                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION OF HOME                 :
BUILDERS,                                    :
                                             :
                      Plaintiff,             :       Civil Action No.:     07-0972 (RMU)
                                             :
                      v.                     :       Re Document Nos.:     24, 27
                                             :
UNITED STATES ARMY CORPS OF                  :
ENGINEERS et al.,                            :
                                             :
                      Defendants.            :

                                   MEMORANDUM OPINION

      DENYING THE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING THE
               DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT

                                    I.   INTRODUCTION

       The plaintiff, the National Association of Home Builders, is an organization that

represents builders, land developers and remodelers and strives to protect its members’ interest

in preserving the broadest lawful use of their property. It challenges under the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., a permit issued by the Army Corps of

Engineers (“the Corps”), which regulates the discharge of dredged or fill materials into non-tidal

upland ditches, as being beyond the authority granted to the defendant under the Clean Water

Act (“CWA”), 33 U.S.C. §§ 1251 et seq. The court determines that, although the plaintiffs have

standing to bring suit, the defendants have not violated the APA; accordingly, the court denies

the plaintiff’s motion for summary judgment and grants the defendants’ cross-motion for

summary judgment.
                    II.   FACTUAL & PROCEDURAL BACKGROUND1

       Pursuant to the CWA,2 in 2007 the Corps issued a series of nationwide permits (“NWPs”)

including NWP 46. Mem. Op. (Mar. 26, 2008) at 3. NWP 46 “purports to authorize the

discharge of dredged or fill materials into upland ditches,” and governs “non-tidal ditches that:

(1) are constructed in uplands; (2) receive water from another water of the United States; (3)

divert water to another water of the United States; and (4) are determined to be a water of the

United States.” Id. (internal citations omitted).

        The plaintiff brings a facial challenge to the issuance of NWP 46, arguing that the Corps

does not have jurisdiction over non-tidal upland ditches, i.e., the plaintiff maintains that non-tidal

upland ditches are not waters of the United States under the CWA. See generally Am. Compl.

The plaintiff filed this action on May 24, 2007, see generally Compl., and filed an amended

complaint on July 16, 2007, see generally Am. Compl. Specifically, the plaintiff asks the court

to declare that the Corps has no authority to regulate non-tidal upland ditches. See generally id.

On March 26, 2008, the court denied the defendants’ motion for judgment on the pleadings,

determining that the plaintiff had demonstrated standing to maintain the suit. See generally

Mem. Op. (Mar. 26, 2008). Currently before the court are the parties’ cross-motions for

summary judgment, see generally Pl.’s Mot. for Summ. J. (“Pl.’s Mot.”); Defs.’ Cross-Mot. for



1
       The statutory framework of the CWA and the factual history of this case were discussed in detail
       in an earlier memorandum opinion. See Mem. Op. (Mar. 26, 2008). Accordingly, the court will
       only briefly summarize the relevant facts and procedural history.
2
       The CWA authorizes the Corps to issue permits for the discharge of dredged or fill materials into
       navigable waters of the United States. 33 U.S.C. § 1344. The parties and judicial authorities
       cited herein use the terms “navigable waters” and “waters of the United States,” synonymously.
       See, e.g., Pl.’s Mot. at 1, 6; Defs.’ Cross-Mot. at 13; Rapanos v. United States, 547 U.S. 715, 720,
       721 (2006).

                                                    2
Summ. J. (“Defs.’ Cross-Mot.”), and an amicus brief filed by the Natural Resources Defense

Council (“NRDC”), see generally NRDC Amicus Br. With the motions now fully briefed, the

court examines the applicable legal standards and the parties’ arguments.



                                       III.   ANALYSIS

                               A.    Legal Standard for Standing

       Article III of the Constitution limits the jurisdiction of federal courts to cases or

controversies. U.S. CONST. art. III, § 2, cl. 1. These prerequisites reflect the “common

understanding of what it takes to make a justiciable case.” Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 102 (1998). Consequently, “a showing of standing is an essential and

unchanging predicate to any exercise of a court’s jurisdiction.” Fla. Audubon Soc’y v. Bentsen,

94 F.3d 658, 663 (D.C. Cir. 1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992)). Put slightly differently, “Article III standing must be resolved as threshold matter.”

