Judges Considering Whether Determination On Navigable Water Harmed Home Builders

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By Amena H. Saiyid

Nov. 24 — Federal appellate judges tried to ascertain during Nov. 24 oral arguments whether home builders were indeed harmed monetarily by a 2008 traditional navigable waters determination of two reaches of the Santa Cruz River in southern Arizona.

Members of the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit asked the attorney for the National Association of Home Builders whether his clients had any new evidence to show economic harm from the determination.

“What new facts do you have?” Judge Laurence Silberman asked Norman James, an attorney with Phoenix-based Fennemore Craig PC who represented the NAHB, the Southern Arizona Home Builders Association and the Home Builders Association of Central Arizona at the oral arguments.

James reiterated that the injury would result from landowners having to seek Clean Water Act permits from the U.S. Army Corps of Engineers because of the determination that the two segments are traditional navigable waters. He acknowledged after much questioning that no landowner had received a final, approved jurisdictional determination for a specific project within those reaches.

A traditional navigable water determination makes a navigable river and all of its tributaries automatically subject to Clean Water Act protections, such as permitting requirements for discharges or dredge-and-fill activities.

The home builders have argued that such a determination means that any development activity within the watershed requires a permit and that making such a blanket determination should be subject to public notice and comment.

A jurisdictional determination, however, is conducted by the corps at the request of property owners who want to know whether they need a Clean Water Act permit for a specific project that may affect waters or wetlands found on their property. Whether preliminary or approved, this determination isn't considered final agency action until property owners seek a permit and are denied or enforceable actions are taken against them, according to the corps.

No Individuals Challenged 2008 Determination

Right at the outset, Judge David Sentelle asked why no individual member of the home builder groups had challenged the 2008 determination that the two segments of the river are traditional navigable waters and therefore automatically subject to permitting requirements.

Sentelle said he wanted to know if the traditional navigable water determination would indeed impose costly burdens on the members, as the associations have claimed in their briefs.

The home builder groups are appealing for the second time a July 2013 decision by the U.S. District Court for the District of Columbia that dismissed the lawsuit on grounds that they lack standing because they provided no proof that any of their members were adversely affected by the traditional navigable waters determination (Nat'l Ass'n of Home Builders v. EPA, 956 F. Supp. 2d 198, 77 ERC 1539, 2013 BL 199070 (D.D.C. (2013)).

The district court, followed by the D.C. Circuit, dismissed the first lawsuit that the home builder groups had filed in 2009 on the same grounds: lack of standing and inability to demonstrate evidence of injury to home builders.

Seeking Evidence of Injury

Silberman asked whether a preliminary jurisdictional determination sought by Jerry DeGarzia, a property owner in north Tucson, Ariz., was the only evidence of injury that the home builders could find.

In their opening brief, the home builders had included affidavits by three property owners who also are members who say the government's finding of traditional navigable waters will increase their regulatory burdens and costs associated with obtaining dredge-and-fill permits to construct developments.

After being repeatedly questioned, James acknowledged that no property owner had received an approved jurisdictional determination. He followed up by saying that the corps uses preliminary and approved jurisdictional determinations in permit applications and enforcement proceedings.

Standing Her Ground

The judges then turned their attention to Katherine Barton, a Justice Department attorney who represented both the EPA and the corps.

Again, Silberman took the lead in questioning Barton about the legality of jurisdictional determinations. He asked Barton to engage in hypothetical scenarios about viewing traditional navigable waters determination as a rulemaking subject to notice and comment.

Silberman asked Barton whether the home builders would violate the Clean Water Act if they failed to abide by the finding of traditional navigable waters or at the later stage by a jurisdictional determination.

Barton stood her ground, saying a traditional navigable water determination isn't a final agency action subject to judicial review and therefore has “no legal effect.”

Beginning of Judicial Review

Sentelle asked Barton to explain “when and where” does judicial review begin.

Does it begin “only when you are facing jail time?” Sentelle asked, incredulously.

After the arguments, James told reporters that the court had drawn a brighter line on proving injury than they expected. He also agreed that Silberman gave the home builders leeway when suggesting that the D.C. Circuit in its first go round didn't specify that a jurisdictional determination had to be approved to show injury.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com


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