National Ass'n, Home Buil. v. U.S. Army Corp.

• Decision Date: 03 February 2006
• Docket Number: No. 04-5222.,No. 04-5224.,No. 04-5221.,No. 04-5223.,04-5221.,04-5222.,04-5223.,04-5224.
• Citation: 440 F.3d 459
• Parties: NATIONAL ASSOCIATION OF HOME BUILDERS, Appellant v. U.S. ARMY CORPS OF ENGINEERS et al., Appellees National Stone, Sand and Gravel Association et al., Appellants v. U.S. Army Corps of Engineers et al., Appellees National Wildlife Federation; North Carolina Wildlife Federation; Sierra Club, Appellants v. U.S. Army Corps of Engineers et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 459

440 F.3d 459

NATIONAL ASSOCIATION OF HOME BUILDERS, Appellant v. U.S. ARMY CORPS OF ENGINEERS et al., Appellees National Stone, Sand and Gravel Association et al., Appellants v. U.S. Army Corps of Engineers et al., Appellees National Wildlife Federation; North Carolina Wildlife Federation; Sierra Club, Appellants v. U.S. Army Corps of Engineers et al., Appellees.

No. 04-5221.

No. 04-5222.

No. 04-5223.

No. 04-5224.

United States Court of Appeals, District of Columbia Circuit.

Argued October 14, 2005.

Decided February 3, 2006.

Appeals from the United States District Court for the District of Columbia (No. 01cv00274) (No. 01cv00320).

Rafe Petersen argued the cause for the joint appellants, National Association of Home Builders and National Stone, Sand and Gravel Association et al. Lawrence R. Liebesman, Virginia S. Albrecht, Karma B. Brown, Duane J. Desiderio and Felicia K. Watson were on brief. Ethan Arenson entered an appearance.

John A. Bryson, Attorney, United States Department of Justice, argued the cause for the federal appellees, United States Army Corps of Engineers et al. Greer S. Goldman, Angeline Purdy and Ronald M. Spritzer, Attorneys, United States Department of Justice, were on brief.

Howard I. Fox argued the cause for the environmental appellees/cross-appellants, National Wildlife Federation et al.

M. Reed Hopper was on brief for amicus curiae Pacific Legal Foundation in support of the appellants. Robin L. Rivett entered an appearance.

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

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge.

The appellant organizations, the National Association of Home Builders, National Stone, Sand and Gravel Association, American Road and Transportation Builders Association and the Nationwide Public Projects Coalition, (collectively, Industry) brought these actions in the district court to challenge a regulation jointly promulgated by the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) to implement the Clean Water Act (CWA). See Further Revisions to the Clean Water Act Regulatory Definition of "Discharge of Dredged Material," 66 Fed.Reg. 4550, 4575 (Jan. 17, 2001) (codified at 33 C.F.R. § 323.3 and 40 C.F.R. § 232.2).¹ Section 404(a) of the CWA authorizes the Corps to issue permits to discharge "dredged or fill material" into navigable waters. 33 U.S.C. § 1344(a). Under the Corps' regulations, permits are "required for the discharge of dredged or fill material into waters of the United States." 33 C.F.R. § 323.3(a). The challenged portions of the regulation provide that the Corps will "regard the use of mechanized earth-moving equipment" in waters as resulting in such "a discharge" (requiring a permit) unless "project-specific evidence" shows that the dredging results in "only incidental fallback" and defines "[i]ncidental fallback" as "redeposit of small volumes of dredged material incidental to excavation activity" if the material "falls back to substantially the same place as the initial removal." Id. § 323.2(d)(2)(i), (ii); see also 40 C.F.R. § 232.2(2)(i), (ii). Industry objects to the two cited provisions of section 323.2 on the grounds that (1) the first creates an impermissible rebuttable presumption that all dredging results in unlawful discharge and (2) the second defines "incidental fallback" in terms of volume and thereby exceeds the scope of the Corps' authority under CWA section 404. The district court dismissed the actions for lack of ripeness. Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng'rs, 311 F.Supp.2d 91 (D.D.C.2004). Reviewing the district court's dismissal de novo, Battle v. FAA, 393 F.3d 1330, 1332 (D.C.Cir.2005); Pub. Citizen v. Dep't of State, 276 F.3d 634, 640 (D.C.Cir.2002), we conclude Industry's challenge to the regulation is ripe for review and, accordingly, reverse and remand to the district court.

I.

