Nat'l Ass'n Of Home Builders v. United States Army Corp.s Of Eng'rs .

• Decision Date: 30 March 2010
• Docket Number: Civil Action No.: 07-0972 (RMU).
• Citation: 699 F.Supp.2d 209
• 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

699 F.Supp.2d 209

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 30, 2010.

COPYRIGHT MATERIAL OMITTED.

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

Brian Christopher Baldrate, Gibson Dunn and Crutcher LLP, Jessica O'Donnell, Mary M. Whittle, U.S. Department of Justice, Steven M. Ranieri, U.S. Attorney's Office, Aaron S. Colangelo, Benjamin Longstreth, Natural Resources Defense Council, Washington, DC, for Defendants.

MEMORANDUM OPINION

Denying The Plaintiff's Motion for Summary Judgment; Granting the Defendants' Cross-Motion for Summary Judgment

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

The plaintiff, the National Association of Home Builders, 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 challenges under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., a permit issued by the Army Corps of Engineers (“the Corps”), which regulates the discharge of dredged or fill materials into non-tidal upland ditches, as being beyond the authority granted to the defendant under the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq. The court determines that, although the plaintiffs have standing to bring suit, the defendants have not violated the APA; accordingly, the court denies the plaintiff's motion for summary judgment and grants the defendants' cross-motion for summary judgment.

II. FACTUAL & PROCEDURAL BACKGROUND ¹

Pursuant to the CWA, ² in 2007 the Corps issued a series of nationwide permits (“NWPs”) including NWP 46. Mem. Op., 539 F.Supp.2d at 335. NWP 46 “purports to authorize the discharge of dredged or fill materials into upland ditches,” and 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.” Id. (internal citations omitted).

The plaintiff brings a facial challenge to the issuance of NWP 46, arguing that the Corps does not have jurisdiction over non-tidal upland ditches, i.e., the plaintiff maintains that non-tidal upland ditches are not waters of the United States under the CWA. See generally Am. Compl. The plaintiff filed this action on May 24, 2007, see generally Compl., and filed an amended complaint on July 16, 2007, see generally Am. Compl. Specifically, the plaintiff asks the court to declare that the Corps has no authority to regulate non-tidal upland ditches. See generally id. On March 26, 2008, the court denied the defendants' motion for judgment on the pleadings, determining that the plaintiff had demonstrated standing to maintain the suit. See generally Mem. Op., 539 F.Supp.2d 331 (D.D.C.2008). Currently before the court are the parties' cross-motions for summary judgment, see generally Pl.'s Mot. for Summ. J. (“Pl.'s Mot.”); Defs.' Cross-Mot. for Summ. J. (“Defs.' Cross-Mot.”), and an amicus brief filed by the Natural Resources Defense Council (“NRDC”), see generally NRDC Amicus Br. With the motions now fully briefed, the court examines the applicable legal standards and the parties' arguments.

III. ANALYSIS

A. Legal Standard for Standing

Article III of the Constitution limits the jurisdiction of federal courts to cases or controversies. U.S. Const. art. III, § 2, cl. 1. These prerequisites reflect the “common understanding of what it takes to make a justiciable case.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Consequently, “a showing of standing is an essential and unchanging predicate to any exercise of a court's jurisdiction.” Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Put slightly differently, “Article III standing must be resolved as threshold matter.” Raytheon Co. v. Ashborn Agencies, Ltd., 372 F.3d 451, 453 (D.C.Cir.2004) (citing Steel Co., 523 U.S. at 96-102, 118 S.Ct. 1003).

As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing standing. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130; Steel Co., 523 U.S. at 104, 118 S.Ct. 1003; City of Waukesha v. Envtl. Prot. Agency, 320 F.3d 228, 233 (D.C.Cir.2003) (per curiam). The extent of the plaintiff's burden varies according to the procedural posture of the case. Sierra Club v. Envtl. Prot. Agency, 292 F.3d 895, 898-99 (D.C.Cir.2002). At the pleading stage, general factual allegations of injury resulting from the defendant's conduct will suffice. Id. On a motion for summary judgment, however, the “plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts which for purposes of the summary judgment motion will be taken to be true.” Id. at 899 (citing Fed.R.Civ.P. 56); accord Fla. Audubon, 94 F.3d at 666.

