Persistence is a good trait in the arena of appellate advocacy, but sometimes it is difficult to know when to keep pushing or when to stop.  It may be that a signal was sent in the concurrence written by Senior Circuit Judge Silberman, with whom Senior Circuit Judge Sentelle joined, to keep pushing.  Judge Silberman wrote, “And Home Builders should be able to easily establish standing upon the government’s issuance of either an “approved jurisdictional determination” or permit applying the navigability determination (rule?).” National Association of Home Builders v. EPA, No. 13-5290, (D.C. Cir. May 15, 2015). 

The opinion written by Circuit Judge Pillard suggested, “Our opinion in Home Builders I cannot be used as a mere instruction manual on how Home Builders might correct defects in its claim of standing by doing a better job of pleading preexisting facts and arguing the law more forcefully in a new case.”  The Court concluded, “We are bound by the conclusion in Home Builders I that Plaintiffs alleged no actual or imminent harm that is sufficiently concrete and particularized to support their Article III standing.  Because Home Builders have not found a new cure for the fatal standing defect in their first suit, issue preclusion must bar this second attempt.”  The message here appears to be stop pushing on bad facts.

The National Association of Home Builders had brought a second case before the D.C. Circuit in its effort to seek review and create a better administrative process by the federal agencies seeking public notice and comment prior to the finalization of a navigability determination.  The court ruled that the Home Builders’ did not present new information about injury in fact from the navigability determination and therefore the original ruling stands.  In 2008 EPA affirmed the Army Corps of Engineers’ Los Angeles District navigability determination with regard to a certain portion of the Santa Cruz River.  The Home Builders’ asserted that land located within the river’s reaches was impacted and therefore they had standing to see review of the agencies’  actions.  The Home Builders’ had came back to the D.C. Circuit after the initial case, National Association of Home Builders v. EPA (“Home Builders I”), 667 F.3d 6 (D.C. Cir. 2011).  In that case it was contended that the agencies’ navigability determination had cognizably harmed them by making it more likely that they will need Clean Water Act permits to discharge on their land.

Before dismissing this case as a failed return attempt, a careful read of the opinion is warranted.  The Court suggests, “A bright-line rule certainly would make things clearer for landowners like Home Builders, but the Act contains no such rule.”  Such language might be read to be a reference to the difficulties presented by the draft definition of “Waters of the United States” that the agencies’ (EPA and USCOE) proposed for comment last year.  That regulatory attempt at a “bright-line rule” was asserted by many to be unsupported by the Clean Water Act.  It just may be this panel of the D.C. Circuit agrees with that conclusion.

The opinion also notes the difficulty presented with seeking judicial review of an approved jurisdictional determination as evidenced by recent cases in other federal appellate circuits.  The Court provides, “And, to the extent that an approved JD relied on the Santa Cruz River TNW Determination, that determination would be subject at least to immediate administrative appeal.”  A footnote is attached to this statement as follows,

There is some question whether landowners may seek immediate judicial review of an approved JD, other than within a challenge to a compliance order, permit denial, or other action applying the JD.  The Fifth and Ninth Circuits say no, because issuance of an approved JD is not an action “’by which right or obligations have been determined, or from which legal consequences will flow,’” Belle, 761 R.3d at 388, 390-94 (quoting Bennett v. Spear, 520 U.S. 154, 178 (1997)); Fairbanks, 543 F. 3d at 591, 593-97 (same).  The Eighth Circuit, by contrast, recently held that an approved JD, even without more, is subject to immediate judicial review.  Hawkes, 2015 WL 1600465, at *4-7.  We express no opinion on the question.

The footnote suggests the question is specifically noteworthy.  When can a party seek review of the illusive regulatory definition of “waters of the United States”?  The Federal Appellate Courts are not in agreement on the answer.

In conclusion, the facts of these Home Builders cases may not be good to demonstrate standing, but the law coming from these cases has facilitated a dialogue by the D.C. Circuit about the unsettled state of affairs relative to our “waters of the United States” and the role the judiciary, the administrative agencies and the regulated community with regard to related “navigability determination rules(?)”.  I read the message from this panel of judges as keep pushing….