Raytheon Co. v. Ashborn Agencies, Ltd., 372 F.3d 451, 453 (D.C. Cir. 2004) (citing Steel Co.,

523 U.S. at 96-102).

       As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing

standing. Defenders of Wildlife, 504 U.S. at 561; Steel Co., 523 U.S. at 104; City of Waukesha v.

Envtl. Prot. Agency, 320 F.3d 228, 233 (D.C. Cir. 2003) (per curiam). The extent of the

plaintiff’s burden varies according to the procedural posture of the case. Sierra Club v. Envtl.

Prot. Agency, 292 F.3d 895, 898-99 (D.C. Cir. 2002). At the pleading stage, general factual

allegations of injury resulting from the defendant’s conduct will suffice. Id. On a motion for

summary judgment, however, the “plaintiff can no longer rest on such mere allegations, but must


                                                  3
set forth by affidavit or other evidence specific facts which for purposes of the summary

judgment motion will be taken to be true.” Id. at 899 (citing FED. R. CIV. P. 56); accord Fla.

Audubon, 94 F.3d at 666.

       To demonstrate standing, a plaintiff must satisfy a three-pronged test. Sierra Club, 292

F.3d at 898 (citing Defenders of Wildlife, 504 U.S. at 560). First, the plaintiff must have suffered

an injury in fact, defined as a harm that is concrete and actual or imminent, not conjectural or

hypothetical. Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 243 (D.C. Cir. 1999) (citing Steel Co.,

523 U.S. at 103). Second, the injury must be fairly traceable to the governmental conduct

alleged. Id. Finally, it must be likely that the requested relief will redress the alleged injury. Id.

Our court of appeals has made clear that no standing exists if the plaintiff’s allegations are

“purely speculative[, which is] the ultimate label for injuries too implausible to support

standing.” Tozzi v. Dep’t of Health & Human Servs., 271 F.3d 301, 307 (D.C. Cir. 2001). Nor is

there standing where the court “would have to accept a number of very speculative inferences

and assumptions in any endeavor to connect the alleged injury with [the challenged conduct].”

Winpisinger v. Watson, 628 F.2d 133, 139 (D.C. Cir. 1980).

       If the plaintiff is an association, it may sue in its own right or on behalf of its

constituents. To sue in its own right, the plaintiff “must demonstrate that [it] has suffered injury

in fact, including such concrete and demonstrable injury to [its] activities – with [a] consequent

drain on [its] resources – constituting . . . more than simply a setback to [its] abstract social

interests.” Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995)

(quotations and citations omitted). To sue on behalf of its members, an association may

demonstrate standing as long as “its members would have standing to sue in their own right, the


                                                   4
interests at stake are germane to the organization’s purpose, and neither the claim asserted nor

the relief requested requires members’ participation in the lawsuit.” Consumer Fed’n of Am. v.

Fed. Commc’ns Comm’n, 348 F.3d 1009, 1011 (D.C. Cir. 2003) (quoting Hunt v. Wash. State

Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)). Finally, if the plaintiff is suing under the

APA, the plaintiff must show that the alleged injury falls within the zone of interests that the

statute on which the plaintiff bases the complaint seeks to protect. Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871, 883 (1990); Fed’n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897, 900

(D.C. Cir. 1996).

                                 A.   The Plaintiff Has Standing

       In its previous memorandum opinion, the court determined that the plaintiff had

sufficiently demonstrated standing to survive the defendant’s motion for judgment on the

pleadings, noting that “[b]ecause [the plaintiff’s] members are regulated by NWP 46 [and] their

land-use activities must adhere to Corps requirements, . . . they are the object of the regulation.”

Mem. Op. (Mar. 28, 2008) at 11. The defendant again challenges the plaintiff’s standing to

maintain this suit. Defs.’ Cross-Mot. at 12-19. The parties dispute the first step of the standing




                                                 5
analysis,3 i.e., whether the plaintiff has suffered an injury in fact.4 See Pl.’s Mot. at 36-38; Def.’s

Cross-Mot. at 13-15.

