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National Association of Home Builders v. United States Environmental Protection Agency

August 18, 2010

NATIONAL ASSOCIATION OF HOME BUILDERS ET AL., PLAINTIFFS,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ET AL., DEFENDANTS.



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

Re Document No. 18

MEMORANDUM OPINION GRANTING THE DEFENDANTS'MOTION TO DISMISS

I. INTRODUCTION

This matter comes before the court on the motion to dismiss filed by defendants the Environmental Protection Agency ("the EPA") and the Army Corps of Engineers ("the Corps").*fn1

The plaintiffs, trade associations representing businesses in the housing and construction fields, seek judicial review under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., of the defendants' designation of two reaches of the Santa Cruz River in Arizona as "traditional navigable waters" ("TNWs") under the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 et seq. The defendants move to dismiss for lack of subject matter jurisdiction. As discussed in detail infra Part III.B, because the court determines that the CWA precludes judicial review of the agency determinations at this time, the court grants the defendants' motion to dismiss.*fn2

II. BACKGROUND

A. Statutory Framework

The CWA was promulgated "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The EPA and the Corps share regulatory authority to administer and enforce the CWA. See, e.g., 33 U.S.C. § 1251(d) (providing that, unless otherwise indicated, the EPA's Administrator "shall administer this chapter"); id. § 1344(d), (a) (authorizing the Secretary of the Army, "acting through the Chief of Engineers," to make permitting decisions for the discharge of dredged or fill material into "the navigable waters"). If a property owner is unsure if his or her land contains waters regulated under the CWA, he or she can request a jurisdictional determination ("JD") from the Corps. U.S. Army Corps of Eng'rs, Regulatory Guidance Letter No. 08-02 at 1 (June 26, 2008). An "approved" JD is the Corps' declaration that waters either do or do not fall within federal jurisdiction under the CWA; approved JDs are subject to administrative review. 33 C.F.R. § 331.2. Regulatory jurisdiction under the CWA derives from Congress's commerce power, see Rapanos v. United States, 547 U.S. 715, 724 (2006) (plurality opinion), and waters can fall under that jurisdiction by virtue of their connection to TNWs, see id. at 742.

Property owners must apply for a permit to fill any waters over which the Corps and EPA have jurisdiction under the CWA. See 33 U.S.C. § 1344(a). Unsatisfied permit applicants can challenge permitting decisions in administrative proceedings, see 33 C.F.R. § 331.2, as well as in federal district court, see id. § 331.12; Rapanos, 547 U.S. at 730. If a property owner deposits dredged or fill material into federally regulated waters without a permit, both the EPA and the Corps have a number of tools to address the violation. The EPA can issue a compliance order, see 33 U.S.C. § 1319(a)(3), or the Corps can issue a cease-and-desist order, see 33 C.F.R. § 326.3(c)(1). Alternatively, either the EPA or the Corps can assess administrative penalties. See 33 U.S.C. § 1319(g); 33 C.F.R. § 326.6. The assessment of administrative penalties is subject to judicial review. 33 U.S.C. § 1319(g)(8); 33 C.F.R. § 326.6(l). Finally, both the EPA and the Corps possess authority to initiate enforcement actions in federal district court seeking injunctive relief and monetary penalties. See 33 U.S.C. § 1319(b); 33 C.F.R. § 326.5.

B. Factual & Procedural History

On December 3, 2008, the EPA's Assistant Administrator for Water issued a letter to the Assistant Secretary of the Army for Civil Works, stating that two reaches of the Santa Cruz River were TNWs. Compl. ¶ 3 & Ex. 1 ("EPA TNW Determination") at 1. In this letter, the EPA affirmed earlier determinations made by the Corps' Los Angeles District that the two reaches qualified as TNWs.*fn3 Compl. ¶ 4; EPA TNW Determination at 1.

The plaintiffs commenced this action on March 23, 2009, see generally Compl., alleging that the EPA and the Corps violated the APA's procedural requirements in determining that the reaches were TNWs, id. ¶¶ 58-66. More specifically, the plaintiffs claim that the TNW determinations were either administrative rules, in which case the agencies failed to abide by the APA's rulemaking procedures, or adjudications, in which case the agencies failed to follow the adjudicatory procedures outlined in the APA. Id. The plaintiffs also contend that the TNW determinations were arbitrary and capricious, were unsupported by sufficient evidence and exceeded the agencies' statutory authority. Id. ¶¶ 67-79.

The defendants previously filed a motion to transfer this case to the District of Arizona pursuant to 28 U.S.C. ยง 1404(a), see generally Defs.' Mot. to Transfer, which this court denied, see generally Mem. Op. (Dec. 30, 2009). The defendants then filed this motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). See generally Defs.' Mot. As the motion ...


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