Home Builders Assoc v. US Army Corps

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2155
HOME BUILDERS ASSOCIATION
OF GREATER CHICAGO,
Plaintiff-Appellant,
v.
U.S. ARMY CORPS OF ENGINEERS,
CHICAGO DISTRICT, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 5057—Rebecca R. Pallmeyer, Judge.
____________
ARGUED OCTOBER 18, 2002—DECIDED JULY 10, 2003
____________
Before POSNER, DIANE P. WOOD, and EVANS, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Too many cooks can
spoil the broth, as everyone knows. But that is only if no
one pays any attention to what the other ones are doing.
Patrons of fine French restaurants enjoy the coopera-
tive efforts of a team of chefs de cuisine, who coordinate
both expertise and timing to produce the final product. The
same risk of unintended consequences, or worse, chaos,
exists within our system of cooperative federalism, in
2 No. 02-2155
which authorities at the federal, state, and local levels
often have overlapping competence. One area where this
risk can materialize is in the regulation of the nation’s
waterways, where federal and local agencies exercise
overlapping jurisdiction and operate concurrent permit-
ting programs. This case is about an attempt to make the
most of each participants’ efforts, through interagency
coordination.
This attempt took the form of an Interagency Coordina-
tion Agreement (ICA) among the various agencies respon-
sible for water regulation in Lake County, Illinois. The
Chicago District of the U.S. Army Corps of Engineers
(Corps), the Lake County Stormwater Management Com-
mission (LCSMC), the Lake County Soil and Water Conser-
vation District (LCSWCD), and the U.S. Department of
Agriculture’s Natural Resources Conservation Service
(NRCS) entered into this agreement in late 1999. Their
efforts were not greeted with enthusiasm by at least one
group, the Home Builders Association of Greater Chicago
(Home Builders), which immediately sued the Corps and
a number of its officials for injunctive and declaratory
relief on the grounds that the ICA impermissibly extends
the statutory and regulatory authority of the Corps under
the Clean Water Act, 33 U.S.C. §§ 1251 et seq., and the
Rivers and Harbors Act, 33 U.S.C. §§ 401 et seq. In addition,
Home Builders alleged that the ICA was adopted without
sufficient notice and comment under the Administrative
Procedures Act (APA), 5 U.S.C. §§ 701 et seq. The district
court dismissed the action on the ground that it was
nonjusticiable, because Home Builders had not alleged a
concrete injury stemming from a final agency action. Home
Builders now appeals. We agree with the district court
that this suit presents nonjusticiable questions, and we
therefore affirm its judgment.
No. 02-2155 3
I
Section 404 of the Clean Water Act charges the Corps
with regulating certain activities affecting the nation’s
waterways and wetlands. See 33 U.S.C. § 1344; 33 C.F.R.
§ 320.2(f). The Act is designed to establish a comprehensive
program to “restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.” 33 U.S.C.
§ 1251(a). To this end, the Act prohibits the discharge
of any pollutant, including dredged or fill material, into
the navigable waters of the United States unless the
discharge is authorized by a permit. Id. § 1311(a). The
Corps is responsible for administering this permitting
regime. Id. § 1344. Day-to-day responsibility for admin-
istering the § 404 permit program has been further dele-
gated by the Corps to its district and division engineers.
33 C.F.R. § 320.1(a)(2).
The § 404 permit program involves two types of permits.
Individual permits are issued on a case-by-case basis, after
site-specific documentation and analysis, opportunity for
a public hearing, public interest review, and a formal
determination. Id. §§ 320.4, 323. The Corps evaluates
permit applications in light of Environmental Protection
Agency (EPA) guidelines for proper erosion and siltation
controls, 40 C.F.R. §§ 230.70-230.77, and also with refer-
ence to a range of “public interest factors,” 33 C.F.R.
§ 320.4. General permits, by contrast, are nationwide
permits and are designed to expedite review of activities
having minimal environmental impacts. Id. § 330. Failure
to comply with the terms of the § 404 permitting regime
can expose a party to enforcement action, including civil
administrative action initiated by the Corps itself, id.