       The plaintiff submits the declaration of Duane Desiderio, its Vice President of Legal

Affairs in support of its motion. See Decl. of Duane Desiderio in Support of Pl.’s Mot.

(“Desiderio Decl.”). With respect to associational standing, the Desiderio explains that “over

2,500 of [the plaintiff’s] members’ primary business is the development of real property.” Id. ¶

5. The plaintiff’s “members have developed and will continue to develop land that contains non-

tidal upland ditches,” id. ¶ 8, and “must often create upland ditches to control storm runoff

during a project’s land preparation phase,” id. ¶ 9. In order to satisfy federal and state

regulations regarding road building, the plaintiff’s members often construct non-tidal upland

ditches to drain roads they build to “service the travel needs of the buyers who will live in [the

plaintiff’s member’s] housing projects and other community residents.” Id. ¶ 10. According to

the plaintiff, due to NWP 46 its members are left unsure of whether ditches they construct fall

under the defendant’s jurisdiction and obtaining the “approved jurisdictional determination



3
       The defendant does not dispute that the “interests at stake are germane to the [plaintiff’s]
       purpose,” or argue that “the claim asserted []or the relief requested requires members’
       participation in the lawsuit.” Consumer Fed’n of Am. v. Fed. Commc’ns Comm’n, 348 F.3d
       1009, 1011 (D.C. Cir. 2003) (internal quotation omitted); see also generally Defs.’ Cross-Mot.
4
       The defendant also challenges the second standing prong, alleging that “NWP 46 did not alter the
       jurisdictional status of ditches” and therefore did not cause the alleged injury to the plaintiff or its
       members. Defs. Cross-Mot. at 15-16. Whether NWP 46 does in fact alter the jurisdictional status
       of ditches is an issue that is controverted on the merits and, thus, inappropriate for the court to
       decide in the standing context. City of Waukesha v. E.P.A., 320 F.3d 228, 235 (D.C.Cir. 2003)
       (explaining that “in reviewing the standing question, the court must be careful not to decide the
       questions on the merits for or against the plaintiff, and must therefore assume that on the merits
       the plaintiffs would be successful in their claims”) (citing Warth v. Seldin, 422 U.S. 490, 502
       (1975)). Thus, for the purposes of determining standing, the court assumes that the plaintiff’s
       claims will prevail. See Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 924 (D.C. Cir. 2008)
       (applying City of Waukesha’s standing analysis in the summary judgment context).

                                                      6
typically takes at least six months and requires extensive and expensive documents.” Id. ¶ 13.

Desiderio explains that the plaintiff’s members “have unnecessarily spent time, money and other

resources determining whether to obtain and then obtaining permit coverage . . . for discharges

into non-tidal upland ditches that Congress never intended to be CWA ‘navigable waters.” Id. ¶

15. Based on this information, the court determines that the plaintiff has sufficiently

demonstrated associational standing. See, e.g., W. Va. Highlands Conservancy v. Johnson, 540

F. Supp. 2d 125, 143 (D.D.C. 2008); Natural Res. Def. Council v. E.P.A., 489 F. 3d 1364, 1371

(D.C. Cir. 2007); see also Warth v. Seldin, 422 U.S. 490, 515 (1975) (explaining that when an

associational plaintiff “seeks a declaration, injunction, or some other form of prospective relief,

it can reasonably be supposed that the remedy, if granted, will inure to the benefit” of the

association’s members).

                 B.    Legal Standard for Judicial Review of Agency Actions

       The APA entitles “a person suffering legal wrong because of agency action, or adversely

affected or aggrieved by agency action . . . to judicial review thereof.” 5 U.S.C. § 702. Under

the APA, a reviewing court must set aside an agency action that is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.” Id. § 706; Tourus Records, Inc. v.

Drug Enforcement Admin., 259 F.3d 731, 736 (D.C. Cir. 2001). In making this inquiry, the

reviewing court “must consider whether the [agency’s] decision was based on a consideration of

the relevant factors and whether there has been a clear error of judgment.” Marsh v. Or. Natural

Res. Council, 490 U.S. 360, 378 (1989) (internal quotations omitted). At a minimum, the agency

must have considered relevant data and articulated an explanation establishing a “rational

connection between the facts found and the choice made.” Bowen v. Am. Hosp. Ass’n, 476 U.S.


