United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 20, 2011 Decided December 9, 2011
No. 10-5341
NATIONAL ASSOCIATION OF HOME BUILDERS ET AL.,
APPELLANTS
v.
ENVIRONMENTAL PROTECTION AGENCY ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-CV-00548)
Norman D. James argued the cause for the appellants.
Duane J. Desiderio entered an appearance.
Katherine J. Barton, Attorney, United States Department
of Justice, argued the cause for the appellees. Andrew J. Doyle
and Aaron P. Avila, Attorneys, were on brief. R. Craig
Lawrence, Assistant United States Attorney, entered an
appearance.
Before: GINSBURG, HENDERSON and KAVANAUGH, Circuit
Judges.*
*
As of the date the opinion was published, Judge Ginsburg had
taken senior status.
2
Opinion for the Court filed by Circuit Judge HENDERSON.2
KAREN LECRAFT HENDERSON, Circuit Judge: The National
Association of Home Builders and its member organizations,
Southern Arizona Home Builders Association and Home
Builders Association of Central Arizona, appeal the dismissal of
their lawsuit challenging the determination (Determination) by
the United States Army Corps of Engineers (Corps) and the
Environmental Protection Agency (EPA) (collectively,
Agencies) that two reaches of the Santa Cruz River in southern
Arizona constitute “traditional navigable water[s]” (TNW)3 so
as to come within the Agencies’ regulatory authority under the
Clean Water Act (CWA).4 NAHB challenges the TNW
2
Circuit Judge Kavanaugh concurs in the opinion except for Part
II.B.1.
3
The “traditional definition” of “ ‘navigable waters’ . . . required
that the ‘waters’ be navigable in fact, or susceptible of being rendered
so.” See Rapanos v. United States, 547 U.S. 715, 730 (2006)
(plurality) (citing The Daniel Ball, 77 U.S. (10 Wall.) 557, 563
(1871)); see also Solid Waste Agency of N. Cook Cty. v. U.S. Army
Corps of Eng’rs, 531 U.S. 159, 172 (2001) (Congress has “traditional
jurisdiction over waters that were or had been navigable in fact or
which could reasonably be so made.”); Consol. Hydro, Inc. v. FERC,
968 F.2d 1258, 1259-60 (D.C. Cir. 1992) (“The Supreme Court has
held that waterways are ‘navigable’ if they form ‘in their ordinary
condition by themselves, or by uniting with other waters, a continued
highway over which commerce is or may be carried on with other
States or foreign countries in the customary modes in which such
commerce is conducted by water.’ Moreover, ‘once found to be
navigable, a waterway remains so.’ ” ) (quoting The Daniel Ball, 10
Wall. at 563).
4
The three affiliated appellants make their arguments collectively
as “Home Builders.” For convenience, we treat them as a single entity
under the parent organization’s acronym, NAHB.
3
Determination as both procedurally and substantively defective.
The district court dismissed the complaint for lack of subject
matter jurisdiction on the ground the CWA precludes a pre-
enforcement challenge to a TNW Determination. We affirm the
dismissal on the alternative jurisdictional ground that the
appellants lack standing under Article III of the United States
Constitution. See Moms Against Mercury v. Food & Drug
Admin., 483 F.3d 824, 826 (D.C. Cir. 2007) (“Where both
standing and subject matter jurisdiction are at issue . . . , a court
may inquire into either and, finding it lacking, dismiss the
matter without reaching the other.”) (citing Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 584 (1999)).5
I.
The CWA provides that “the discharge of any pollutant by
any person”—i.e., “any addition of any pollutant to navigable
waters from any point source”—“shall be unlawful” unless it
complies with one of several enumerated CWA provisions,
including sections 402 and 404. 33 U.S.C. §§ 1311(a),
1362(12).6 Section 404 and 402 authorize the Agencies to issue
permits, after notice and an opportunity for public hearing, to
discharge into navigable waters dredged and fill material and
other pollutants. 33 U.S.C. §§ 1344, 1342; see Nat’l Ass’n of
Home Builders v. U.S. Army Corps of Eng’rs, 440 F.3d 459, 461
n.1 (D.C. Cir. 2006) (under CWA section 404, Corps issues
5
Accordingly, we express no opinion regarding the district court’s
or this court’s jurisdiction over a pre-enforcement challenge.