§ 1319(g), or civil and criminal proceedings upon referral
to the Department of Justice, id. §§ 326.5, 326.6. This
case concerns the case-by-case permits.
Home Builders would like to challenge the Corps’ adop-
tion of the ICA itself, which as we noted seeks to co-
4 No. 02-2155
ordinate federal regulation of soil erosion and sediment
flows under the § 404 permit regime with the work of
various federal- and local-level agencies. The ICA repre-
sents the Corps’ effort to work effectively with its local
counterparts, including the LCSMC, which is the primary
permitting authority for the administration and enforce-
ment of the stormwater management provisions of Lake
County’s Watershed Development Ordinance, and the
LCSWCD, which is a special district authorized to pro-
mote soil and water conservation associated with land
disturbance.
The operative provisions of the ICA designed to achieve
this goal set forth the following undertakings on the part
of the Corps:
1. Wherever appropriate, as a special condition of a
Department of Army authorization, [to] require the
permittee to consult with the LCSMC on soil erosion
and sediment control plans.
2. At the Corps[’] discretion, the Corps will require
the permittee to submit a soil erosion and sediment
control plan to the LCSMC for review and approval.
The Corps will utilize the plan review comments to
determine the adequacy of the applicant’s soil erosion
and sediment control plan. The Corps will provide
notification to the applicant and LCSMC to initiate
this process.
3. At the Corps[’] discretion, as a condition of the
Department of the Army permit, the Corps will require
the permittee to schedule a preconstruction meeting
with the LCSMC to review implementation of the
soil erosion and sediment control plans.
4. If the Corps, NRCS, or LCSWCD receives a report
of a soil erosion and sediment control issue on a site,
the agencies will contact LCSMC. LCSMC will investi-
gate the report and, if necessary, prescribe corrective
No. 02-2155 5
action to the property owner or coordinate through
the Certified Community . . . . If the LCSMC fails to
resolve a violation on an authorized permit site in a
timely manner or if LCSMC requests the Corps[’]
assistance, the Corps will take action as deemed
appropriate by the Corps.
5. [The Corps will r]equest that LCSMC conduct on-
site inspections during the active construction phase(s)
of land development projects to determine whether
site development is in compliance with the approved
plan and Corps permit requirements (as those require-
ments relate to soil erosion and sedimentation control)
and determine adjustments needed to the approved
plan.
ICA, § IV.A.
The ICA expressly provides that all signatories are to
remain independent parties, and that no provision of the
agreement should be construed to establish an agency
or representative relationship among the parties “for
any purpose, or in any manner whatsoever.” Id. § IV.E.9.
Moreover, under the ICA the Corps specifically retains
the right to make final decisions regarding opinions,
actions, or findings within the Corps’ jurisdiction. Id.
§ IV.E.5.
Between September 21, 1998, and April 27, 2001, Home
Builders, an umbrella group of some 1,100 residential
developers and construction companies, filed three suc-
cessive complaints. In each, Home Builders sued for injunc-
tive and declaratory relief on the grounds that the ICA
impermissibly extends the statutory and regulatory au-
thority of the Corps under the Clean Water Act and the
Rivers and Harbors Act and violates the APA because
it was adopted without sufficient notice and comment. The
district court dismissed all three complaints for lack
6 No. 02-2155
of jurisdiction on various ripeness, standing, and finality
grounds.
On March 5, 2002, the district court issued its final
opinion, in which it considered Home Builders’ motion to
file a Fourth Amended Complaint. The court evaluated
Home Builders’ challenges to the provisions of the ICA
set forth above in two parts. With respect to the first
three provisions, the court found that review was impossi-
ble because their discretionary nature precluded a find-
ing of final agency action within the meaning of the APA.
The challenge to the fourth and fifth provisions of the
agreement failed for lack of a sufficiently concrete injury
to support Article III standing. No amendment was going
to cure these deficiencies, in the court’s view, and so it
denied plaintiffs’ motion to file the Fourth Amended
Complaint and dismissed Home Builders’ claims with
prejudice. This appeal followed.
