## Facts

- The United States Army Corps of Engineers issued and reissued several Clean Water Act § 404(e) nationwide permits authorizing specified categories of discharges of dredged or fill material into waters of the United States, subject to standardized conditions and limits.
- Industry associations challenged the nationwide permits and related conditions in federal district court, alleging (among other things) that the Corps exceeded statutory authority and failed to provide a reasoned basis for the permits’ restrictions.
- The district court granted summary judgment to the Corps, dismissing for lack of subject-matter jurisdiction on the ground that issuance of the nationwide permits was not “final agency action” reviewable under the Administrative Procedure Act.
- The industry associations appealed to the D.C. Circuit.

## Issues

1. Whether issuance or reissuance of Clean Water Act § 404(e) nationwide permits constitutes “final agency action” reviewable under APA § 704.
2. Whether the plaintiffs’ facial, programmatic attack on the legality and justification for nationwide permit conditions is ripe and fit for immediate judicial review.
3. Whether any of the plaintiffs’ multiple claims are non-cognizable on threshold justiciability grounds.

## Decision

- The D.C. Circuit reversed the district court’s jurisdictional dismissal in part.
- The court held that issuance of the nationwide permits generally constituted final agency action subject to APA review.
- The court held that, with one exception, the plaintiffs’ claims were cognizable and ripe for review.
- The case was remanded to the district court for further proceedings on the merits of the surviving claims.

## Legal Principles

- Agency action is “final” under the APA when it marks the consummation of the agency’s decision-making process and determines rights or obligations or produces direct legal consequences.
- Programmatic, generally applicable permitting decisions that define categories of authorized conduct and impose binding conditions can satisfy APA finality because they have immediate legal effects on regulated parties.
- Facial challenges asserting that an agency exceeded statutory authority or failed to provide a reasoned basis for permit conditions may be ripe without project-specific factual development when the dispute is predominantly legal.
- Courts may permit pre-enforcement APA review of binding permitting regimes rather than requiring regulated parties to wait for project-level decisions or enforcement actions.

## Conclusion

The D.C. Circuit held that the Corps’ nationwide permits under Clean Water Act § 404(e) are generally final, reviewable agency action and that most facial legal challenges to the permits and their conditions are justiciable upon issuance, requiring remand for merits review.


Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng'rs, 417 F.3d 1272 (D.C. Cir. 2005)