                                                 7
610, 626 (1986); Tourus Records, 259 F.3d at 736. An agency action usually is arbitrary or

capricious if

       the agency has relied on factors which Congress has not intended it to consider,
       entirely failed to consider an important aspect of the problem, offered an explanation
       for its decision that runs counter to evidence before the agency, or is so implausible
       that it could not be ascribed to a difference in view or the product of agency
       expertise.

Motor Veh. Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also

County of L.A. v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999) (holding that “[w]here the

agency has failed to provide a reasoned explanation, or where the record belies the agency’s

conclusion, [the court] must undo its action”).

       As the Supreme Court has explained, however, “the scope of review under the ‘arbitrary

and capricious’ standard is narrow and a court is not to substitute its judgment for that of the

agency.” Motor Veh. Mfrs. Ass’n, 463 U.S. at 43. Rather, the agency action under review is

“entitled to a presumption of regularity.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S.

402, 415 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).

       In determining whether an agency proffers a permissible interpretation of a statute it

administers, the court employs the two-step Chevron analysis. Chevron U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). The court “must first exhaust the

traditional tools of statutory construction to determine whether Congress has spoken to the

precise question at issue.” Natural Res. Def. Council, Inc. v. Browner, 57 F.3d 1122, 1125 (D.C.

Cir. 1995). If, after applying accepted canons of construction, the court determines that

Congress has spoken to the precise issue, “then the case can be disposed of under the first prong

of Chevron.” Halverson v. Slater, 129 F.3d 180, 184 (D.C. Cir. 1997). If the court determines


                                                  8
that the statute is silent or ambiguous with regard to the issue, however, the second prong of

Chevron directs the court to defer to a permissible agency construction of the statute. Id.

           C.   The Court Grants the Defendant’s Motion for Summary Judgment

       To prevail on their facial challenge to NWP 46, the plaintiffs “must establish that no set

of circumstances exists under which the [permit] would be valid.” United States v. Salerno, 481

U.S. 739, 745 (1987); see also Reno v. Flores, 507 U.S. 292, 300-01 (1993) (acknowledging that

Salerno applies to a statutory challenge as well as a constitutional one); I.N.S. v. Nat’l Ctr. for

Immigrants’ Rights, Inc., 502 U.S. 183, 188 (1991) (explaining that because “the regulation may

be invalid as applied in [some] cases . . . does not mean that the regulation is facially invalid

because it is without statutory authority”).

       The plaintiff’s challenge rests on a single premise: ditches cannot be navigable waters.

See Pl.’s Mot. at 13-33. Specifically, the plaintiff contends that because the term “ditch” is

contained in the statutory definition of “point sources,”5 a ditch categorically cannot also be a

“navigable water”6 because the two terms are mutually exclusive. See id. at 15-24. All of its

other arguments stem from that foundation. See generally id. The defendant maintains that the

plaintiff’s premise is flawed and that, under certain circumstances, a ditch can be both a point

source and navigable water. See Defs.’ Cross-Mot. at 19-26; see also generally NRDC Amicus

Br.




5
       “The term ‘point source’ means any discernible, confined and discrete conveyance, including but
       not limited to any . . . ditch . . . from which pollutants are or may be discharged.” 33 U.S.C. §
       1362(14).
6
       “The term ‘navigable waters’ means the waters of the United States, including the territorial
       seas.” 33 U.S.C. § 1362(7).