II
Our inquiry in this case begins and ends with the ques-
tion whether Home Builders has presented a justiciable
claim. We review this question, which goes to the existence
of federal jurisdiction, de novo, looking beyond the plead-
ings if necessary. Selbe v. United States, 130 F.3d 1265,
1266-67 (7th Cir. 1997).
A
We turn first to the district court’s dismissal on finality
grounds of Home Builders’ challenges to the first three
provisions of the ICA. Home Builders is relying on the
APA for its right to bring this suit. Where, as here, the
actions of the agency are not made reviewable by a
specific statute, the APA allows judicial review of the
actions by federal agencies only over “final agency action
No. 02-2155 7
for which there is no other adequate remedy in a court.”
5 U.S.C. § 704; Abbs v. Sullivan, 963 F.2d 918, 925-26 (7th
Cir. 1992). Even if an action is final, as the term is under-
stood in the APA, review is still unavailable if “(1) stat-
utes preclude judicial review; or (2) agency action is com-
mitted to agency discretion by law.” 5 U.S.C. § 701(a).
Courts have interpreted the finality component of “final
agency action” in a pragmatic way. See Abbott Labs. v.
Gardner, 387 U.S. 136, 149 (1967); Board of Trade v. SEC,
883 F.2d 525, 530 (7th Cir. 1989).
The most recent Supreme Court word on the test for
finality appears in Bennett v. Spear, 520 U.S. 154 (1997),
where the Court had this to say:
As a general matter, two conditions must be satis-
fied for agency action to be considered “final”: First, the
action must mark the consummation of the agency’s
decisionmaking process—it must not be of a merely
tentative or interlocutory nature. And second, the
action must be one by which rights or obligations
have been determined, or from which legal conse-
quences will flow.
Id. at 177-78 (citations and quotations omitted); Western
Ill. Home Health Care v. Herman, 150 F.3d 659, 662 (7th
Cir. 1998) (quoting same). Interpreting this language, as
well as drawing guidance from earlier decisions of the
Court, this court stated that an action is final when “its im-
pact is sufficiently direct and immediate and has a direct ef-
fect . . . on day-to-day business.” Western Ill. Home Health,
150 F.3d at 662 (quoting Abbott Labs., 387 U.S. at 151-52,
and Franklin v. Massachusetts, 505 U.S. 788, 796-97
(1992)). Accordingly, “[t]he core question is whether the
agency has completed its decisionmaking process, and
whether the result of that process is one that will directly
affect the parties.” Id. (quoting Franklin, 505 U.S. at 797).
8 No. 02-2155
In finding that the first three provisions of the ICA
were not “final agency action” for APA purposes, the dis-
trict court focused in particular on the fact that these
provisions are framed in discretionary terms and there-
fore “do not bind the Corps to any particular course of
action.” If discretion is so complete that meaningful stan-
dards for judicial review are lacking, then that would be
an unobjectionable ground. Some care is necessary, how-
ever, in talking about discretion, because it is equally
true that the presence of some discretion in the system
does not necessarily defeat the availability of judicial
review over other elements. The Supreme Court’s decision
in Toilet Goods Association v. Gardner, 387 U.S. 158 (1967),
issued the same day as Abbott Labs and widely con-
sidered a foundational case in modern administrative law,
makes the latter point clear. There, the Supreme Court
found “no question” that the regulation at issue was
final, even though the regulation stated that the Commis-
sioner of the Food and Drug Administration “may” suspend
agency certification in response to particular actions by
regulated parties. Id. at 162. Later cases from the Su-
preme Court do not contradict this basic holding. The
Bennett Court, for example, merely noted that the presence
of the imperative “shall” in a challenged regulation
was enough to defeat the contention that the action was
discretionary and thus non-final. See Bennett, 520 U.S.
at 175.
Nor do the first three provisions of the ICA fit com-
fortably within the APA’s exclusion of review of agency
action that is “committed to agency discretion by law.” 5
U.S.C. § 701(a)(2). The classic example of such an action
is an agency’s decision not to prosecute. See Heckler v.
