P & V Enterprises v. U.S. Army Corps of Engineers, Civ.A. No. 1:05-cv-1579 (RBW).

Citation466 F.Supp.2d 134
Decision Date19 December 2006
Docket NumberCiv.A. No. 1:05-cv-1579 (RBW).
PartiesP & V ENTERPRISES, et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.
CourtUnited States District Courts. United States District Court (Columbia)

John Andrews Hodges, Eric S. Andreas, Wiley Rein & Fielding, LLP, Washington, DC, for Plaintiffs.

Eileen T. McDonough, U.S. DOJ-Environmental Defense Section, Washington, DC, for Defendants.

MEMORANDUM OPINION

WALTON, District Judge.

P & V Enterprises ("P & V"), Friendly Valley Equestrian Homes ("FVE"), SCC Acquisitions, Inc. ("SCC"), and SunCal Martinville LLC ("SunCal") (collectively "the plaintiffs") bring this action against the United States Army Corps of Engineers ("USACE" or "the Corps") and Lieutenant General Carl A. Strock, Commander and Chief of Engineers (collectively "the defendants"), challenging the facial validity of USACE regulation 33 C.F.R. § 328.3(a)(3) (2006) and seeking injunctive and declaratory relief under the federal question statute, 28 U.S.C. § 1331 (2000), and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02 (2000). Second Amended Complaint ("Compl.") at 1, 11-13. Specifically, the plaintiffs argue that § 328.3(a)(3) is "facially invalid because [it] exceed[s] the Corps' statutory authority as limited by the Commerce Clause of the [United States] Constitution." Id. at 1. Currently before the Court is the defendants' motion to dismiss the plaintiffs' complaint for lack of subject-matter jurisdiction ("Defs. Mot.").1 Because the Court concludes that the plaintiffs' facial challenge to § 328.3(a)(3), without an accompanying as-applied challenge, is barred by the six-year statute of limitations imposed upon "every civil action" filed against the United States, 28 U.S.C. § 2401(a) (2000), it grants the defendants' motion and dismisses the plaintiffs' complaint without prejudice.

I. Factual Background

The Clean Water Act ("CWA"), first enacted in 1972, establishes a comprehensive statutory program "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a) (2000). To that end, the CWA prohibits the discharge of pollutants into the navigable waters of the United States unless specifically authorized by a permit issued pursuant to the CWA's statutory scheme. See 33 U.S.C. §§ 1311(a) (prohibiting pollutant discharges), 1344(a) (describing the issuance of permits) ("Section 404(a)"), 1362 (defining statutory terms). Under the CWA, "navigable waters" are defined as "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7).

Section 404(a) of the CWA delegates to the Corps, as an agency of the United States, "[the] authority to issue permits for the discharge of dredged or fill material into the navigable waters at specified disposal sites." Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 163, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) ("SWANCC") (quoting 33 U.S.C. § 1344(a)) (internal quotation marks omitted). Through the evaluation of permit applications, the Corps is authorized to regulate a variety of activities pertaining to the nation's waters. 33 C.F.R. § 320 et seq. (2006); see also 33 C.F.R. § 323 et seq. (2006) (implementing Section 404(a)). In 1986, pursuant to that authority, the Corps promulgated a regulation "defin[ing] the term `waters of the United States' as it applies to the jurisdictional limits of the authority of the Corps of Engineers under the Clean Water Act." 33 C.F.R. § 328.1; see 51 Fed.Reg. 41,206, 41,250 (Nov. 13, 1986). This regulation defines the term "waters of the United States," as used in 33 U.S.C. § 1362(7), to mean, inter alia:

(3) All ... waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters

(i) Which are or could be used by interstate or foreign travelers for recreational or other purposes;

(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

(iii) Which are or could be used for industrial purpose by industries in interstate commerce.

33 C.F.R. § 328.3(a)(3) (emphasis added). Tributaries of such waters are also included within this regulatory definition. 33 C.F.R. § 328.3(a)(5).

