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

ELR Citation: 36 ELR 20032
Nos. Nos. 04-5221 et al., (D.C. Cir., 02/03/2006)

The court holds that various associations' challenge to a U.S. Environmental Protection Agency and U.S. Army Corps of Engineers' (the Corps') regulation concerning permit requirements for the discharge of dredged or fill material into waters of the United States is ripe and reversed a lower court's dismissal of the associations' claim. The regulation provides that the use of mechanized earth-moving equipment in U.S. waters will require a permit unless "project-specific evidence" shows that the dredging results in only "incidental fallback." The regulation defines incidental fallback as the "redeposit of small volumes of dredged material incidental to excavation activity" if the material "falls back to substantially the same place as the initial removal." The associations argue that the regulation creates an impermissible rebuttable presumption that all dredging results in unlawful discharge and that its definition of incidental fallback exceeds the scope of the Corps' authority under Clean Water Act §404. Contrary to the lower court's conclusion, the case is fit for review. The case presents a legal issue, the agency action is final, and the legality of the two challenged features of the regulation will not change from case to case or become clearer in a concrete setting. Further, the associations' members will suffer hardship should the challenge be delayed.