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

Citation453 F.Supp.2d 116
Decision Date29 September 2006
Docket NumberNo. CIV. 00-379 RJL.,CIV. 00-379 RJL.
CourtUnited States District Courts. United States District Court (Columbia)

Rafe Petersen, Lawrence R. Liebesman, Holland & Knight, L.L.P., Virginia S. Albrecht, Karma B. Brown, Hunton & Williams LLP, Washington, DC, for Plaintiffs.

Martin F. McDermott, U.S. Department of Justice, Washington, DC, for Defendants.


LEON, District Judge.

Before the Court on remand are the parties' Cross-Motions for Summary Judgment. In these three consolidated cases,1 the plaintiffs2 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, the opposition thereto, oral argument, supplemental briefing on the surviving claims, and the record, the Court GRANTS all defendants Cross-Motions for Summary Judgment and DENIES all plaintiffs' Cross-Motions for Summary Judgment.


Congress enacted the CWA to "restore and maintain the chemical, physical, and biological integrity 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 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 ("NWP"), issued under Section 404(e) of the CWA 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 regulate 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 be subjected to the individualized permit process through which the Corps makes determinations on discharges 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 waters 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, beginning in 1977, the Corps has issued NWPs, including the most widely used permit, NWP 26. 61 Fed.Reg. 65,874, 65,893 (Dec. 13, 1996). Before the relevant changes to the NWPs made in 2000, NWP 26 authorized discharges that affected up to ten acres of waters without requiring a party 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 "pre-construction notification"). 61 Fed.Reg. 30,781, 30,783 (June 17, 1996). On June 17, 1996, the Corps proposed reissuing many of the NWPs, including NWP 26, which was to expire on January 21, 1997. Id. at 30,780. On December 13, 1996, the Corps reissued NWP 26 for a period of two years, with somewhat different conditions. 61 Fed. Reg. at 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 (July 1, 1998). Following a public comment period in which it received approximately 10,000 comments on the proposal, 64 Fed.Reg. 39,257 (July 21, 1999), the Corps set forth a second proposal regarding the other new permits in July 1999. See 64 Fed.Reg. 39,252 (July 21, 1999). On March 9, 2000, after considering even more comments, the Corps issued the permits that replaced NWP 26. See 65 Fed.Reg. 12,818. 12.818 (Mar. 9, 2000).

Overall this process resulted in five new NWPs (known collectively as "Replacement Permits"), modification of six existing NWPs, two new General Conditions ("GC"), and modification of nine existing GCs. Id. 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. See id. Among the controversial changes, the Corps narrowed the maximum per-project acreage impact from ten acres to a half acre, and pre-construction notification was required for impacts greater than one-tenth of an acre instead of one acre.4 The new NWPs became effective on June 7, 2000, and NWP 26 expired the same day. 65 Fed.Reg. 14,255, 14,255 (Mar. 16, 2000).

NAHB's complaint was filed on February 28, 2000, and on March 16, 2000, NSSGA filed its complaint. The two cases were consolidated on June 15, 2000. NFIB 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 "pollutants," including 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, that the Corps acted arbitrarily and capriciously in the issuance of the replacement permit NWPs, that the Corps did not conduct a flexibility analysis as required by the Regulatory Flexibility Act ("RFA"), 5 U.S.C. §§ 601 et. seq., and that the NWPs violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et. seq., because the Corps did not conduct a Programmatic Environmental Impact Statement.5 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, on January 15, 2002, the Corps re-issued all existing NWPs and GCs with some modifications. See 67 Fed.Reg.2020 (Jan. 15, 2002). Because the NWPs were re-issued, the Court to which the case was initially assigned 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. On November 26, 2003, this Court ruled that the "Corps' issuance of the new NWPs and GCs, while constituting the completion of a decision-making 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." Nat'l Ass'n of Home Builders, 297 F.Supp.2d at 78. Our Circuit Court, on July 29, 2005, reversed and remanded this Court's ruling on the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 551 et. seq., and RFA claims, and affirmed this Court's dismissal of the NEPA claims. Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng'rs, 417 F.3d 1272, 1289 (D.C.Cir.2005). Specifically, our Circuit Court found that the NWPs issued by the Corps constituted final agency action subject to challenge under the APA, id. at 1281, and that the APA challenge to the NWPs is "ripe for judicial review," id. at 1284. Our Circuit Court also found that the Corps' issuance of the NWPs constituted final agency action in the form of a legislative rule, that plaintiffs' challenge focused on the Corps' compliance with sections 604 and 605 of the RFA, id. at 1285-86, and that the claim was ripe for review, id. at 1286. As the case was remanded to this Court for further proceedings consistent with the ruling of our Circuit Court, supplemental pleadings were filed by the parties, and this Court held oral argument on the remaining claims on January 30, 2006.6 Id. at 1274-75.


I. Summary Judgment

Summary judgment is appropriate when the pleadings and the record demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and the Court draws all reasonable inferences regarding the assertions made in a light favorable to the non-moving party, Biodiversity Conservation Alliance v. U.S. Bureau of Land Mgmt., 404 F.Supp.2d 212, 216 (D.D.C.2005) (citing Flynn v. Dick Corp., 384 F.Supp.2d 189, 192-93 (D.D.C.2005)). "[W]hen ruling on cross-motions for summary judgment, the Court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed." Barr Labs., Inc. v. Thompson, 238 F.Supp.2d 236, 244 (D.D.C.2002) (citing Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir.1975)).

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