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Administrative Law Keyed to Popper
National Association of Homebuilders v. United States Army Corps of Engineers
Citation:
417 F.3d 1272 (2005)Facts
In 1996, the Corps proposed to reissue and modify several nationwide permits under the Clean Water Act, including NWP 26, which authorized discharges affecting up to ten acres of water into headlands and isolated wetlands without an individual permit. After public comment, the Corps decided to replace NWP 26 with activity-specific general permits. In March 2000, the Corps promulgated activity-specific permits consisting of five new NWPs and six modified NWPs to replace NWP 26, reducing the authorized maximum per-project acreage impact from ten acres to one-half acre and requiring preconstruction notification for impacts greater than one-tenth acre. The appellants filed lawsuits challenging these permits on four grounds: (1) the Corps exceeded its statutory authority under the CWA; (2) the Corps acted arbitrarily and capriciously in violation of the APA by failing to provide a rational basis for its permit acreage thresholds; (3) the Corps violated the RFA by failing to evaluate the potential impact on small businesses; and (4) the Corps violated NEPA by failing to prepare a Programmatic Environmental Impact Statement. The district court granted summary judgment to the Corps, concluding that the issuance of NWPs did not constitute final agency action subject to judicial review.
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