Chaney, 470 U.S. 821, 831 (1985); United States v.
Batchelder, 442 U.S. 114, 123-24 (1979); United States v.
Nixon, 418 U.S. 683, 693 (1974). The exception has also
been found to apply to situations in which a statute’s
No. 02-2155 9
delegation of decision-making authority to an agency is
so complete “that a court would have no meaningful
standard against which to judge the agency’s exercise of
discretion.” Webster v. Doe, 486 U.S. 592, 600 (1988)
(quoting Heckler, 470 U.S. at 830); see also Scalise v.
Thornburgh, 891 F.2d 640, 648-49 (7th Cir. 1989); Singh v.
Moyer, 867 F.2d 1035, 1037-38 (7th Cir. 1989). This latter
version of the exception is a “very narrow” one, see Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410
(1971), and applies only if a careful analysis of the stat-
utory language, statutory structure, legislative history,
and the nature of the agency action requires it. Singh, 867
F.2d at 1038.
The ICA does not reflect either type of untrammeled
discretion. Home Builders is not challenging a prosecu-
tion decision. Nor does the ICA lack language on which
we might base our review or leave in doubt the par-
ticulars of the procedures that would be required of a
prospective permit applicant in any particular instance.
Only the frequency of the Corps’ invocation of those proce-
dures is in doubt here. But the possibility exists in every
case that the Corps may use these procedures, and it is
easy enough to see what it has committed itself to do,
and thus to find the law that should apply. Overton Park,
401 U.S. at 410.
We conclude that the first three provisions of the ICA,
though they include substantial discretionary elements,
represent a definitive pronouncement of Corps policy,
rather than an agency decision “of a merely tentative
or interlocutory nature.” Bennett, 520 U.S. at 177-78.
The language and subject matter of the provisions are
such as to indicate that the Corps “has completed its
decisionmaking process.” Franklin, 505 U.S. at 797.
Thus, we agree with Home Builders that the ICA meets
the first part of the Bennett test for finality.
10 No. 02-2155
B
The second part of the Bennett test requires us to decide
whether any of the five ICA provisions amount to an agency
action by which “rights or obligations have been deter-
mined,” or from which “legal consequences will flow.” As
such, it is closely related to the question of ripeness, under
which the court must decide (1) whether the issues are
fit for judicial decision and (2) what hardship will be
inflicted on the parties if court consideration is with-
held. See Nat’l Park Hospitality Ass’n v. Dept. of the In-
terior, 123 S.Ct. 2026, 2030 (2003). Because, at least
in this case, the concerns underlying those two doctrines
are so similar, we analyze Home Builders’ claim in the
alternative.
First, in order to show that it is attacking a “final”
decision, Home Builders notes that the ICA requires its
members to shuttle between different regulatory agencies,
increasing the inconvenience and the costs of regulatory
compliance. But we have held in the past that the mere
presence of increased administrative costs is insufficient
to establish the finality required for nonstatutory review
under the APA. See, e.g., Abbs, 963 F.2d at 927 (finding
no finality “when the only harm the challenger seeks to
avert is the inconvenience of having to go through the
administrative process before obtaining a definitive de-
claration of [her] legal rights”); see also FTC v. Standard
Oil of Cal., 449 U.S. 232, 242 (1980) (noting that comply-
ing with additional administrative proceedings “is differ-
ent in kind and legal effect from the burdens attending
what heretofore has been considered to be final agency
action”). To the extent that the ICA imposes additional
administrative costs on regulated parties, those costs do
not make the adoption of the ICA a final agency action
within the meaning of the APA.