6
The CWA defines “pollutant” as “dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and industrial,
municipal, and agricultural waste discharged into water.” 33 U.S.C.
§ 1362(6).
4
permits to discharge dredged and fill material and under section
402, EPA issues permits to discharge other pollutants). The
CWA defines “navigable waters” as “the waters of the United
States, including the territorial seas,” 33 U.S.C. § 1362(7), a
definition that has been construed to include certain adjacent
waters and wetlands that are not themselves navigable. See
Rapanos v. United States, 547 U.S. 715, 759 (2006).7
On May 23, 2008, the Corps issued a memorandum reciting
that the two “[Santa Cruz] Reaches are navigable-in-fact, and
thus a TNW, susceptible to use in interstate commerce
associated with recreational navigation activities” and,
7
The Supreme Court has recognized that “the term ‘navigable’ is
of ‘limited import’ and that Congress evidenced its intent to ‘regulate
at least some waters that would not be deemed “navigable” under the
classical understanding of that term.’ ” Solid Waste Agency of N.
Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 167 (2001)
(quoting United States v. Riverside Bayview Homes, Inc., 474 U.S.
121, 133 (1985)); see supra note 2. The Court has not reached
consensus, however, on the extent of the term’s jurisdictional reach.
In Rapanos, four justices limited “navigable water[s]” to “[o]nly those
wetlands with a continuous surface connection to bodies that are
‘waters of the United States’ in their own right, so that there is no clear
demarcation between ‘waters’ and wetlands.” 547 U.S. at 742 (Scalia,
J., plurality opinion). The four dissenting justices would have upheld
the Corps’s interpretation that extended coverage to “all traditionally
navigable waters; tributaries of these waters; and wetlands adjacent to
traditionally navigable waters or their tributaries.” Id. at 792 (Stevens,
J., dissenting). Justice Kennedy drew the line somewhere between,
extending coverage to waters or wetlands that “possess a ‘significant
nexus’ to waters that are or were navigable in fact or that could
reasonably be so made.” Id. at 759 (Kennedy, J. concurring in
judgment) (quoting Solid Waste Agency of N. Cook Cty., 531 U.S. at
167). In 2007, the EPA and the Corps jointly issued a new guidance
adopting a “significant nexus” standard. See Precon Dev. Corp. v.
U.S. Army Corps of Engineers, 633 F.3d 278, 282-83 (4th Cir. 2011).
5
accordingly, they “are subject to the jurisdiction of Section 404
of the CWA.” May 23, 2008 Memorandum for the Record of
Col. Thomas H. Magness, Dist. Dir., U.S. Army, at 5-6 (Compl.
ex. 2). On December 3, 2008, the EPA issued a letter setting out
its own “determination to affirm the [Corps’s] designation of the
two reaches as TNWs.” Dec. 3, 2008 Letter to John Paul
Woodley, Jr., Asst. Sec’y of the Army (Civil Works), from
Benjamin H. Grumbles, Asst. Adm’r, EPA, at 2 (Compl. ex. 1).
NAHB filed this action in March 2009, challenging the
TNW Determination insofar as it “has the effect of expanding
the agencies’ jurisdiction over dry desert washes, arroyos and
other water features within the Santa Cruz River watershed
under the Clean Water Act.” Compl. ¶ 2. The complaint sets
out two claims, asserted both on NAHB’s own behalf and in its
representational capacity on behalf of individual members.
Count 1 challenges the TNW Determination as violative of the
Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq.,
because the Agencies provided no notice or opportunity to be
heard before issuing the TNW Determination. Count 2
challenges the substance of the TNW Determination as
unlawful. The complaint seeks declaratory and injunctive relief,
requesting that the district court (1) declare the TNW
Determination to be invalid and (2) “set aside the TNW
Determination[] . . . and enjoin the Corps and EPA from relying
on the TNW Determinations in any future jurisdictional
determinations in the Santa Cruz River watershed.” Compl. 19-
20.
