National Ass'n of Home Builders v. Environmental Protection Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 24, 2014 Decided May 15, 2015

No. 13-5290

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. 1:13-cv-00078)

Norman D. James argued the cause for appellants. With

him on the briefs was Aaron T. Martin. Felicia K. Watson

entered an appearance.

Katherine J. Barton, Attorney, U.S. Department of

Justice, argued the cause for appellees. With her on the brief

were Robert G. Dreher, Acting Assistant Attorney General,

and Andrew J. Doyle and Robert J. Lundman, Attorneys.

Before: PILLARD, Circuit Judge, and SILBERMAN and

SENTELLE, Senior Circuit Judges.

2

Opinion for the Court filed by Circuit Judge PILLARD.

Concurring opinion filed by Senior Circuit Judge

SILBERMAN, joined by Senior Circuit Judge SENTELLE.

PILLARD, Circuit Judge: We addressed the basic

controversy in this case in Nat’l Ass’n of Home Builders v.

EPA (“Home Builders I”), 667 F.3d 6 (D.C. Cir. 2011), which

dismissed a similar suit involving the same parties for want of

constitutional standing. In both that case and this one, trade-

group plaintiffs (collectively, Home Builders) challenged a

preliminary, internal determination, made by the

Environmental Protection Agency and the United States

Army Corps of Engineers in 2008, that two stretches of the

Santa Cruz River in southern Arizona are traditional

navigable waters. The Clean Water Act regulates “waters of

the United States.” 33 U.S.C. § 1362(7); see Rapanos v.

United States, 547 U.S. 715, 722-23 (2006) (plurality); id. at

760-61 (Kennedy, J., concurring). Some of Home Builders’

members own property within the Santa Cruz River watershed

that they wish to develop. They contend that the agencies’

2008 navigability determination has cognizably harmed them

by making it more likely that they will need Clean Water Act

permits to discharge on their land. They assert that the Corps’

memorandum and the EPA’s letter concluding that the

relevant stretches of the Santa Cruz River are traditional

navigable waters announced a final, binding, legislative rule

unlawfully promulgated without public notice and comment,

thus depriving them of any opportunity to contest it. We hold

that Home Builders’ case for standing, although since

supplemented with new declarations from members adding

factual detail to their assertions of injury, is materially

unchanged and thus precluded by Home Builders I.

3

I.

The Clean Water Act requires a permit for any discharge

of pollutants into the “waters of the United States.” 33 U.S.C.

§§ 1319, 1342, 1344, 1362(7). The Army Corps of Engineers

is responsible for permitting discharges of “dredged or fill

material,” id. § 1344, and the EPA (or a coordinate state

agency) does the permitting for discharges of wastewater or

other pollutants, id. § 1342. In either case, the agency notifies

the public and provides a hearing before ruling on a permit

application. Id. §§ 1342(a)(1), 1344(a); 33 C.F.R. § 325.3.

Precisely which watery—or even intermittently wet—

landscape features count as the “waters of the United States”

for purposes of Clean Water Act jurisdiction is not always

immediately obvious. The variability of natural geography,

and the myriad ways that water runs, washes, trickles, seeps,

or gushes, complicate the task of giving specificity to “waters

of the United States” under the Act. Landowners like Home

Builders’ members may often be uncertain whether to

undertake the cost and inconvenience of seeking a Clean

Water Act permit or whether, conversely, they might safely

dredge, fill, and discharge without one. A bright-line rule

certainly would make things clearer for landowners like

Home Builders, but the Act contains no such rule.

