Two stretches of Arizona's Santa Cruz River are still legally "navigable" much to the chagrin of a home builders agency after the D.C. Circuit Court of Appeals ruled in favor of the Environmental Protection Agency.
The National Association of Home Builders and its two Arizona affiliates had tried to challenge the EPA's recent designation of the two river sections. The designation is important to home builders because streams that are legally navigable fall under the federal Clean Water Act, which imposes restrictions on any discharges into water that leads to those streams.
The association's attorneys claim the designation defies logic since the river allegedly does not fit the definition of a continuous stream.
Instead of determining whether the EPA had made the appropriate legal decision, however, a three-judge panel unanimously ruled that the association had no legal standing to challenge the agency's actions in the first place since it failed to establish organizational standing by showing "such a personal stake in the outcome of the controversy as to warrant the invocation of federal court jurisdiction."
The D.C. Circuit ruled that the organization did now show a concrete and demonstrable injury to the group's activities that equated to "more than simply a setback to the organization's abstract social interests." The association's expenditures in relation to clarifying the Clean Water Act's jurisdiction was too in concert with its typical advocacy costs.
Further, the lawsuit did not qualify for representational or procedural standing because there was no proof of imminent injury.
Since the association and its affiliates did not technically lose on the merits, however, they have suggested that a new lawsuit may be filed that sidesteps the problem of lack of legal standing.
- National Association of Home Builders v. Environmental Protection Agency (D.C. Circuit Court of Appeals)
- Will CSAPR Join the Ghosts of EPA Regulations Past? (FindLaw's D.C. Circuit blog)
- Motion to Remand Challenge to Clean Water Act Rule Granted (FindLaw's Fifth Circuit blog)