On August 18, 2010, the district court granted the Agencies’
motion to dismiss for lack of jurisdiction under Fed. R. Civ. P.
12(b)(1) on the ground the CWA precludes pre-enforcement
judicial review of a TNW Determination. See Nat’l Ass’n of
Home Builders v. U.S. EPA, 731 F. Supp. 2d 50 (D.D.C. 2010).
In light of its disposition, the court declined to reach the
Agencies’ alternative grounds for dismissal, including NAHB’s
6
lack of Article III standing. NAHB filed a timely notice of
appeal.
II.
“Because Article III limits the constitutional role of the
federal judiciary to resolving cases and controversies, a showing
of standing ‘is an essential and unchanging’ predicate to any
exercise of our jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94
F.3d 658, 663 (D.C. Cir. 1996) (en banc) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citation
omitted)). “The ‘irreducible constitutional minimum of standing
contains three elements’: (1) injury-in-fact, (2) causation, and
(3) redressability.” Ass’n of Flight Attendants v. U.S. Dep’t of
Transp., 564 F.3d 462, 464 (D.C. Cir. 2009) (quoting Lujan, 504
U.S. at 560-61 (quotation marks omitted)). “Thus, to establish
standing, a litigant must demonstrate a ‘personal injury fairly
traceable to the [opposing party’s] allegedly unlawful conduct
and likely to be redressed by the requested relief.’ ” Id. (quoting
Allen v. Wright, 468 U.S. 737, 751 (1984) (alteration in Allen)).
We conclude that NAHB has not demonstrated an injury in fact
traceable to the TNW Determination to establish standing—
either in its own right or on behalf of its members.
A. Organizational Standing
To establish organizational standing, NAHB must “allege[]
such a ‘personal stake’ in the outcome of the controversy as to
warrant the invocation of federal-court jurisdiction”; that is, it
must demonstrate that it has “ ‘suffered injury in fact,’ including
‘[s]uch concrete and demonstrable injury to the organization’s
activities—with [a] consequent drain on the organization's
resources—constitut[ing] . . . more than simply a setback to the
organization’s abstract social interests.’ ” Nat’l Taxpayers
Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C. Cir.
1995) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363,
378-79 (1982)). This NAHB has not done.
7
NAHB alleges it has “spent considerable staff time and
monetary resources in the quest to clarify CWA jurisdiction,”
such as submitting comments to the EPA and to the Corps,
testifying before the United States Senate and participating in
“numerous court cases,” including this one. Compl. ¶ 21; Decl.
of Thomas J. Ward, NAHB Vice President of Litig. & Legal
Servs. ¶¶ 8, 17-19 (filed Feb. 4, 2010) (Ward Decl.). But these
claims do not suffice. First, this litigation’s expenses do not
qualify as an injury in fact. See Spann v. Colonial Village, Inc.,
899 F.2d 24, 27 (D.C. Cir. 1990) (“An organization cannot, of
course, manufacture the injury necessary to maintain a suit from
its expenditure of resources on that very suit.”). As for the other
expenditures claimed, NAHB has not shown they were for
“operational costs beyond those normally expended” to carry out
its advocacy mission. Nat’l Taxpayers Union, 68 F.3d at 1434
(association’s “self-serving observation that it has expended
resources to educate its members and others regarding
[challenged statutory provision] does not present an injury in
fact”); id. (“The mere fact that an organization redirects some of
its resources to litigation and legal counseling in response to
actions or inactions of another party is insufficient to impart
standing upon the organization.” (quotation marks omitted));
Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1162
(D.C. Cir. 2005) (“Here, the only ‘service’ impaired is pure
issue-advocacy—the very type of activity distinguished by
Havens.” (citing Havens, 455 U.S. at 379)). Because NAHB has
not asserted the alleged violation “perceptibly impaired” a non-
abstract interest, we conclude it has not shown organizational
standing sufficient to satisfy Article III. See Havens, 455 U.S.
at 379.
