National Ass'n of Home Builders v. United States Army Corps of Engineers

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 8, 2011 Decided December 16, 2011

No. 10-5169

NATIONAL ASSOCIATION OF HOME BUILDERS,
APPELLANT

v.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-00972)

Robert R. Gasaway argued the cause for appellant. With
him on the briefs were Jeffrey Bossert Clark, William H.
Burgess, and Aaron L. Nielson.

M. Reed Hopper, James S. Burling, Damien M. Schiff,
and Elizabeth Gaudio were on the brief for amici curiae
Pacific Legal Foundation, et al. in support of appellant.

Aaron P. Avila, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Jessica O'Donnell and Ellen J. Durkee, Attorneys. Lisa E.
 2

Jones, Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney, entered appearances.

Jon P. Devine Jr. was on the brief for amici curiae
Natural Resources Defense Council, et al. in support of
appellees.

Before: HENDERSON, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

Circuit Judge HENDERSON concurs in the judgment.

WILLIAMS, Senior Circuit Judge: Invoking its authority
under § 404(e) of the Clean Water Act (“CWA”), 33 U.S.C.
§ 1344(e), the U.S. Army Corps of Engineers issued a generic
nationwide permit (“NWP 46”) allowing persons to secure
approval for qualifying discharges into “waters of the United
States” without going through the more laborious process of
securing an individual permit. The National Association of
Home Builders (“NAHB”) appeals from the district court’s
dismissal of its challenge to the Corps’s authority to issue the
permit. Although the district court held that the NAHB had
standing to pursue its claim, it ultimately granted summary
judgment for the Corps on the merits, finding that the terms of
the permit survived the NAHB’s legal challenges. Because
we find that the NAHB lacked standing to bring its suit, we
vacate and remand with instructions to dismiss the case.

* * *

The CWA forbids the discharge of pollutants into the
“waters of the United States,” 33 U.S.C. § 1362(7), except
when done pursuant to a valid permit, see id. §§ 1311(a),
 3

1344. The CWA divides the authority to issue such permits
between the Corps and the EPA; the Corps has been granted
the power to issue permits only for discharges of “dredged or
fill material.” Id. § 1344(a).

Permits issued by the Corps fall into two categories:
individual and general. Individual permits are granted on a
case-by-case basis and involve a costly review process, often
requiring extensive documentation regarding the specific site,
public notice and comment, and sometimes a public hearing.
See 33 C.F.R. pt. 325. In contrast, general permits cover
entire “categor[ies] of activities” and often allow parties to
proceed with much less red tape than is involved in obtaining
individual permits, and in some instances even without
notification to the Corps. See 33 U.S.C. § 1344(e); 33 C.F.R.
§ 325.2(e); id. pt. 330. General permits can last up to five
years, at which point they must be reissued or left to expire,
33 U.S.C. § 1344(e)(2); they can be limited to a specific state
or region, or may apply nationwide, hence “nationwide
permits” or “NWPs.” Id. § 1344(e); 33 C.F.R. pt. 330.

In March 2007, the Corps reissued all its then-outstanding
NWPs and issued six new ones, including NWP 46, which
authorized the discharge of dredged or fill material into
certain “non-tidal ditches.” Reissuance of Nationwide
Permits, 72 Fed. Reg. 11,092, 11,190 (Mar. 12, 2007). Like
many general permits, NWP 46 requires permittees to provide
the Corps with written pre-construction notification, which,
while costly, is less so than the individual permitting process.
Id. (requiring those seeking authorization under NWP 46 to
submit pre-construction notification per the terms of “general
condition 27”); id. at 11,194-95 (general condition 27).

In order to fall within NWP 46’s scope, a ditch must
(1) be “[c]onstructed in uplands”; (2) “receive water from an
area determined to be a water of the United States prior to the
 4

construction of the ditch”; (3) “divert water to an area
determined to be a water of the United States prior to the
construction of the ditch”; and (4) itself be “determined to be
[a] water[] of the United States.” Id. at 11,190. We will
return to the fourth of these criteria shortly. Additionally,
NWP 46’s expedited process is off limits to those whose
discharge would cause the “loss” of more than one acre of
waters of the United States. Id.

