National Ass'n of Home Builders v. United States Army Corps of Engineers , 1 F. App'x 243 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL ASSOCIATION OF HOME 
BUILDERS OF THE UNITED STATES;
PENINSULA HOUSING AND BUILDERS
ASSOCIATION,
Plaintiffs-Appellants,
v.  No. 00-1423
UNITED STATES ARMY CORPS OF
ENGINEERS; THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY;
ALLAN B. CARROLL, Colonel,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Jerome B. Friedman, District Judge.
(CA-99-11-4)
Argued: December 6, 2000
Decided: January 17, 2001
Before WILKINS and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: William B. Ellis, MCSWEENEY, BURTCH & CRUMP,
P.C., Richmond, Virginia, for Appellants. Mark Robert Haag, Envi-
2 NAT’L ASS’N OF HOME BUILDERS v. USACE
ronment & Natural Resources Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON
BRIEF: John L. Marshall, Jr., MCSWEENEY, BURTCH &
CRUMP, P.C., Richmond, Virginia; Duane Desiderio, NATIONAL
ASSOCIATION OF HOME BUILDERS, Washington, D.C., for
Appellants. Lois J. Schiffer, Assistant Attorney General, John A. Bry-
son, Seth M. Barsky, David Kaplan, Environment & Natural
Resources Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C.; Martin Cohen, Lance Wood, U.S. ARMY
CORPS OF ENGINEERS, Washington, D.C.; Catherine A. Winer,
ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C.,
for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The National Association of Home Builders and the Peninsula
Housing and Builders Association (collectively, "Appellants") appeal
an order of the district court accepting a report and recommendation
of a magistrate judge, who in turn recommended dismissal of this
action. Finding no error, we affirm.
I.
The United States Army Corps of Engineers (the Corps) and the
Environmental Protection Agency (the EPA) share responsibility for
enforcing the Clean Water Act (CWA), 33 U.S.C.A. §§ 1251-1376(West 1986 & Supp. 2000). In 1998, the Corps and the EPA issued
a guidance memorandum interpreting the decision of this court in
United States v. Wilson, 133 F.3d 251 (4th Cir. 1997). As is relevant
here, the guidance memorandum directed "Corps and EPA field
offices . . . to assert CWA jurisdiction over all isolated water bodies
NAT’L ASS’N OF HOME BUILDERS v. USACE 3
that serve as habitat for migratory birds." Nat’l Ass’n of Home Build-
ers v. United States Army Corps of Eng’rs, No. 4:99CV11, 2000 WL
433072, at *2 (E.D. Va. Mar. 9, 2000) (internal quotation marks omit-
ted). Appellants subsequently brought this action challenging this por-
tion of the guidance memorandum on three bases: that the guidance
memorandum constituted a legislative rule that had been improperly
promulgated without the notice-and-comment procedures mandated
by the Administrative Procedure Act (APA), see 5 U.S.C.A. § 553(West 1996); that the direction to exercise CWA jurisdiction over iso-
lated water bodies that served as habitat for migratory birds exceeded
the bounds of the CWA; and that, to the extent the direction to exer-
cise jurisdiction did not violate the CWA, it violated the Commerce
Clause.
The district court referred the action to a magistrate judge, who rec-
ommended dismissal for lack of subject matter jurisdiction. Specifi-
cally, the magistrate judge concluded that the guidance memorandum
was not a "final agency action" subject to judicial review under the
APA, 5 U.S.C.A. § 704 (West 1996), and that the action was not ripe
because the guidance memorandum had not yet affected Appellants
and might never do so.* After considering Appellants’ objections, the
district court adopted the report and recommendation, and accord-
ingly it dismissed the case.
II.
After reviewing the parties’ briefs and the applicable law, and hav-
ing had the benefit of oral argument, we conclude that the district
court correctly decided the issues before it. Accordingly, we affirm on
the reasoning of the district court. See Nat’l Ass’n of Home Builders,
2000 WL 433072, at *3-*7.
AFFIRMED
*In an alternative ruling, the magistrate judge concluded that the guid-
ance memorandum was an interpretive rule that was not required to
undergo notice-and-comment rule making. The magistrate judge did not
make an alternative ruling on Appellants’ other claims.