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National Ass'n of Home Builders v. Corps of Eng'rs

ELR Citation: 35 ELR 20157
Nos. Nos. 04-5009 et al., (D.C. Cir., 07/29/2005)

The court reverses in part a lower court decision that it lacked subject matter jurisdiction to review various associations' challenge to certain nationwide permits issued by the U.S. Army Corps of Engineers (the Corps). The lower court held that the permits were not "final agency action" subject to judicial review. Although it found that the permits marked the completion of the Corps' decisionmaking process, it held that 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. However, the permits create legal rights and impose binding obligations insofar as they authorize certain discharges of dredged and fill material into navigable waters without any detailed, project-specific review by the Corps. While some builders can discharge immediately, others must either put their projects on hold or modify the projects to meet the requisite conditions. Either way, through increased delay or project modification, the permits directly affect the investment and project development choices of those whose activities are subject to the Clean Water Act. In addition, the associations may go forward with their Regulatory Flexibility Act (RFA) claims because the Corps' issuance of the permits constitutes final agency action in the form of a legislative rule and their challenge focuses on the Corps' compliance with the Act. Similarly, their Administrative Procedure Act and RFA claims are ripe for review. The associations, however, lack standing on their National Environmental Policy Act (NEPA) claim. They failed to demonstrate a substantial probability that they fall within NEPA's zone of interests.