Holland & Knight Clients NSSGA, ARTBA and NPPC Prevail in DC Circuit in Clean Water Act NWP Appeal
August 1, 2005
Lawrence R. "Larry" Liebesman- Washington
Rafe Petersen - Washington
Washington, D.C. - In a big win for
aggregates companies and for public agencies building transportation and water
resource projects, the U.S. Court Appeals for the District of Columbia Circuit
has reversed a lower court decision finding that their challenge to the U.S.
Army Corps of Engineers (Corps) 2002 Nationwide Permit Regulations (NWP) under
the federal Clean Water Act was final agency action and, therefore, “ripe for
review.” The aggregates industry and public agencies had challenged numerous
provisions in the NWP regulations, particularly focusing on NWP 43 for storm
water management and NWP 44 for mining, asserting that these NWPs were
essentially “useless” given the severe restrictions on floodplain impacts and
the one-half acre national cap in wetlands impacts. In November 2003, Judge
Richard Leon refused to address the merits, finding that the NWP regulations
were not final and reviewable.
Writing for the unanimous 3 judge panel
reversing the lower court, Judge Karen Henderson held that the NWP regulations
were final and “ripe for review.” The court stated that “because the Corps
NWPs mark the completion of the Corps decision-making process and affect the
appellants day-to-day operations, they constitute final agency action regardless
of the fact that the Corps action might carry different (or no) consequences
for a different challenger, such as an environmental group.” The Court
particularly cited the NWPs adverse impacts on a company’s decision making
stating that “if the appellants planned activities do not meet the applicable
NWP’s conditions and thresholds they have two options. They can either put their
projects on hold and run the Corps individual-permit gauntlet or modify the
project conditions. Either way, through increased delay or project modification,
the NWPs directly affect the investment and project development choices of those
whose activities are subject to the CWA.” The Court also held that the NWPs
were regulations and subject to the Federal Administrative Procedure Act
requirements and that the Regulatory Flexibility Act claim requiring
consideration of economic impacts on small businesses was also ripe for review.
The court, however, held that the appellants could not press their NEPA claim
for lack of standing.
“This is a tremendous victory for our clients.
The court vindicated our clients rights to have their day in court and struck
down the Government’s theory that it can essentially prevent a court from
reviewing its regulations under the Clean Water Act’s wetlands program – rules
that have a tremendous impact on how business is conducted. In light of this
ruling, our clients fully intend to pursue their challenge to these arbitrary
rules in federal court” noted Larry Liebesman, Holland & Knight environmental
partner in the case.
Larry Liebesman, Rafe Petersen and Ethan Arenson
of Holland & Knight LLP’s DC office represented the National Stone Sand and
Gravel Association (NSSGA) the American Road and Transportation Builders
Association (ARTBA) and the Nationwide Public Projects Coalition (NPPC). Other
appellants included the National Association of Home Builders (NAHB) the
National Federation of Independent Businesses (NFIB) and Wayne Newnam, an Ohio
homebuilder.
Contact: Beth Salvosa, (202) 663-7240