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 cooperative 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 permitting 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 Coordination Agreement (ICA) among the various agencies responsible for water regulation in Lake County, Illinois. The

Chicago District of the U.S. Army Corps of Engineers

(Corps), the Lake County Stormwater Management Commission (LCSMC), the Lake County Soil and Water Conservation 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 administering the § 404 permit program has been further delegated 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 reference 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’ adoption 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 represents the Corps’ effort to work effectively with its local

counterparts, including the LCSMC, which is the primary

permitting authority for the administration and enforcement of the stormwater management provisions of Lake

County’s Watershed Development Ordinance, and the

LCSWCD, which is a special district authorized to promote 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 investigate 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 onsite 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 requirements 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 successive complaints. In each, Home Builders sued 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 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 impossible because their discretionary nature precluded a finding 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 question 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 pleadings 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 understood in the APA, review is still unavailable if “(1) statutes preclude judicial review; or (2) agency action is committed 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 satisfied 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 consequences 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 impact is sufficiently direct and immediate and has a direct effect . . . 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 district court focused in particular on the fact that these

provisions are framed in discretionary terms and therefore “do not bind the Corps to any particular course of

action.” If discretion is so complete that meaningful standards for judicial review are lacking, then that would be

an unobjectionable ground. Some care is necessary, however, 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 considered 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 Commissioner 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 Supreme 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 comfortably 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 statutory 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 prosecution decision. Nor does the ICA lack language on which

we might base our review or leave in doubt the particulars 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 procedures 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 determined,” 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 withheld. See Nat’l Park Hospitality Ass’n v. Dept. of the Interior, 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 declaration of [her] legal rights”); see also FTC v. Standard

Oil of Cal., 449 U.S. 232, 242 (1980) (noting that complying with additional administrative proceedings “is different 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 circuits 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 second 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 applicants 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 (provisions 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 permitting 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 application 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 conflicting 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 compliance 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 permitees 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 between 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 governments than that required by the federal government,

at least as to waters subject to joint federal-state jurisdiction. 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 provisions, 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 Wireless 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 conferred upon it by Congress.

This is precisely what the plaintiff succeeded in demonstrating 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 applicants 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 permitting 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 arguments. 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 action 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 challenge 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 indication 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 challenged 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 continuing . . . operations of the BLM.” Id. at 890. Accordingly,

the Court found that the procedural framework for determining possible private uses lacked the finality necessary 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 purported 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 procedures of the Contract Disputes Act. Id. Under the circumstances, 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 development 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, whether 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 contends 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 demanding 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 Builders 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 provision 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 desired condition.” Id. In the face of that language, it is

impossible to maintain that there is no set of circumstances 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 challenge 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