The NAHB filed suit claiming that, by issuing NWP 46,
the Corps had unlawfully asserted jurisdiction over upland
ditches, which it contends are categorically excluded from
being “waters of the United States” and thus are categorically
not subject to CWA regulation. Corrected Complaint ¶¶ 25-
27, 29. The Corps moved for summary judgment. The
district court found that the NAHB had standing to pose these
(and related) legal challenges, finding that NWP 46 had
caused the NAHB’s members injury by leaving them “unsure
of whether ditches they construct fall under” the Corps’s
jurisdiction, and that that uncertainty would force many to
waste time and money by unnecessarily seeking authorization.
Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs,
699 F. Supp. 2d 209, 214 (D.D.C. 2010). Ultimately,
however, the district court granted the Corps’s motion on the
merits, and the NAHB now appeals. We review de novo.
Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1246 (D.C.
Cir. 2011).

* * *

A membership organization such as the NAHB can assert
standing on behalf of its members only if “at least one” of
these members would have standing on their own. Sierra
Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002) (citing Hunt
v. Wash. State Apple Advertising Comm’n, 432 U.S. 333, 342-
43 (1977)). Although it is undisputed that the NAHB
 5

qualifies to advance the claims of its members, we find that it
has failed to show that any member had standing.

Article III standing requires that a plaintiff allege an
actual or imminent injury that is both fairly traceable to the
challenged action and likely redressable by the court
proceeding. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992). Here, the injury ostensibly suffered by the
NAHB’s members is the “affirmative and antecedent
determination [by the Corps] in favor of jurisdiction over
upland ditches” and the resulting coercive effect this has on
their behavior. Appellant’s Reply Br. 5. The NAHB claims
that NWP 46 puts its members between the Scylla of
complying (perhaps unnecessarily) with the Corps’s
permitting scheme and the Charybdis of risking criminal or
civil penalties under the CWA. Those wishing to fill ditches
have no way of knowing in advance whether their ditch is a
“water of the United States” and thus whether they need to
seek a permit under NWP 46. The uncertainty, and the
subsequent alterations to behavior that it causes, the NAHB
says, constitute legal injury.

Assuming the adequacy of this injury, it is not fairly
traceable to NWP 46. The risk of sanctions attendant on
filling upland ditches without Corps approval predates, and is
in no way aggravated by, the issuance of NWP 46. Seven
years before issuing NWP 46, for example, the Corps made
clear that upland ditches would under some circumstances be
considered to be waters of the United States. “Drainage
ditches constructed in uplands that connect two waters of the
United States may be considered waters of the United States if
those ditches constitute a surface water connection between
those two waters of the United States.” Final Notice of
Issuance and Modification of Nationwide Permits, 65 Fed.
Reg. 12,818, 12,823-24 (Mar. 9, 2000). And the Corps acted
on this belief, asserting jurisdiction under the CWA to
 6

regulate some non-tidal ditches years before it promulgated
NWP 46. See, e.g., United States v. Deaton, 332 F.3d 698,
702 (4th Cir. 2003) (upholding Corps’s assertion of
jurisdiction over a “roadside ditch”). Indeed, the NAHB’s
Vice President for Legal Affairs acknowledged that the Corps
had consistently suggested that at least some upland ditches
were subject to CWA jurisdiction, asserting in an affidavit
that, “[i]n [his] experience,” the Corps “routinely consider[ed]
non-tidal upland ditches to be ‘waters of the United States’
and accordingly require[ed] NAHB members to obtain CWA
permit coverage for discharges into such ditches.” Decl. of
Duane J. Desiderio ¶ 11 (“Desiderio Decl.”), Joint Appendix
(“J.A.”) 83. He pointed out that the organization had had a
“long history of devoting its associational resources” to
combating the Corps’s claim. Id. ¶ 27, J.A. 90. Thus, by the
time NWP 46 issued, the Corps had routinely signaled that,
although upland ditches were not generally within its
jurisdiction, some ditches certainly could be. See Final Rule
for Regulatory Programs of the Corps of Engineers, 51 Fed.
Reg. 41,206, 41,217 (Nov. 13, 1986) (noting that upland
ditches were “generally” not jurisdictional but explicitly
reserving the right to decide the status of an individual ditch
on a case-by-case basis). In its brief the NAHB implicitly
recognizes as much, occasionally suggesting that the Corps
viewed ditches as “wholly” or “entirely” beyond its
jurisdiction, while each time, doubtless in the interest of
credibility and candor, asserting the parallel, but weaker claim
that the Corps viewed ditches as only “generally” outside its
mandate. See Appellant’s Br. 60 (Corps viewed ditches as
“wholly or generally” outside its jurisdiction); id. 64 (Corps
viewed ditches as “entirely” or “generally” outside its
jurisdiction).

