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Judicial Review of EPA’s Determination That the L.A. River Basin Is a “Traditional Navigable Water” Might Have to Wait

September 13, 2010

On the heels of the U.S. Environmental Protection Agency’s (EPA) declaration that the 51-mile, concrete-lined Los Angeles River is a “traditional navigable waterway” (see Bingham Alert dated July 23, 2010), a District Court in the District of Columbia has dismissed a challenge to another “traditional navigable waterway” determination as premature. In National Association of Home Builders v. United States Environmental Protection Agency, the plaintiffs sought judicial review of a designation by the EPA and the U.S. Army Corps of Engineers (the Corps) that two reaches of the Santa Cruz River in Arizona are “traditional navigable waters.” The court granted EPA and the Corps’ motion to dismiss, holding that the Clean Water Act (CWA) precludes pre-enforcement review of the agency determinations.

The plaintiffs in National Association of Home Builders sought judicial review under the Administrative Procedure Act (APA), arguing that the agencies’ determinations did not follow required procedures, were not grounded in substantial evidence, were arbitrary and capricious, and exceeded the agencies’ statutory authority. However, the court pointed out that judicial review under the APA is unavailable when it is precluded by statute. The court reasoned that the CWA precludes pre-enforcement review of traditional navigable water determinations because it “clearly provides for judicial review of them in enforcement proceedings. . .and in actions challenging adverse permitting decisions.” Until then, the agencies must be able to administer the CWA “without becoming entangled in premature litigation.”

Applying the National Association of Home Builders decision to EPA’s recent designation of the L.A. River Basin as a “traditional navigable water” suggests that there is a significant hurdle to challenging that determination in court unless and until the EPA brings an enforcement action against a party or the Corps issues an adverse permitting decision.

For more information on this alert, please contact:

Rick Rothman, Partner, 213.680.6590

This article was originally published by Bingham McCutchen LLP.