Continuing Challenges to the Assertion of Federal Regulatory Authority Over Navigable Waters


On May 15, 2015, the Court of Appeals for the District of Columbia Circuit again ruled that the National Association of Home Builders lacked representational standing to challenge a “preliminary, internal determination” made by EPA and the US Army Corps of Engineers in 2008 that two stretches of the Santa Cruz River in Southern Arizona are traditional navigable waters. The case is National Association of Homebuilders, et al., v. EPA.

Holding that it was bound by the first standing decision in this matter made by an earlier panel of the court (reported at 667 F.3d 6 in 2011), the DC Circuit held that the plaintiffs, a trade group whose members include land owners owning property in the Santa Cruz River watershed that wish to develop their properties, failed to demonstrate to the court that the new declarations of harm that will allegedly result from this determination sufficiently overcame the standing deficiencies noted in that initial decision. The land owners asserted that the determination harmed them by making it more likely than not that they will need federal permits before they can discharge dredged or fill material on their property. The plaintiffs characterized the agencies’ determination of navigability as a binding legislative rule made without any public notice or comment, and they sought a declaratory ruling that the rule was invalid.

The Court of Appeals noted that the internal determination that these stretches of the river were traditional navigable waters does not necessarily determine the applicability of the Clean Water Act to their properties, and they were unable to establish to the Court of Appeals’ satisfaction that any cognizable injury resulted from this determination. Two of the judges sitting on the panel concurred, noting while they were bound by the standing determination of the first panel, that opinion was at odds with other standing decisions of the circuit holding that standing to challenge a “rule” does not require waiting for a government enforcement. However, as the Court of Appeals also noted, there is now a conflict in the circuits regarding whether litigants may seek immediate review of a jurisdictional determination of federal Clean Water Act jurisdiction, citing the recent decision of the Fifth Circuit (Belle Company, LLC. et al., v.US Army Corps of Engineers) and the Eighth Circuit (Hawkes Co., Inc., et al., v U.S. Army Corps of Engineers), although this issue was not critical to the disposition of this matter. Somewhat surprisingly, on Monday, May18, 2015, the Supreme Court requested the Corps of Engineers to respond to a request that the Court take another look at the Belle Co LLC decision of the Fifth Circuit in the wake of the recent Eighth Circuit ruling in the Hawkes case.