Section 301 of the CWA generally prohibits "the discharge of any pollutant," 33 U.S.C. § 1311(a), which is defined in relevant respect as "any addition of any pollutant to navigable waters from any point source," id. § 1362(12). The Congress created an exception to the general prohibition for a discharge that is "in compliance with [section 1311] and sections 1312, 1316, 1317, 1328, 1342, and 1344 of [Title 33]." Id. § 1311(a). Section 404 of the CWA (referenced in the statutory exception as section 1344 of Title 33) provides that the Corps "may issue permits, after notice and opportunity for public hearings[,] for the discharge of dredged or fill material into the navigable waters at specified disposal sites." Id. § 1344 (alteration added). In 1986 the Corps issued a regulation which defined "discharge of dredged material" as "any addition of dredged material into the waters of the United States" but stipulated that "[t]he term does not include de minimis, incidental soil movement occurring during normal dredging operations." Final Rule for Regulatory Programs of the Corps of Engineers, 51 Fed.Reg. 41,206, 41,232 (Nov. 13, 1986) (to be codified at 33 C.F.R. § 323.2(d)). Thus, a permit was required only for dredging activity that resulted in a "discharge" under this definition. In 1993, as part of a settlement agreement in North Carolina Wildlife Fed'n v. Tulloch, No. C90-713-CIV-5-BO (E.D.N.C.) (stipulated dismissal Mar. 4, 1992), the Corps and EPA amended the regulation to define "discharge of dredged material" as "any addition of dredged material into, including any redeposit of dredged material within, the waters of the United States," without the de minimis exception. Clean Water Act Regulatory Programs, 58 Fed.Reg. 45,008, 45,035 (Aug. 25, 1993) (codified at 33 C.F.R. § 323.2(d)(1) and 40 C.F.R. § 232.2(1); emphasis added).² This expanded definition of "discharge" in the regulation, commonly called the "Tulloch Rule" or "Tulloch I," broadened the scope of activity for which a dredging permit was required.

Industry trade associations immediately filed an action challenging the amended definition and the district court issued a decision invalidating the regulation. Am. Mining Cong. v. U.S. Army Corps of Eng'rs, 951 F.Supp. 267 (D.D.C.1997). On appeal, this court affirmed the district court, concluding that "the straightforward statutory term `addition' cannot reasonably be said to encompass the situation in which material is removed from the waters of the United States and a small portion of it happens to fall back." Nat'l Mining Ass'n v. U.S. Army Corps of Eng'rs, 145 F.3d 1399, 1404 (D.C.Cir.1998). We explained that, "[b]ecause incidental fallback represents a net withdrawal, not an addition, of material, it cannot be a discharge" and questioned "how there can be an addition of dredged material when there is no addition of material." Id. at 1404 (emphasis original).

In 2000 the Corps and EPA proposed a new rule which added the following language to the definition:

A discharge of dredged material shall be presumed to result from mechanized landclearing, ditching, channelization, in-stream mining, or other mechanized excavation activity in waters of the United States. This presumption is rebutted if the party proposing such an activity demonstrates that only incidental fallback will result from its activity.

Further Revisions to the Clean Water Act Regulatory Definition of "Discharge of Dredged Material," 65 Fed.Reg. 50,108, 50,117 (Aug. 16, 2000) (to be codified at 33 C.F.R. § 323.2(d)(2) and 40 C.F.R. § 232.2(i)). In 2001 the Corps and EPA issued a final rule, known as "Tulloch II," which replaced the rebuttable presumption framework with the following provision:

The Corps and EPA regard the use of mechanized earth-moving equipment to conduct landclearing, ditching, channelization in-stream mining or other earth-moving activity in waters of the United States as resulting in a discharge of dredged material unless project-specific evidence shows that the activity results in only incidental fallback. This paragraph (i) does not and is not intended to shift any burden in any administrative or judicial proceeding under the CWA.

66 Fed.Reg. at 4575 (codified at 33 C.F.R. § 323.2(d)(2)(i) and 40 C.F.R. § 232.2(2)(i) (emphasis added)). The final rule further added a definition of "incidental fallback" (with examples):

Incidental fallback is the redeposit of small volumes of dredged material that is incidental to excavation activity in waters of the United States when such material falls back to substantially the same place as the initial removal. Examples of incidental fallback include soil that is disturbed when dirt is shoveled and the back-spill that comes off a bucket when such small volume of soil or dirt falls into substantially the same place from which it was initially removed.

Id. (codified at 33 C.F.R. § 323.2(d)(2)(ii) and 40 C.F.R. § 232.2(2)(ii) (emphasis added)).

On February 6, 2001 Industry filed this action under the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., (APA) challenging "Tulloch II" as exceeding the Corps' and EPA's statutory authority.³ In a decision dated March 31, 2004, the district court (treating the agencies' summary judgment motion as a motion to dismiss) granted the motion, concluding that Industry's challenge was not ripe because (1) the issues would not be fit for review until the Corps actually applied them in concrete factual situations and (2) delaying review would impose no hardship on Industry members. Industry filed timely notices of appeal of the order of dismissal.

II.

"Ripeness is a justiciability doctrine designed `to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by...