B. Representational Standing
NAHB also claims representational standing on behalf of its
members. To establish representational standing, an association
must demonstrate that “ ‘(a) its members would otherwise have
8
standing to sue in their own right; (b) the interests it seeks to
protect are germane to the organization's purpose; and (c)
neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.’ ” Ass’n of
Flight Attendants, 564 F.3d at 464 (quoting United Food &
Commercial Workers Union Local 751 v. Brown Group, Inc.,
517 U.S. 544, 553 (1996) (quotation marks omitted)). To obtain
injunctive relief in particular, as NAHB seeks to do, it must
show under the first prong of the test that at least one of its
members “is under threat of suffering ‘injury in fact’ that is
concrete and particularized; the threat must be actual and
imminent, not conjectural or hypothetical”; it “must be fairly
traceable to the challenged action of the defendant”—namely the
TNW Determination—and “it must be likely that a favorable
judicial decision will prevent or redress the injury.” Summers v.
Earth Island Inst., 555 U.S. 488, 493 (2009) (quoting Friends of
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
180-81 (2000)). While the burden of production to establish
standing is more relaxed at the pleading stage than at summary
judgment, a plaintiff must nonetheless allege “ ‘general factual
allegations of injury resulting from the defendant’s conduct’ ”
(notwithstanding “the court ‘presum[es] that general allegations
embrace the specific facts that are necessary to support the
claim’ ”). Sierra Club v. EPA, 292 F.3d 895, 898-99 (D.C. Cir.
2002) (quoting Lujan, 504 U.S. at 561 (alteration in Sierra
Club)). NAHB has not carried this burden because it has neither
sufficiently alleged nor persuasively demonstrated any threat of
injury in fact to any of its members that is “fairly traceable to”
the TNW Determination.
1.
The complaint alleges that “[m]any of [NAHB’s] members
have or will attempt to obtain permits under Section 404 that
authorize discharges of fill materials into waters within the
federal CWA jurisdiction in connection with their projects” and
9
“have an interest in the manner in which such regulation takes
place, including the types of watercourses that are subject to the
agencies’ regulatory jurisdiction.” Compl. ¶ 30. NAHB does
not explain, however, how the TNW Determination adversely
affects either the “manner” of regulation or, with any specificity,
the “types of watercourses” subject to regulation. NAHB does
not here contest “whether the Santa Cruz River itself may be
subject to Clean Water Act jurisdiction—an issue that is not
raised in this action.” Compl. ¶ 2. Yet this is the only issue the
TNW Determination in fact resolved. See Compl. exs. 1, 2. It
did not determine whether any particular “watercourse” other
than the two reaches of the Santa Cruz River itself (“dry desert
washes, arroyos and other water features,” Compl. ¶ 2) is
jurisdictional and therefore subject to the CWA’s permit
requirements. The Agencies decide through an individual site-
specific “jurisdictional determination” whether a particular
watercourse in the Santa Cruz River watershed is within their
CWA jurisdiction, using the jointly developed “Rapanos
Guidance” document8 and based on the particular watercourse’s
“nexus” to waters the Agencies have determined to be TNW (in
this case the Santa Cruz’s two reaches). See Precon Dev. Corp.
v. U.S. Army Corps of Engineers, 633 F.3d 278, 282-83 (4th Cir.
2011); 33 C.F.R. § 331.2 (“Approved jurisdictional
determination means a Corps document stating the presence or
absence of waters of the United States on a parcel or a written
statement and map identifying the limits of waters of the United
8
EPA and Army Corps of Engineers Guidance Regarding Clean
Water Act Jurisdiction after Rapanos v. United States & Carabell v.
United States, http://www.usace.army.mil/CECW/Documents/cecwo/
reg/cwa_guide/cwa_juris_2dec08.pdf (dated December 2, 2008)
(visited November 30, 2011); see also EPA and Army Corps of
Engineers Guidance Regarding Identification of Waters Protected by
the Clean Water Act, 76 Fed. Reg. 24,479 (May 2, 2011) (notice of
availability of and request for comments on proposed new guidance).