The Supreme Court’s most recent guidance on the matter

comes from the fractured decision in Rapanos, 547 U.S. 715,

where the Court considered whether wetlands adjacent to

tributaries of traditional navigable waters are subject to Clean

Water Act jurisdiction. Justice Scalia wrote for four members

of the Court supporting reversal and remand for further

consideration of the Corps’ asserted jurisdiction. That

plurality concluded that “waters of the United States,” while

not limited to waters that are navigable in the traditional

4

sense, see id. at 730-31, is confined to “only those relatively

permanent, standing or continuously flowing bodies of water

‘forming geographic features’ that are described in ordinary

parlance as ‘streams, oceans, rivers, and lakes,’” id. at 739

(internal alteration marks omitted). Providing a fifth vote to

reverse and remand, Justice Kennedy rejected as unduly

narrow the plurality’s reading of the Act’s text, structure and

purpose—a reading he thought makes “little practical sense in

a statute concerned with downstream water quality.” Id. at

769. The Act also applies to wetlands, he concluded, insofar

as they have a “significant nexus” with traditional navigable

waters. Id. at 779-82. Four dissenting Justices would have

deferred to the Corps’ assertion of its jurisdiction under what

they viewed as its longstanding, reasonable interpretation of

the Act as applicable to traditional navigable waters, their

tributaries, and wetlands adjacent to either. Id. at 792-93

(Stevens, J., dissenting).

To help agency personnel and the regulated community

understand the impact of Rapanos on implementation of the

Clean Water Act, the agencies in 2007 issued interpretive

guidance. The 2007 Rapanos Guidance concluded that the

Act extended only to traditional navigable waters (waters that

are navigable in fact), and non-navigable waters that have a

“significant nexus” with traditional navigable waters—a

narrowing of the agencies’ prior interpretation. See Home

Builders I, 667 F.3d at 10 & n.7, 13 n.8 (citing the agencies’

2007 Rapanos Guidance).

Landowners and developers who want to confirm how

such general standards apply to their particular circumstances

may, in advance of seeking a permit, solicit a written, site-

specific Jurisdictional Determination (JD) from the Corps. A

JD reflects the agency’s judgment about whether and to what

extent a property contains jurisdictional waters, and hence is

5

or is not subject to regulatory jurisdiction under the Clean

Water Act.1 See 33 C.F.R. §§ 320.1(a)(6), 331.2, 325.9. Both

EPA and the Corps use JDs in their respective spheres of

administration of the Act.

JDs may be issued as either “preliminary” or “approved.”

A preliminary JD is an advisory determination, not

administratively appealable, that indicates that “there may be

waters of the United States on a parcel,” and identifies aquatic

features on the property that could be affected by the

proposed activity. 33 C.F.R. § 331.2 (emphasis added).

Preliminary JDs are usually issued at the request of

landowners wishing “to voluntarily waive or set aside

questions regarding CWA[] jurisdiction” over their property,

such as where jurisdiction is clear or is otherwise not worth

contesting. U.S. Army Corps of Eng’rs, No. 08-02, Guidance

Letter: Jurisdictional Determinations (June 26, 2008)

(Appellant Br. Add. 17-23) (hereinafter “JD Guidance”), at 3;

see also id. at 6 (preliminary JDs render an “effective

presumption” of CWA jurisdiction). As part of a shortcut

into the permitting process, a preliminary JD does not make

an official designation of jurisdictional waters. See id. at 3, 6;

Corps Preliminary JD Form, Appellant Br. Add. 24-26; App.

at 311. Rather, an applicant willing to accept a preliminary

JD may move directly to permitting.

An approved JD, in contrast, is a considered statement of

the agency’s view of “the presence or absence of waters of the

United States on a parcel.” 33 C.F.R. § 331.2; see JD

1

See also Home Builders I, 667 F.3d at 10, 13-14 & n.8; Hawkes

Co. v. U.S. Army Corps of Eng’rs, No. 13-3067, 2015 WL

1600465, at *3 (8th Cir. Apr. 10, 2015); Belle Co. LLC v. U.S.

Army Corps of Eng’rs, 761 F.3d 383, 386-87, 390-91 (5th Cir.