To demonstrate standing, a plaintiff must satisfy a three-pronged test. Sierra Club, 292 F.3d at 898 (citing Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130). First, the plaintiff must have suffered an injury in fact, defined as a harm that is concrete and actual or imminent, not conjectural or hypothetical. Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 243 (D.C.Cir.1999) (citing Steel Co., 523 U.S. at 103, 118 S.Ct. 1003). Second, the injury must be fairly traceable to the governmental conduct alleged. Id. Finally, it must be likely that the requested relief will redress the alleged injury. Id. Our court of appeals has made clear that no standing exists if the plaintiff's allegations are “purely speculative[, which is] the ultimate label for injuries too implausible to support standing.” Tozzi v. Dep't of Health & Human Servs., 271 F.3d 301, 307 (D.C.Cir.2001). Nor is there standing where the court “would have to accept a number of very speculative inferences and assumptions in any endeavor to connect the alleged injury with [the challenged conduct].” Winpisinger v. Watson, 628 F.2d 133, 139 (D.C.Cir.1980).

If the plaintiff is an association, it may sue in its own right or on behalf of its constituents. To sue in its own right, the plaintiff “must demonstrate that [it] has suffered injury in fact, including such concrete and demonstrable injury to [its] activities-with [a] consequent drain on [its] resources-constituting ... more than simply a setback to [its] abstract social interests.” Nat'l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C.Cir.1995) (quotations and citations omitted). To sue on behalf of its members, an association may demonstrate standing as long as “its members would have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires members' participation in the lawsuit.” Consumer Fed'n of Am. v. Fed. Commc'ns Comm'n, 348 F.3d 1009, 1011 (D.C.Cir.2003) (quoting Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). Finally, if the plaintiff is suing under the APA, the plaintiff must show that the alleged injury falls within the zone of interests that the statute on which the plaintiff bases the complaint seeks to protect. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Fed'n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897, 900 (D.C.Cir.1996).

B. The Plaintiff Has Standing

In its previous memorandum opinion, the court determined that the plaintiff had sufficiently demonstrated standing to survive the defendant's motion for judgment on the pleadings, noting that “[b]ecause [the plaintiff's] members are regulated by NWP 46[and] their land-use activities must adhere to Corps requirements, ... they are the object of the regulation.” Mem. Op., 539 F.Supp.2d at 339. The defendant again challenges the plaintiff's standing to maintain this suit. Defs.' Cross-Mot. at 12-19. The parties dispute the first step of the standing analysis, ³ i.e., whether the plaintiff has suffered an injury in fact. ⁴ See Pl.'s Mot. at 36-38; Def.'s Cross-Mot. at 13-15.

The plaintiff submits the declaration of Duane Desiderio, its Vice President of Legal Affairs in support of its motion. See Decl. of Duane Desiderio in Support of Pl.'s Mot. (“Desiderio Decl.”). With respect to associational standing, the Desiderio explains that “over 2,500 of [the plaintiff's] members' primary business is the development of real property.” Id. ¶ 5. The plaintiff's “members have developed and will continue to develop land that contains non-tidal upland ditches,” id. ¶ 8, and “must often create upland ditches to control storm runoff during a project's land preparation phase,” id. ¶ 9. In order to satisfy federal and state regulations regarding road building, the plaintiff's members often construct non-tidal upland ditches to drain roads they build to “service the travel needs of the buyers who will live in [the plaintiff's member's] housing projects and other community residents.” Id. ¶ 10. According to the plaintiff, due to NWP 46 its members are left unsure of whether ditches they construct fall under the defendant's jurisdiction and obtaining the “approved jurisdictional determination typically takes at least six months and requires extensive and expensive documents.” Id. ¶ 13. Desiderio explains that the plaintiff's members “have unnecessarily spent time, money and other resources determining whether to obtain and then obtaining permit coverage ... for discharges into non-tidal upland ditches that Congress never intended to be CWA ‘navigable waters.” Id. ¶ 15. Based on this information, the court determines that the...