10
States on a parcel.”). Unless and until such a jurisdictional
determination applies the TNW Determination to particular
property (and its watercourses) and finds a sufficient nexus—or
the Agencies use the TNW Determination in an enforcement
action against a party discharging without a permit—the owner
or developer of the property suffers no incremental injury in fact
from the TNW Determination and any challenge to it is
therefore premature. In the meanwhile, NAHB members face
only the possibility of regulation, as they did before the TNW
Determination: Any watercourse on their property may (or may
not) turn out to be subject to CWA dredging permit
requirements because of a nexus (or not) with the two Santa
Cruz reaches. See Lujan, 504 U.S. at 561 (“[T]he plaintiff must
have suffered an injury in fact . . . which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical.” (citations and quotation marks omitted). Even
before the TNW Determination, property owners and developers
were aware the two Santa Cruz reaches could be so designated
and other watercourses could, in turn, be considered CWA
“navigable waters” because of their nexus to the Santa Cruz
reaches. It was in part because of landowners’ inquiries about
their properties’ jurisdictional status that the Corps undertook to
perform the TNW Determination. See Mem. from Chip Smith,
Asst. for Env’t, Tribal & Regulatory Affairs, Office of the Asst.
Sec’y of the Army (Civil Works), at 1 (June 13, 2008) (Smith
Mem.). In the TNW Determination, the Agencies announced
the jurisdictional status of the two Santa Cruz reaches—but
without a jurisdictional determination (or enforcement action)
based thereon, an individual property remains unaffected by the
TNW Determination, which does not purport to apply to any
watercourse thereon.
Citing no authority, NAHB argues that the TNW
Determination “foreclos[es] the issue of the nearest TNW for
site-specific [jurisdictional determinations] within the
watershed.” Appellants’ Br. 59. We see no reason, however,
11
that an individual landowner or developer may not contest the
TNW Determination in a challenge to a site-specific
jurisdictional designation under the judicial review provisions of
the CWA and implementing regulations. See 33 U.S.C.
§ 1319(b) and 33 C.F.R. § 326.5 (providing for judicial actions
by Agencies to enforce compliance or cease-and-desist order or
to obtain penalties); 33 U.S.C. § 1319(g) and 33 C.F.R. § 326.6
(providing for judicial review of penalties); see, e.g., Rapanos
v. United States, supra (reviewing Corps jurisdictional
determinations in proceeding arising from both enforcement
actions against developers and appeal of property owner’s
permit denial). Nor are we swayed by NAHB’s assertion that its
members now face “the choice of applying for a permit for
activities that are outside the scope of the agencies’ authority
under the CWA or face significant civil or criminal enforcement
penalties for failing to do so.” Appellants’ Br. 59. These are the
same statutory and regulatory alternatives NAHB members
faced before the TNW Determination. See 33 U.S.C. § 1319; 33
C.F.R. § 326.1-326.6. Without an additional allegation that the
TNW substantially increased the risk of regulation or
enforcement relating to particular property, we have no basis to
conclude the TNW caused a “concrete and particularized” and
“actual or imminent” threat to any landowner, let alone any
particular NAHB member. Lujan, 504 U.S. at 561.
2.
NAHB also cites supporting declarations to establish its
members’ standing. One declarant recites he is “personally
aware of NAHB members that recently applied for and received
authorization to discharge stormwater under CWA Section 402
in connection with construction activities on lands within the
Santa Cruz River watershed and where the receiving water was
identified as the Santa Cruz River.” Ward Decl. ¶ 9. But the
declarant fails to explain whether the TNW Determination
motivated the landowner to seek an application for a permit or
12
how the relief NAHB seeks—declaratory and injunctive
relief—would remedy the past injuries the members may have
already incurred in applying for the permits. See City of Los
Angeles v. Lyons, 461 U.S. 95, 105 (1983) (plaintiff’s “standing
to seek the injunction requested depended on whether he was
likely to suffer future injury”; allegation of past injury “does
nothing to establish a real and immediate threat ” justifying
injunctive relief) (emphasis added). Another declarant claims
“personal knowledge of at least one [member] that owns land
within the Santa Cruz River watershed and is applying for a
Clean Water Act permit in connection with development
activities on its land”; she does not explain, however, why the
member’s decision to apply is directly traceable to the TNW
Determination, which applies only to the two Santa Cruz reaches
themselves and not to any other watercourse within the river’s
watershed, including any watercourse that may be on the
unidentified land belonging to the unidentified member. Decl.
