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National Association of Home Builders v. United States Army Corps of Engineers

March 26, 2008

NATIONAL ASSOCIATION OF HOME BUILDERS, PLAINTIFF,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, ET AL., DEFENDANTS,



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 10

MEMORANDUM OPINION 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,*fn1 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.*fn2 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 ...


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