Forbush, Brian M.

English

University of Denver

Water Law Review Volume 7 Issue 1 Article 16 9-1-2003 Home Builders Ass'n of Greater Chicago v. United States Army Corps of Eng'rs, 335 F.3d 607 (7th Cir. 2003) Brian M. Forbush Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Brian M. Forbush, Court Report, Home Builders Ass'n of Greater Chicago v. United States Army Corps of Eng'rs, 335 F.3d 607 (7th Cir. 2003), 7 U. Denv. Water L. Rev. 142 (2003). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LAWREVIEWdistrict court. The district court then dismissed the case for lack ofjurisdiction under the CWA. The United States appealed, claimingCWAjurisdiction existed.On appeal, the Sixth Circuit first examined whether the districtcourt correctly interpreted Solid Waste Agency of Northern Cook County v.Army Corps of Engineers ("SWANCC"), where the Supreme Court heldthat non-navigable wetlands, if adjacent to navigable water, are underthe jurisdiction of the CWA. Because Rapanos' land was proximatebut not connected to wetlands, the Sixth Circuit also relied on aFourth Circuit decision in United States v. Deaton. The Deaton courtdetermined that a small area between wetlands and navigable watersconstituted a "significant nexus" and therefore was within CWAjurisdiction. The Sixth Circuit used this holding to show that Rapanos'land similarly had a "significant nexus" to wetlands, thus establishingCWAjurisdiction.Next, the court turned to a disputed jury instruction defining theterm "waters." Since Rapanos did not object to the instruction, thecourt reviewed the instruction for plain error. The Sixth Circuitdetermined that SWANCCs interpretation of the CWA jurisdictionclause did not invalidate the agency's regulation upon which theinstruction was based, concluded that the district court jury could nothave based its decision on impermissible grounds, and held thatRapanos' rights could not have been affected by the jury instruction.Concluding the CWA applied to Rapanos' land and that the juryinstructions were sufficient, the court reversed the decision of thedistrict court, reinstated the conviction, and remanded the case to thedistrict court for sentencing.Becky ByeSEVENTH CIRCUITHome Builders Ass'n of Greater Chicago v. United States Army Corpsof Eng'rs, 335 F.3d 607 (7thCir. 2003) (holding a government agencycan enter into a coordination agreement with other regulatoryagencies for the purpose of correlating federal regulations under thepermit requirements of the Clean Water Act so long as thecoordination agreement does not increase the agencies' regulatoryauthority beyond that granted by Congress).The Home Builders Association of Greater Chicago ("HomeBuilders") filed three successive complaints in the United StatesDistrict Court for the Northern District of Illinois seeking injunctiveand declaratory relief against the United States Army Corps ofEngineers ("Corps"). The catalyst for the suits was an InteragencyCoordination Agreement ("ICA") between the Corps and various localwater-regulating agencies. Home Builders claimed adoption of theVolume 7COURT REPORTSICA lacked sufficient notice and comment and impermissiblyextended the Corps authority under both the Clean Water Act("CWA") and the Rivers and Harbors Act. In response to HomeBuilders' fourth attempt to amend their complaint, the district courtheld the claim was nonjusticiable because Home Builders had failed toidentify a concrete injury caused by the Corps. The district court thusdismissed the action. Home Builders appealed to the United StatesCourt of Appeals for the Seventh Circuit, which affirmed the districtcourt's decision.The purpose of the ICA was to coordinate federal regulation of soilerosion and sediment flows under the permit requirements of theCWA. The provisions of the ICA included both authorization forconsultation with specified local agencies regarding soil erosion andsediment control plans and review of the implementation of theseplans through onsite inspections. Under the ICA, all signatories wereto remain independent. The Corps specifically retained the right tomake final decisions regarding opinions, actions, or findings within itsjurisdiction.The controlling issue was whether the Corps' adoption of the ICAwas a final agency action within the meaning of the AdministrativeProcedures Act ("APA"). The APA permits judicial review of "finalagency actions for which there is no other adequate remedy in acourt." Home Builders sought such review and claimed the Corpsused the ICA as a means to improperly leverage its regulatory authoritybeyond that given by Congress. Furthermore, Home Builderscomplained the ICA would produce delays through additionalprocedural hurdles and conflicting requirements. The court held thatalthough the provisions of the ICA included substantial discretionaryelements and represented a definitive pronouncement of Corps policy,it only provided a procedural framework under which the Corpsoperated. In support of this, the court identified express provisions ofthe ICA granting the Corps the right to make final decisions.Additionally, the court acknowledged the possibility that the ICAwould actually reduce, rather than increase, the costs and delays of thepermitting process, and held the ICA did not "impose new legalrequirements on regulated parties, or alter the legal regime to whichHome Builders' members were subject." The court concluded that aslong as the Corps did not leverage its regulatory authority using theICA "beyond that provided for by statute" (which the court found ithad not), entering the ICA was not a final agency action subject tojudicial review.The court briefly addressed Home Builders' claim that the Corpslacked statutory authority to enter into the ICA in the first place bynoting that the language of the CWA permitted such coordinationwith local authorities. The appeals court then affirmed the judgmentof the district court, dismissed Home Builders' complaint, and deniedfurther leave to amend.Brian M. ForbushIssue I

Home Builders Ass\u27n of Greater Chicago v. United States Army Corps of Eng\u27rs, 335 F.3d 607 (7th Cir. 2003)

https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=2227&amp;context=wlr

Home Builders Ass\u27n of Greater Chicago v. United States Army Corps of Eng\u27rs, 335 F.3d 607 (7th Cir. 2003)

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