46 must provide the Corps with pre-construction notification ("PCN") for their project. Def.'s Mot. at 5 (citing 72 Fed. Reg. at 11,190). To satisfy the PCN requirement, prospective permittees must provide written notice to the district engineer of their project "and must provide general information as well as information specific to the NWP invoked." Def.'s Mot. 6 (citing 72 Fed. Reg. at 11,142). Those submitting a PCN cannot begin work pursuant to NWP 46 until the Corps confirms that the project meets the requirements of the NWP and notifies the party that their activity may proceed. Id. If the Corps does not provide notice within 45 days, the party submitting the PCN may proceed with its activity. Id. Upon reviewing a party's PCN, the Corps may notify it that an individual permit is required. Id. In addition, pursuant to NWP 46, the Corps may conclude that a ditch is not a jurisdictional water of the United States, and accordingly, the party may not need Corps authorization to proceed with its project. Def.'s Mot. at 6 (citing 72 Fed. Reg. at 11,143). The defendant clarifies in its reply that NAHB members may proceed to fill ditches falling outside of the Corps' jurisdiction without submitting a PCN.² Def.'s Reply at 5. This PCN requirement, therefore, only applies to those waters determined to be within the Corps' jurisdiction and seeks to ensure that NWP 46 is used only to authorize discharges into appropriate ditches and that the result is only minimal adverse impact on the environment. Def.'s Mot. at 5 (citing 72 Fed. Reg. at 11,142).

The plaintiff is a national trade association whose members include builders of residential and commercial projects, land developers and remodelers. Id. at ¶ 4. The plaintiff challenges the issuance of NWP 46 pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 551. The plaintiff argues that non-tidal upland ditches are not within the purview of the CWA because, in short, "ditches" fall within the definition of "point source," and "point sources" are "discernable, confined and discrete conveyance[s]," not "navigable waters," Am. Compl. ¶ 14. Moreover, the plaintiff argues, "point sources" cannot constitute "navigable waters" because the statute defines the "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source." Id. (emphasis excluded).

C. Procedural History

The plaintiff filed this action on May 24, 2007 and corrected its complaint on July 16, 2007, bringing suit pursuant to the APA and the CWA. Specifically, the plaintiff asks the court to declare that the Corps has no authority to regulate upland ditches. See generally id. The defendant moved the court to dismiss the action, arguing that the plaintiff lacks constitutional standing. Def.'s Mot. The plaintiff opposes that motion, arguing that it has demonstrated standing sufficient for this stage of the litigation. Pl.'s Opp'n to Def.'s Mot. ("Pl.'s Opp'n").

On August 8, 2007, the Natural Resources Defense Council ("NRDC") moved to intervene, arguing that it "and its members have a significant and protected interest in the proper regulation of discharges into [upland ditches]." NRDC's Mot. to Intervene ("NRDC's Mot.") at 2. On November 6, 2007, the court denied that motion, but it granted NRDC permission to participate in this action as amicus curiae. Mem. Op. (Nov. 6, 2007), 519 F.Supp.2d 89. The court now resolves the defendant's pending motion to dismiss.

III. ANALYSIS

A. Legal Standard for Judgment on the Pleadings

Federal Rule of Civil Procedure 12(c) states that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." See FED. R. CIV. P. 12(c). Under Rule 12(c), the court must accept the nonmovant's allegations as true and should view the facts in the light most favorable to the nonmoving party. See Judicial Watch, Inc. v. Clinton, 880 F.Supp. 1, 7 (D.D.C.1995). The court should grant a motion for judgment on the pleadings if the movant "is entitled to judgment as a matter of law." See Burns Int'l Sec. Servs. v. Int'l Union, 47 F.3d 14, 16 (2d Cir.1995).

B. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1)

Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C.Cir.2004) (noting that "[a]s a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction").

Because "subject-matter jurisdiction is an `Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject-matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The court may dismiss a complaint for lack of subject-matter jurisdiction only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Empagran S.A. v. F. Hoffman-LaRoche, Ltd., 315 F.3d 338, 343 (D.C.Cir.2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

Because subject-matter jurisdiction focuses on the court's power to hear the claim, however, the court must give the plaintiffs factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C.Cir.2003); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001). Thus, the court is not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227,...