The fourth criterion for NWP 46’s accelerated
authorization process limits eligibility to upland ditches that
are determined to be “waters of the United States.” This
 7

logically rests on a premise that at least one such ditch is a
water of the United States, and under some circumstances
such an assertion of jurisdiction might afford standing to
potentially affected parties. The NAHB poses just such a
hypothetical, in which the Corps issues a new general permit
“purporting to allow homeowners to turn on their water taps.”
See Appellant’s Reply Br. 5. In that case, the permit would
represent an unprecedented assertion of jurisdiction over a
previously unregulated body of water and would, for the first
time, put parties on notice that their indoor plumbing might be
a “water of the United States,” and that its use required Corps
authorization. In contrast, NWP 46 has not in the slightest
increased the threat of Corps claims of jurisdiction, and
compels no additional action (or inaction) by NAHB members
to limit their exposure to penalties for proceeding without
Corps authorization. Nor, to put it in terms of redressability,
would our vacatur of NWP 46 in any way diminish the threat
they face. Indeed, all such an order could accomplish would
be to eliminate NAHB members’ ability to use NWP 46’s
relatively quick procedure to get protection from CWA
penalties.

The NAHB mistakenly invokes our 2005 decision, NAHB
v. Army Corps of Eng’rs, 417 F.3d 1272 (D.C. Cir. 2005),
where we found that the NAHB had standing to challenge
several NWPs. But in that case the Corps had altered the
terms of existing NWPs, reducing eligibility by tightening
limits on the maximum acreage that might be affected by a
proposed action. Id. at 1276, 1277, 1280, 1288. Here the
NAHB can claim no such injury. As we have seen, NWP 46’s
only alteration of the baseline circumstances was in favor of
its members, enabling them to get authorization for projects
arguably subject to Corps jurisdiction under simpler
procedures than those otherwise applicable.
 8

We hasten to add that the historical baseline is not the
only possible measure of injury. Suppose in its very first
NWP (by hypothesis affording an authorization process
simpler than that of the pre-existing regime of individual
permits) the Corps had (as it does here) limited eligibility to
projects causing no more than one acre’s “loss” of waters of
the United States. The NAHB would then have standing to
claim on behalf of its members that the requirement was
irrational because projects causing, say, two acres’ loss, had
no greater impact on the values protected by the CWA. If
persuaded on the merits, we could afford relief by ordering the
Corps to relax the one-acre ceiling. And, of course, if the
NAHB claimed defects in the process by which the Corps had
arrived at the one-acre maximum, it would likely have
standing, see Lujan, 504 U.S. at 572 n.7, and we could remedy
the claim by remanding to the Corps for further consideration
under proper procedures.

But the NAHB makes no such claims. The only injury it
asserts—the behavioral caution deriving from the Corps’s
assertion of jurisdiction over upland ditches and the resulting
threat of enforcement—has no relation to any of the
procedural failures it alleges. The NAHB does not ask us to
redraw the boundaries of NWP 46, but rather seeks a
judgment forcing revocation of NWP 46 altogether. But as
the NWP did nothing to worsen (from the NAHB’s
perspective) the Corps’s persistent view that some upland
ditches may be jurisdictional, this remedy would be of no use
to the NAHB or its members.

The NAHB also seeks a declaratory judgment, perhaps
one that would simply declare upland ditches to be off limits
altogether. To the extent that such a declaration would assist
the NAHB, that is simply because the injury that the NAHB
and its members really suffer from is the cloud cast by the
 9

antecedent jurisdictional threat; for relief against that threat,
NWP 46 is simply irrelevant.

* * *

The NAHB also makes a claim to standing in its own
right, submitting an affidavit at the district court pointing to
the “associational resources” it spent commenting on and
responding to NWP 46. Desiderio Decl. ¶¶ 25-41, J.A. 89-95.
But “[t]he mere fact that an organization redirects some of its
resources to litigation and legal counseling in response to
actions or inactions of another party is insufficient” for
standing. Nat’l Taxpayers Union, Inc. v. United States, 68
F.3d 1428, 1434 (D.C. Cir. 1995) (quoting, in parenthetical,
Ass’n for Retarded Citizens v. Dallas Cnty. Mental Health &
Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241, 244
(5th Cir. 1994)). Moreover, the passage of NWP 46 has done
nothing to hinder the NAHB’s ability to fulfill its regular
mission of informing and counseling its members of
developments in government regulation. See id.

* * *

For the foregoing reasons, we vacate the judgment of the
district court and remand the case with instructions to dismiss
for want of jurisdiction.

So ordered.