To "clarify the scope of the Section 404 permit program," the Corps further noted in its preamble to the promulgation of § 328(a)(3) that the definition of "waters of the United States" also included "waters ... [w]hich are or would be used as habitat by birds protected by Migratory Bird Treaties; ... other migratory birds which cross state lines; or ... endangered species." Fed.Reg. 41,206, 41,216, 41,217 (Nov. 13, 1986). In 2001, however, the Supreme Court's decision in SWANCC v. U.S. Army Corps of Eng'rs invalidated this "Migratory Bird Rule," holding that the Corps' promulgation of the rule improperly "push[ed] the limits of congressional authority" and "raise[d] significant constitutional questions" under the Commerce Clause. SWANCC, 531 U.S. at 173, 121 S.Ct. 675; see id. at 174, 121 S.Ct. 675 (finding that to permit the Corps "to claim federal jurisdiction over ponds and mudflats falling within the `Migratory Bird Rule' would result in a significant impingement of the States' traditional and primary power over land and water use") (citation omitted); see also Rapanos v. United States, ____ U.S. ____ ____, 126 S.Ct. 2208, 2216-17, 165 L.Ed.2d 159 (2006) (discussing SWANCC.)

In the wake of SWANCC, the Corps and the Environmental Protection Agency issued "an advanced notice of proposed rulemaking (ANPRM) in order to obtain early comment on issues associated with the scope of waters that are subject to the [CWA]." 68 Fed.Reg., 1991, 1991 (Jan. 15, 2003); see generally 68 Fed.Reg. 1991, 1991-98 (Jan. 15, 2003). The ANPRM sought public and professional input on "the definition of `waters of the United States' ... [and] the implications of the SWANCC decision for jurisdictional decisions under the CWA" so that the agencies might "develop proposed regulations that will further the public interest by clarifying what waters are subject to CWA jurisdiction." 68 Fed.Reg. 1991, 1991 (Jan. 15, 2003). The agencies further stated that "[t]he input received by the public in response to [the] ANPRM will be used ... to determine the issues to be addressed and the substantive approach for a future proposed rulemaking addressing the scope of CWA jurisdiction." Id. (emphasis added). Finally, the intra-agency guidance document attached as an appendix to the ANPRM observed that "in light of SWANCC, it is uncertain whether there remains any basis for jurisdiction under the other rationales of § 328.3(a)(3)(i)-(iii) over isolated, non-navigable, intrastate waters." Id. at 1996. Notwithstanding this jurisdictional uncertainty and the Corps' professed intention to issue proposed rules regarding the post-SWANCC scope of § 328.3(a)(3), id. at 1991, the Corps "ultimately did not amend its published regulations," Rapanos, ____ U.S. at _____, 126 S.Ct. at 2217. Instead, in December 2003, the Corps issued a press release "announc[ing] that it would not issue a new rule on federal jurisdiction over isolated waters and `reiterated' its commitment to the scope of the present regulations." Pls.' Opp. at 11 (quoting Pls.' Opp., Exhibit B (Dec. 16, 2003 document entitled, "EPA, Corps of Engineers Issue Wetlands Decision") ("Press Release") at 1); see also Press Release at 1 (stating that "[a]fter soliciting public comment to determine if further regulatory clarification was needed, the EPA and the Corps have decided to preserve the federal government's authority to protect our wetlands").2 The Corps therefore continues to assert CWA jurisdiction over all intrastate waters which, through their "use, degradation or destruction[,] ... could affect interstate or foreign commerce."3 33 C.F.R. § 328.3(a)(3).

The plaintiffs brought this action on August 5, 2005, as a facial challenge to § 328.3(a)(3). Compl. ¶¶ 40-43. The plaintiffs are title-holders to approximately 8,000 acres of undeveloped land in the desert area of western San Bernadino County, California, near the City of Barstow (hereinafter "the Barstow Property"). Id. ¶¶ 3-4. Plaintiff SCC, through its control of plaintiff SunCal, plans to develop approximately 7,500 acres of this property as "a master-planned mixed-use community" (hereinafter "the Barstow Project"). Id. ¶ 4. The Mojave River, described by the plaintiffs as "a nonnavigable, isolated, intrastate river ... located entirely within a single inland ... county," id. ¶ 16, is located near the Barstow Property, which "encompasses several [of the river's] nonnavigable ephemeral tributaries," id. ¶ 15. According to the plaintiffs, the Corps has asserted jurisdiction over the Mojave River and its tributaries pursuant to § 328.3(a)(3). Id. ¶ 25-26. Consequently, because the planned `development of the Barstow Property "will have a direct impact on tributaries to the Mojave," the plaintiffs state that they "would be required to obtain a permit from the Corps before proceeding with the Barstow Project." Id. ¶ 15. The plaintiffs claim that this permit requirement "has a direct adverse [effect] on the value of the Barstow Property and adds significant engineering and administrative costs to the project." Id. ¶ 34. Thus, rather than applying for a permit and becoming "wrongly ... saddled with significant costs, delays, and demands of an otherwise inapplicable regulatory regime," id., the plaintiffs ask this Court to find that § 328.3(a)(3) is facially invalid because it "exceed[s] the Corps' statutory congressional authority as limited by the Commerce Clause," id. 1143.

