On March 12, 2007, the U.S. Army Corps of Engineers released new and modified Section 404 Nationwide Permits ("NWP"). Of particular concern is new NWP 46, "Discharges in Ditches," which authorizes the discharge of dredged or fill material into upland ditches. For years NAHB has advocated that Congress did not intend to treat upland ditches as "navigable waters" or "waters of the United States." The Corps itself generally excludes ditches from its regulatory definition of "waters of the United States." The CWA further distinguishes upland ditches from regulable waters, preferring to categorize them as point sources. According to the CWA, the term "point source" means any discernible, confined and discrete conveyance, including but not limited to any "ditch."
NWP 46 illegally expands the Corps's jurisdiction to reach upland ditches--features that are not "navigable waters" under the CWA and which are thus outside the Corps' jurisdictional authority.
The complaint was filed in May 2007. In response, the government filed a motion to dismiss on the grounds that NAHB lacked standing to pursue this complaint. On March 26, 2008, the District Court, in a favorable opinion for NAHB, dismissed the Corps's motion, and found that NAHB has sufficiently demonstrating standing at this stage of the litigation. The District Court acknowledged that our members can be injured by regulatory actions such as the promulgation of an NWP. NAHB and the Corps jointly proposed a briefing schedule to the court, which it adopted in April 2009. Then, in an unprecedented move, the Corps published a notice for public comment on April 15, 2009, the sole purpose of which is to undermine the court's decision that NAHB has standing to challenge NWP 46. NAHB is explicitly named in the notice, as is the litigation and the court's opinion. NAHB filed comments on May 15, 2009.
NAHB filed its motion for summary judgment on May 26, 2009. The Corps' response was filed July 20, 2009, and NAHB filed its reply on August 21, 2009. The Corps filed its response October 2, 2009, and we are now waiting for the court to schedule oral arguments.
For more information about this item, please contact Amy Chai at 800-368-5242 x8232 or via e-mail at achai@nahb.org.