The same is true of Home Builders’ claim that the
ICA injures its members by imposing “delays” in the
No. 02-2155 11
permitting process. As a general rule, § 706 of the APA
“leaves in the courts the discretion to decide whether
agency delay is unreasonable.” Forest Guardians v. Babbitt,
174 F.3d 1178, 1190 (10th Cir. 1999). Among the cir-
cuits that have considered the question, the consensus
is that agency delay in face of a clear statutory duty (but
in the absence of a statutory deadline) must be “egregious”
before it can convert agency inaction into a final action
reviewable under the APA or warrant mandamus. See,
e.g., Cobell v. Norton, 240 F.3d 1081, 1096 (D.C. Cir. 2001);
In re Cal. Power Exchange Corp., 245 F.3d 1110, 1124
(9th Cir. 2001); see also Forest Guardians, 174 F.3d at
1190. We agree with that assessment. Home Builders
is complaining only about alleged minor delays that
might occur because of the additional procedural hurdles
imposed by the ICA. This is not enough to satisfy the sec-
ond part of the Bennett test.
In fact, it is quite unclear whether the ICA has or will
impose any additional costs or delays on permit applicants
at all. On its face, the ICA does two things. First, it sets
up rules that govern the sequence in which permit appli-
cants approach local and federal agencies: the applicant
must submit its materials to local-level agencies and
only then may it go to the Corps (provisions 1, 2, and 3).
Second, the Agreement amounts to a de facto outsourcing
arrangement. The ICA specifies that the Corps may rely
on formal LCSMC comments on plans presented at the
local level in making federal permitting decisions (provi-
sions 2 and 3), and that the LCSMC will in some cases
perform inspections that would otherwise be conducted
by the Corps itself (provisions 4 and 5).
It seems possible to us that the ICA may actually reduce,
rather than increase, the costs and delays of the permit-
ting process. In the absence of the ICA, regulated parties
would still have to acquire permits from both federal
and local authorities before commencing construction or
12 No. 02-2155
other projects. The ICA may streamline the process by
subjecting permit applicants to one set of inspections and
by requiring that applicants submit only one set of ap-
plication materials for formal comment, thus avoiding
duplication of effort. Of course, whether the ICA in fact
imposes additional costs or delays is irrelevant, given
our holding that neither amounts to legal consequences
within the meaning of the APA’s finality requirement.
But the fact that the existence of greater costs and delays
is speculative at best bolsters our conclusion that Home
Builders has not shown the legal consequences necessary
to maintain its suit.
We turn next to Home Builders’ contention that the
ICA subjects its members to “conflicting requirements.” To
the extent that Home Builders is claiming that the con-
flicting requirements imposed by the federal and local
signatories to the ICA impose administrative burdens on
its members who are seeking regulatory approval, this
simply restates the allegation about heightened com-
pliance costs and delay, and it fails for the same reasons.
To the extent Home Builders’ claim is that the ICA itself
adds new “conflicting requirements” that prospective per-
mitees must satisfy, the short answer is that it does no
such thing. The source of those conflicting requirements,
to the extent they exist, is in the congressional decision
in the Clean Water Act to establish a partnership be-
tween the States and the Federal Government, not the
ICA. See 33 U.S.C. § 1251(g); see also Arkansas v.
Oklahoma, 503 U.S. 91, 101 (1992). The Clean Water Act
explicitly contemplates more stringent regulation of the
discharge of effluent material by state and local govern-
ments than that required by the federal government,
at least as to waters subject to joint federal-state juris-
diction. See 33 U.S.C. § 1342(b); 40 C.F.R. § 122.1(a)(5);
see also International Paper Co. v. Ouellette, 479 U.S.
481, 489-90 (1987) (interpreting 40 C.F.R. § 122.1(f), the
No. 02-2155 13
predecessor implementing regulation). The upshot of all
of this is that the Clean Water Act’s permitting provi-
sions, like many federal regulatory laws, establish a floor,
but not a ceiling, on state and local regulation. See, e.g.,
California Federal Sav. and Loan Ass’n v. Guerra, 479 U.S.
272, 285 (1987). Thus, the “conflicting requirements” that
Home Builders is attacking are a pervasive feature of
the regulatory landscape, not something that the ICA
created.
Home Builders finally urges us to find that the Corps
is using the ICA as a means of improperly leveraging
its regulatory authority beyond that given it by Congress.
