RECENT FEDERAL DECISIONS

April 2006

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Incidental Fallback Dredging Regulations Are Ripe for Review Despite Requirement to Prove Volume of Redeposited Material with Project-Specific Evidence

National Wildlife Federation v. U.S. Army Corps of Engineers, ___F.Spp.2d___

Under § 404 of the Clean Water Act (CWA), the U.S. Army Corps of Engineers’(Corps) promulgated regulations covering the discharge of dredged or fill material into waters of the United States. See Further Revisions to the Clean Water Act Regulatory Definition of “Discharge of Dredged Material,” 66 Fed. Reg. 4550, 4575 (Jan 17, 2001) (codified at 33 C.F.R. § 323.3). (The U.S. Environmental Protection Agency also promulgated an identical regulation governing the discharge of pollutants other than dredged and fill material. 40 C.F.R. § 232.2.) A number of industry groups, lead by the National Home Builders Association, challenged the regulation in the District Court for the District of Columbia. The District Court dismissed the case on the grounds that it was not ripe for review. National Ass’n of Home Builders v. United States Army Corps of Engineers, 311 F.Supp.2d 91 (D. D.C. 2004). On appeal, the D.C. Circuit reversed, holding that the regulation was ripe for review because the core issues are purely legal and do not depend upon case-by-case findings. As result, the D.C. Circuit remanded the case to the District Court for consideration of the merits of the Industry’s challenge.