## Facts

- The U.S. Army Corps of Engineers issued new and modified Clean Water Act (CWA) § 404(e) nationwide permits (NWPs) and general conditions for discharges of dredged or fill material into waters.
- The revised NWPs tightened key limits, including acreage caps and conditions governing when an activity could proceed under a general permit rather than an individual permit.
- The Corps concluded that each NWP category would result in only “minimal adverse environmental effects” when considered both individually and cumulatively.
- The Corps’ program relied on district engineers to impose regional conditions, restrict or revoke NWPs in sensitive areas, and require individual permits when warranted.
- Industry plaintiffs, led by the National Association of Home Builders, challenged the NWP package under the Administrative Procedure Act (APA) and, to a limited extent, the Regulatory Flexibility Act (RFA), arguing that the Corps unlawfully relied on regionalized decisionmaking and imposed unjustified restrictions.

## Issues

1. Whether the Corps’ reliance on regional determinations and district-engineer discretion to support “minimal adverse environmental effects” findings for NWPs complied with CWA § 404(e) and the APA.
2. Whether the Corps adequately explained and supported stricter NWP conditions (including acreage limits and regional restrictions) under arbitrary-and-capricious review.
3. Whether the Corps satisfied applicable RFA requirements in promulgating the NWP package, and whether any defect warranted vacatur or remand.
4. Whether the NWP structure improperly delegated to district engineers decisions that § 404(e) required to be made at the time the NWPs were issued.

## Decision

- The court largely granted summary judgment for the Corps and denied most relief sought by the industry plaintiffs.
- The court held that the Corps reasonably interpreted CWA § 404(e) to allow a national minimal-effects determination implemented through regional conditions and case-specific safeguards administered by district engineers.
- The court found the Corps’ regionalized approach and the tightened permit conditions sufficiently explained and supported in the administrative record and not arbitrary or capricious.
- To the extent RFA claims remained viable, the court concluded the Corps either complied or plaintiffs did not show a basis to invalidate the NWP package.
- The revised NWPs and general conditions remained in effect, subject at most to limited, non-structural adjustments on discrete points.

## Legal Principles

- Under CWA § 404(e), the Corps may issue general permits for categories of activities that are similar in nature and will have only minimal adverse environmental effects, separately and cumulatively.
- Under APA arbitrary-and-capricious review, a court asks whether the agency considered relevant factors and articulated a rational connection between the record and its policy choices; courts do not substitute their preferred regulatory design.
- The Corps may treat national permit terms, acreage limits, regional conditions, and discretionary authority to require individual permits as a combined framework supporting minimal-effects determinations.
- Agencies may rely on technical expertise and geographic variability in designing permitting programs, including region-specific tailoring, so long as the statutory standard is reasonably met.
- RFA challenges require a showing of a reviewable obligation and a defect that justifies the requested remedy; non-prejudicial or unproven procedural shortcomings generally do not warrant vacatur.

## Conclusion

The district court upheld the Corps’ revised nationwide-permit program, concluding that the Corps reasonably determined NWPs would have only minimal adverse environmental effects using a combination of national limits and district-level regional safeguards, and that the agency’s explanations satisfied APA review while the surviving RFA claims did not justify invalidating the permit package.


Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 453 F. Supp. 2d 116 (D.D.C. 2006)