On October 18, 2005, the defendants moved to dismiss this action for lack of subject-matter...

To continue reading

Request your trial
29 cases
  • Smith v. U.S.
    • United States
    • U.S. District Court — District of Columbia
    • October 9, 2007
    ...the jurisdictional nature of sovereign immunity itself, a point this Court recently recognized in P & V Enters. v. U.S. Army Corps of Eng'rs, 466 F.Supp.2d 134 (D.D.C.2006) (Walton, J.). In P & V Enterprises, the defendants moved to dismiss the plaintiffs' constitutional challenge to a Unit......
  • Norton v. Beasley
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • September 30, 2021
    ...of equitable tolling should apply to their facial constitutional challenges. See generally P&V Enterprises v. U.S. Army Corps of Engineers , 466 F. Supp. 2d 134, 149–150 (D.D.C. 2006) (noting the plaintiffs’ failure to "establish a basis on which the limitations period governing their facia......
  • Tunica-Biloxi Tribe of La. v. U.S.
    • United States
    • U.S. District Court — District of Columbia
    • September 22, 2008
    ...Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), as well as the Court's prior decision in P & V Enters v. U.S. Army Corps of Eng'rs, 466 F.Supp.2d 134 (D.D.C.2006) (Walton, J.), this Court concluded that the FTCA's statute of limitations was not jurisdictional in nature and that......
  • Norton v. Beasley
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • September 30, 2021
    ...... us, something that could force the process of receiving owner. ...Brotherhood of. Locomotive Engineers , 482 U.S. 270, 278 (1987))). . . ... See generally P &V. Enterprises v. U.S. Army Corps of Engineers , 466. F.Supp.2d 134, ......
  • Request a trial to view additional results
5 books & journal articles
  • What Wetlands Are Regulated? Jurisdiction of the §404 Program
    • United States
    • Environmental Law Reporter No. 40-4, April 2010
    • April 1, 2010
    ...1-800-433-5120. 4-2010 NEWS & ANALYSIS 40 ELR 10385 CASE OUTCOME P & V Enterprises v. U.S. Army Corps of Engineers , 466 F. Supp. 2d 134 (D.D.C. 2006) Plaintiffs proposed to develop a large mixed-use community and challenged the facial validity of Corps’ regulation 33 C.F.R. §328.3(a)(3) th......
  • What Wetlands Are Regulated? Jurisdiction of the §404 Program
    • United States
    • Wetlands Deskbook Part I. Clean Water Act §404 Programs
    • November 11, 2009
    ...waters” in light of Rapanos. Court held that Kennedy opinion establishes standard. P & V Enterprises v. U.S. Army Corps of Engineers , 466 F. Supp. 2d 134 (D.D.C. 2006) Plaintiffs proposed to develop a large mixed-use community and challenged the facial validity of Corps’ regulation 33 C.F.......
  • List of Case Citations
    • United States
    • Wetlands Deskbook Appendices
    • November 11, 2009
    ...742 F.2d 901, 15 ELR 20030 (5th Cir. 1984) ................................... 47 P & V Enterprises v. U.S. Army Corps of Eng’rs , 466 F. Supp. 2d 134 (D.D.C. 2006) ........................ 29 Palazzolo v. Rhode Island, 533 U.S. 606, 32 ELR 20516 (2001) ...........................................
  • What Wetlands Are Regulated? Jurisdiction of the §404 Program
    • United States
    • Wetlands deskbook. 4th edition -
    • April 11, 2015
    ...in light of Rapanos . Court held that the Kennedy opinion establishes standard. P & V Enterprises v. U.S. Army Corps of Engineers , 466 F. Supp. 2d 134 (D.D.C. 2006) The plaintiffs proposed to develop a large mixed-use community and challenged the facial validity of Corps’ regulation 33 C.F......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT