UNPUBLISHED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Affirmed by unpublished per curiam opinion.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-
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. Bryson, Seth M. Barsky, David Kaplan, Environment & Natural

Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, 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Unpublished opinions are not binding precedent in this circuit.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

2 NAT’L ASS’N OF HOME BUILDERS v. USACE
that serve as habitat for migratory birds." Nat’l Ass’n of Home Builders 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 omitted). Appellants subsequently brought this action challenging this portion 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 isolated water bodies that served as habitat for migratory birds exceeded

the bounds of the CWA; and that, to the extent the direction to exercise jurisdiction did not violate the CWA, it violated the Commerce

Clause. 

The district court referred the action to a magistrate judge, who recommended dismissal for lack of subject matter jurisdiction. Specifically, 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 accordingly it dismissed the case. 

II.

After reviewing the parties’ briefs and the applicable law, and having 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 guidance 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. 

NAT’L ASS’N OF HOME BUILDERS v. USACE 3