                                                   9
       Both parties rely heavily on Rapanos v. United States, 547 U.S. 715 (2006) to support

their positions. In Rapanos, the Supreme Court interpreted a provision of the CWA regulating

wetlands adjacent to navigable waters. See generally id. The central issue in Rapanos was

whether the adjacent wetlands fell under the jurisdiction of the CWA. Id. at 730. Justice

Scalia’s plurality opinion and Justice Kennedy’s concurring opinion contain a detailed analysis

of the history and use of the term “navigable waters.” See id. at 721-29, 730-42 (Scalia, J.

plurality opinion); id. at 759-63, 765-83 (Kennedy, J. concurring). Although the plurality

opinion stated that the statutory definitions at play “conceive[ed] of ‘point sources’ and

‘navigable waters’ as separate and distinct categories,” it qualified that statement by noting that

the statute “would make little sense if the two categories were significantly overlapping.” Id. at

735 (emphasis added). Furthermore, the plurality opinion explained that “[t]he separate

classification of ‘ditch[es]’. . . shows that these are, by and large, not [navigable waters].’” Id. at

735-36 (emphasis added). Thus, the plurality opinion did not establish that the terms “point

source” and “navigable waters” are always mutually exclusive; it merely recognized that most of

the time they do not overlap. Id. Moreover, the plurality opinion admitted that ditches can be

navigable waters but, under the circumstances at issue in Rapanos, are usually referred to by a

different name (e.g., rivers, creeks or streams). Id. at 736 n.7. Thus, although the plurality

opinion in Rapanos clearly believed that the CWA does not give the Corps unfettered regulation

authority, it stopped just short of declaring that a point source, such as a ditch, can never be a

navigable water under the CWA. Id. at 735-36.

       Though there is little precedential case law analyzing Rapanos (and no case law relevant




                                                  10
to the question presented here7), the court notes that in the past, many courts have held that

ditches fall within the jurisdiction of the CWA. See, e.g., Parker v. Scrap Metal Processors,

Inc., 386 F.3d 993, 1009 (11th Cir. 2004) (explaining that “ditches and canals, as well as streams

and creeks[,] are navigable waters if they are tributaries of a larger body of water”); United

States v. Deaton, 332 F.3d 698, 712 (4th Cir. 2003) (deferring to the Corps’s decision to treat a

roadside ditch as a navigable water); Treacy v. Newdunn Assocs., 344 F.3d 407 (4th Cir. 2003)

(holding that the ditch in question was a navigable water). The court recognizes that some courts

have held that particular ditches are not navigable waters. See, e.g., FD&P Enters., Inc. v. Army

Corps of Eng’rs, 239 F. Supp. 2d 509, 514 (D.N.J. 2003) (holding that specific wetlands, ditches

and streams are not navigable waters); Haniszewski v. Cadby, 2009 WL 3165723, at *8

(W.D.N.Y. Sept. 29, 2009) (explaining that the evidence presented regarding a specific “wetland

drain” is insufficient to establish that the drainage ditch is a navigable water). Cases such as

these, however, involved challenges to CWA jurisdiction as applied to specific ditches, see

generally FD&P Enters., 239 F. Supp. 2d 509; Haniszewski, 2009 WL 3165723, not a facial

challenge like the one raised here challenging the Corps’s authority to regulate ditches generally,

see generally Am. Compl. Under the stringent standard applied to facial challenges, see Reno,

507 U.S. at 300-01, the plaintiff has failed to demonstrate that there is no set of circumstances

under which NWP 46 would be valid, see generally Pl.’s Mot.; Pl.’s Opp’n. The Supreme Court,

having the opportunity to definitively hold that ditches are not navigable waters, declined to do

so. See Rapanos, 547 U.S. at 735-36. Thus, the court determining that the Corps’s interpretation

7
       As explained below, a number of post-Rapanos cases have dealt with whether specific ditches
       qualify as navigable waters, but none have addressed a facial challenge such as the one brought
       by the plaintiff. See, e.g., Stepnia v. United Materials, LLC, 2009 WL 3077888, at *4-5
       (W.D.N.Y. Sept. 24, 2009).

                                                  11
of the CWA is reasonable and entitled to deference, upholds the facial validity of NWP 46. See

Deaton, 332 F.3d at 712 (concluding that deference to the Corps’s interpretation is appropriate

because it is based on a “reasonable construction of the statute”).



                                      IV.   CONCLUSION

        For the foregoing reasons, the court denies the plaintiff’s motion for summary judgment

and grants the defendants’ cross-motion for summary judgment. An Order consistent with this

Memorandum Opinion is separately and contemporaneously issued this 30th day of March,

2010.



                                                      RICARDO M. URBINA
                                                     United States District Judge




                                                12