2014); Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs,

543 F.3d 586, 589-90, 592-93 (9th Cir. 2008).

6

Guidance at 1. An approved JD thus announces the agency’s

official determination whether or not the parcel contains

either traditional navigable waters, or features such as washes,

tributaries or wetlands with a significant nexus to traditional

navigable waters, meaning that the Clean Water Act applies.

See Corps Approved JD Form, Appellant. Br. Add. 28-34.

The regulations characterize an approved JD as final agency

action. 33 C.F.R. § 320.1(a)(2), (6). As noted above, a party

can get a discharge permit with a preliminary JD. However,

if a party ever wants to pursue an administrative appeal

challenging Clean Water Act jurisdiction, an approved JD

must be in place. See JD Guidance at 2-5; see 33 C.F.R.

§§ 331.2-331.7. Thus, a party that believes that the agencies

have erroneously asserted Clean Water Act jurisdiction and

wishes to contest it must first obtain (or earlier have obtained)

an approved JD.

After the Supreme Court decided Rapanos and the

agencies issued their Rapanos Guidance, EPA and the Corps

made the traditional navigable waters determination (“TNW

Determination”) that Home Builders challenge here. In a

December 2008 letter from an EPA Assistant Administrator to

an Assistant Secretary of the Army, EPA communicated that

it had reviewed and was thereby affirming a navigability

determination made by the Army Corps of Engineers’ Los

Angeles District regarding the Santa Cruz River. The

District’s staff had concluded, based on evidentiary analysis

and on-site study, that two specified reaches of the Santa Cruz

are traditional navigable waters. In particular, the District

found that the reaches were deep and wide enough, with

sufficient flow, to be commercially and recreationally

navigated, that they had been so navigated, and were likely to

7

be in the future.2 EPA specified that the TNW Determination

was consistent with the Rapanos Guidance, and that the

agencies should immediately implement the determination in

pending and future JDs for the Santa Cruz watershed.

Without more, the agencies’ internal TNW Determination

did not necessarily decide the Clean Water Act’s applicability

to Home Builders’ properties. None of their properties is

alleged to be on the Santa Cruz River. For land positioned

away from the river, a JD could rely on the navigable reaches

of the Santa Cruz as a point of reference in its Rapanos

analysis, but would also have to contain a determination of a

“significant nexus” between waters on the property and the

navigable river reach. 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.3

2

The TNW Determination was made pursuant to a “special case”

classification by EPA under a 1989 Memorandum of Agreement

between the Corps and EPA, pursuant to which EPA, not the Corps,

makes final jurisdictional decisions for purposes of 33 U.S.C.

§ 1344.

3

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 rights or obligations have

been determined, or from which legal consequences will flow,’”

Belle, 761 F.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.

8

II.

A.

Home Builders filed their first lawsuit in 2009

challenging the agencies’ 2008 TNW Determination, which

identified reaches of the Santa Cruz River as traditional

navigable waters within the jurisdiction of the Clean Water

Act. The agencies disputed Home Builders’ standing to sue.

Home Builders claimed representational standing based on

asserted concrete injury to their members from the agencies’

designation of the Santa Cruz River—rather than the distant

Colorado River, for example—as the traditional navigable

water nearest to their property. Home Builders contended that

the TNW Determination put its members to the choice of

applying for a permit or facing enforcement penalties. They

emphasized the cost of getting permits, and claimed that the

TNW Determination burdened the investment and project-

development activities of their members. Home Builders

further argued that the agencies’ determination amounted to a

legislative rule, and that standing of regulated entities, such as

their members, to challenge legislative rules is self-evident.

The district court dismissed the case, and a prior panel of

this Court affirmed for want of standing.4 667 F.3d at 11-16.

4

We discuss in text those aspects of our prior holding relevant to

representational standing, the only theory of standing that Home

Builders assert in this case. Home Builders’ complaint also alleged

what they characterized as organizational injury, but they did not

brief that theory, which we rejected in Home Builders I. See 667

F.3d at 11-12. Nor do Home Builders reassert their previously

rejected argument that they have standing based on deprivation of a

procedural right in vacuo. See id. at 15-16.

