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

ELR Citation: 41 ELR 20363
Nos. 10-5169, (D.C. Cir., 12/16/2011)

The D.C. Circuit held that a home builders association lacked standing to challenge the U.S. Army Corps of Engineers' issuance of nationwide permit (NWP) 46, which allows 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 association claimed 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. But the association's alleged injury—the uncertainty of knowing whether a ditch is a "water of the United States" and the potential risk of facing criminal of civil penalties under the CWA—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.