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

ELR Citation: 40 ELR 20104
Nos. No. 07-0972, (D.D.C., 03/30/2010)

A district court rejected a homebuilder association's facial challenge to nationwide permit 46, which governs the discharge of dredged or fill materials into nontidal upland ditches. The association argued that the U.S. Army Corps of Engineers exceeded its authority under the CWA in issuing the permit because nontidal upland ditches are not waters of the United States under the CWA. But under the stringent standard applied to facial challenges, the association must demonstrate that there are no set of circumstances under which NWP 46 would be valid. The association failed to meet that standard. In Rapanos v. United States, 547 U.S. 715, 36 ELR 20116 (2006), the plurality clearly believed that the CWA does not give the Corps unfettered regulation authority. Nevertheless, the Court stopped just short of declaring that a point source, such as a ditch, can never be a navigable water under the CWA. The Corps’s interpretation of the CWA is therefore reasonable and entitled to deference.

[A prior decision in this litigation can be found at 37 ELR 20282.]