By this, it appears to be accusing the Corps of imposing
requirements that go beyond the restrictions authorized
by federal law. If that were true, it would be a serious
point. But we are entitled to look at the ICA itself to see
if it can be used in this way, see Bastien v. AT&T Wire-
less Servs., Inc., 205 F.3d 983, 990 (7th Cir. 2000), and our
review convinces us that it cannot.
This would be a different case if Home Builders had
tendered evidence that the Corps had rejected a federal
permit application solely because the applicant had
not complied with a local agency’s requirements regarding
non-navigable waters. See, e.g., Solid Waste Agency of N.
Cook County v. U.S. Army Corp of Eng’rs, 531 U.S. 159,
171-72 (2001). Upholding such a condition would allow
the Corps to graft onto the permitting process additional
requirements that are not within its regulatory authority.
But if Home Builders wished to make such an argument
in this case, it would not need to refer to the ICA. It
would be enough to allege, and show, that the Corps
was acting ultra vires–that is, outside the authority con-
ferred upon it by Congress.
This is precisely what the plaintiff succeeded in demon-
strating in the Fifth Circuit decision upon which Home
Builders relies, American Forest and Paper Association v.
14 No. 02-2155
EPA, 137 F.3d 291 (5th Cir. 1998). In American Forest, the
plaintiff sought review of an EPA rule providing for veto
of all permits granted by Louisiana state authorities that
did not comply with the Endangered Species Act (ESA).
Prior to its promulgation of the challenged rule, the EPA
had itself administered the permitting program and had
ensured that the proposals submitted by permit appli-
cants complied with the ESA. But by its express terms, the
ESA does not apply to state-level actors. In order to
get around this fact, when the EPA delegated its permit-
ting authority to Louisiana it did so on the condition
that the state agency in charge of permitting submit
all permit applications to two federal agencies—the Fish
and Wildlife Service (FWS) and the National Marine
Fisheries Service (NMFS)—for final approval under the
ESA. The Association sued, and the EPA argued that the
Association lacked standing, and that the dispute was
not yet ripe. The Fifth Circuit rejected both of these ar-
guments. It found that the EPA had acted beyond its
statutory authority by imposing a criterion—i.e., the
protection of endangered species—that is not enumerated
among the factors that the Clean Water Act allows the
EPA to take into account in granting or denying approval
of state permitting programs. Id. at 299.
But the ICA is quite different from the EPA rule at
issue in American Forest. It is more like the agency ac-
tion challenged in this court’s case of Abbs v. Sullivan. In
Abbs, a state university professor sought to challenge
the procedural framework used by the National Institutes
of Health to investigate alleged improprieties in the use
of an NIH grant. 963 F.2d at 921. We rejected his chal-
lenge to the NIH’s procedural framework on finality
grounds, drawing a loose distinction between rules of
conduct and rules of procedure. Id. at 926. As we have
found above with respect to the ICA, there was no indica-
tion that Abbs had suffered, or would suffer, concrete
harm as a consequence of his case winding its way through
No. 02-2155 15
the procedural framework set up by the NIH. Id. We
concluded that, short of an actual finding of guilt and
the imposition of sanctions, Abbs was only challenging
a “set of rules governing the investigation,” and not agency
action itself. Id.The ICA is also similar in a number of respects to the
broad program found to lack finality for APA purposes
in Lujan v. National Wildlife Federation, 497 U.S. 871(1990). In Lujan, the National Wildlife Federation chal-
lenged the “land withdrawal review program” of the
Bureau of Land Management (BLM). The “program” in
fact set forth a procedural framework for determining
the status of public land and its availability for private
uses such as mining. Id. at 878-79. The Court held that
the program was not an “identifiable agency action” because
it did not “refer to a single BLM order or regulation, or
even to a completed universe of particular BLM orders
and regulations,” but instead was “simply the name by
which petitioners have occasionally referred to the con-
tinuing . . . operations of the BLM.” Id. at 890. Accordingly,
the Court found that the procedural framework for de-
termining possible private uses lacked the finality neces-
sary for nonstatutory review under the APA. Id. at 890-91.