of Jessica D. Whyde, Southern Arizona Home Builders
Association President ¶ 11. The declaration says nothing about
the property, the watercourse affected by the landowner’s
project or the greater likelihood of regulation, if any, after than
before the TNW Determination. The declarant further avers
generally that “many . . . members are homebuilders and real
estate developers” who “regularly” undertake construction
projects which “cannot be conducted without impacting desert
washes and other ephemeral drainage features . . . found on
many parcels of land within the Santa Cruz River watershed in
Pima County”; other members “own land within th[e] area, and
thus will be impacted by the agencies’ declaration that the two
segments of the Santa Cruz River are traditional navigable
waters.” Id. ¶¶ 5, 10. The declarant does not assert, however,
that any member plans in fact to discharge contaminants into a
likely jurisdictional watercourse anytime soon. Thus, the
declarations “fall short of establishing certainly impending
dangers for any particular member of the petitioners’
13
associations.” Am. Chem. Council v. Dep’t of Transp., 468 F.3d
810, 819 (D.C. Cir. 2006); see id. at 819-20 (“[i]t is not enough
to allege that petitioners’ associations comprise the majority” of
affected individuals; without submissions of affidavits from
individual members, “[w]e decline to assume missing links”);
see also Sierra Club, 292 F.3d at 901-02 (counsel’s allegation
of injuries not within personal knowledge “are not evidence”
and “serve[] only to illustrate why we require more than
representations of counsel in order to establish a complainant’s
standing”); id. at 902 (maps of affected area showing location of
members and list of mailing addresses insufficient to
demonstrate injury to any particular member).
C. Procedural Standing
Finally, NAHB claims that even if it has not established a
substantive injury to support its standing, it nonetheless has
“procedural” standing to challenge the Agencies’ failure to
provide notice and an opportunity to submit comments pursuant
to the APA. See 5 U.S.C. § 553(b), (c). This argument fails as
well and for the same reason—no imminent injury in fact has
been alleged.
In Summers v. Earth Island Institute, the Supreme Court
made clear that “deprivation of a procedural right without some
concrete interest that is affected by the deprivation—a
procedural right in vacuo—is insufficient to create Article III
standing.” 555 U.S. at 496. Yet this is precisely what NAHB
claims here—a right in a void. That the Congress has accorded
a procedural right “can loosen the strictures of the redressability
prong of our standing inquiry”—so that standing may exist even
if the right to comment likely would not have succeeded in
persuading the agency to change its mind. Id. at 497. “Unlike
redressability, however, the requirement of injury in fact is a
hard floor of Article III jurisdiction that cannot be removed by
statute.” Id. Without an imminent threat of injury traceable to
the challenged action, that floor stands as a ceiling. See United
14
Transp. Union v. ICC, 891 F.2d 908, 918 (D.C. Cir. 1989)
(“[B]efore we find standing in procedural injury cases, we must
ensure that there is some connection between the alleged
procedural injury and a substantive injury that would otherwise
confer Article III standing. Without such a nexus, the
procedural injury doctrine could swallow Article III standing
requirements.”). And, as we have already explained, NAHB has
identified no such injury. See Summers v. Earth Island Inst.,
555 U.S. at 495-96 (affidavit failing to identify particular project
affecting member’s enjoyment of forest lands did not
sufficiently allege concrete injury under Defenders of Wildlife
v. Lujan).
For the foregoing reasons, we affirm the district court’s
dismissal of NAHB’s complaint for lack of jurisdiction on the
alternative ground that it lacks Article III standing to challenge
the Agencies’ TNW Determination.
So ordered.