As in Lujan and Abbs, the ICA establishes only the
procedural framework under which the Corps intends to
operate. It expressly provides that the Corps retains the
right to make final decisions regarding opinions, actions, or
findings within the Corps’ jurisdiction. What the ICA
does not do, and what distinguishes it from the EPA rule
that was successfully challenged in American Forest, is
impose new legal requirements on regulated parties, or
alter in any way the legal regime to which Home Builders’
members are subject. So long as the Corps does not use
the ICA to leverage its regulatory authority beyond
that provided for by statute, there is no agency action
16 No. 02-2155
by which “rights or obligations have been determined,” or
from which “legal consequences will flow.”
It would not help Home Builders even if we were to
agree that the entry into force of the ICA was a “final”
agency action under Bennett, because this would simply
shift our inquiry to ripeness. In National Park Hospitality
Association, supra, the Supreme Court began by noting that
“the question of ripeness may be considered on a court’s
own motion.” 123 S.Ct. at 2030. In that case, the Court
held that a National Park Service regulation that pur-
ported to render the Contracts Disputes Act of 1978, 41
U.S.C. §§ 601 et seq., inapplicable to concession contracts
on parklands was not ripe for review. The regulation,
which was nothing more than a general statement of
policy, did not create adverse effects of a strictly legal kind.
123 S.Ct. at 2031. It did not affect the concessioner’s
primary conduct. Id. Indeed, nothing seemed to prevent
concessioners in particular cases from following the proce-
dures of the Contract Disputes Act. Id. Under the circum-
stances, the Court concluded, the challengers had not
shown the type of hardship needed to create a dispute
ripe for resolution. Evaluating the harm from delayed
consideration, the Court found that further factual de-
velopment would significantly advance its ability to deal
with the legal issues. Id. at 2032. Accordingly, it decided
that the case had to be dismissed on ripeness grounds.
This analysis is tailor-made for Home Builders’ challenge
to the ICA. Like the Park Service regulation, the ICA
is only a general statement of policy. It creates no legal
rights or obligations affecting primary conduct. It may
be that in particular cases the Corps will choose not to
follow its procedures. Finally, further factual development
would substantially assist in any court’s evaluation of
the agreement. We do not even know, at this point, wheth-
er it will have the desired streamlining effect, or if it
will result in the onerous costs and delays that Home
No. 02-2155 17
Builders fears. Thus, on the assumption that the ICA
can clear the finality hurdle, we find that Home Builders’
suit is not ripe for resolution.
C
Two more loose ends remain. Home Builders con-
tends that the Corps lacked statutory authority to enter
into the ICA in the first place and that this supports a
facial challenge to the Agreement. But to prevail on a
facial challenge, Home Builders “must establish that no
set of circumstances exists under which the [regulation]
would be valid.” Reno v. Flores, 507 U.S. 292, 301 (1993)
(quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
Home Builders’ complaint does not meet that demand-
ing standard. Its principal claim, which is that the Clean
Water Act’s implementing regulations authorize the
Corps to execute joint-procedures agreements with States
and other federal agencies only, and not with local agencies
like LCSMC and LCSWCD, is without merit. Home Build-
ers refers us to 33 C.F.R. § 325.2(e)(3), which states that
“[d]ivision and district engineers are authorized and
encouraged to develop joint procedures with states and
other Federal agencies with ongoing permit programs for
activities also regulated by the [Corps].” But that provi-
sion does not stand alone. We note in particular 33 C.F.R.
§ 325.4(a)(2), which says that “[w]here appropriate, the
district engineer may take into account the existence
of controls imposed under other federal, state, or local
programs which would achieve the objective of the de-
sired condition.” Id. In the face of that language, it is
impossible to maintain that there is no set of circum-
stances under which coordination with local authorities
is permissible.
Finally, because we have found that Home Builders is
not entitled to bring this action under the APA, we have
18 No. 02-2155
no need to consider whether the district court correctly
concluded that it lacked constitutional standing to chal-
lenge paragraphs four and five of the relevant part of the
ICA.
III
For the foregoing reasons, we AFFIRM the judgment of
the district court dismissing Home Builders’ complaint
and denying leave to amend.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-10-03