9

The earlier panel stated that,

[u]nless and until [an approved] 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, [Home Builders’] 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 [Clean

Water Act] dredging permit requirements because of

a nexus (or not) with the two Santa Cruz reaches.

Id. at 13. Home Builders’ argument that “the TNW

Determination forecloses the issue of the nearest TNW for

site-specific [JDs] within the watershed” was unconvincing,

because an individual landowner or developer might still

“contest the TNW Determination in a challenge to a site-

specific [JD].” Id. at 14 (internal quotation marks, original

alterations omitted). For example, a landowner faced with a

compliance order, penalty assessment, or permit action

predicated on the site-specific JD could certainly challenge it

in that context. See id.; see also supra n.3. We were

unpersuaded by Home Builders’ assertion that its “members

now face the choice of applying for a permit for activities that

[they asserted] are outside the scope of the agencies’ authority

under the [Clean Water Act] or face significant civil or

criminal enforcement penalties for failing to do so”; those

were “the same statutory and regulatory alternatives . . .

members faced before the TNW Determination.” 667 F.3d at

10

14. With or without a generalized TNW Determination, the

agencies could equally have concluded, in a site-specific JD,

that the designated river reaches were traditional navigable

waters. We noted that, “[w]ithout an additional allegation

that the TNW [Determination] substantially increased the risk

of regulation or enforcement relating to particular property,”

the TNW Determination caused no “concrete and

particularized” and “actual or imminent” injury to any

landowner for purposes of standing. Id.

Further, we recognized that the declarations of Home

Builders’ members did not allege that the TNW

Determination “motivated the landowner to seek an

application for a permit,” nor did they explain how the

declaratory or injunctive relief Home Builders sought “would

remedy the past injuries the members may have already

incurred in applying for the permits.” Id. at 14-15. None of

the declarations alleged facts demonstrating that there was a

“greater likelihood of regulation, if any, after than before the

TNW Determination,” or that “any member plan[ned] in fact

to discharge contaminants into a likely jurisdictional

watercourse anytime soon.” Id. at 15.

B.

In 2013, Home Builders filed this case, raising the same

legal challenges they pressed in Home Builders I, and praying

for essentially the same declaratory relief.5 Home Builders

5

The current complaint no longer seeks a declaration from the

federal courts that the two identified stretches of the Santa Cruz

River are not traditional navigable waters. Home Builders dropped

that prayer for relief presumably out of recognition that, if we were

to declare unlawful and vacate the TNW Determination, it would be

for the agencies in the first instance, not the courts, to make that

11

have again submitted supporting declarations from members,

expanding on those submitted in the earlier case.

One declarant, developer Larry Kreis, states that the

TNW Determination resulted in an “increased risk of

regulation stem[ming] from the fact that [his] properties are

now located within a few miles of the nearest TNW.” Kreis

Decl. ¶ 17. Kreis further states that, absent the TNW

Determination, he “probably would have moved forward with

development of the additional lands without filing an

amended application [in 2012] because the minor, braided

washes on the property would not have a significant nexus to

the Colorado River or other TNW” besides the Santa Cruz.

Id. ¶ 24. Kreis also recounts that, in 2005, the Corps issued

an “Approved Jurisdictional Delineation” concerning one

property; in 2011, he filed an application to discharge into

two washes on that property that had been previously

delineated as jurisdictional waters; and, in 2012, the Corps

issued a permit accordingly. Id. ¶¶ 29-30. Kreis further states

that he is “concerned about having to obtain a permit” for one

of the properties he intends to develop. Id. ¶ 33. Another

declarant, developer Jerry DeGrazia, states that the Corps

issued preliminary JDs for certain of his properties after the

district court’s 2011 dismissal, DeGrazia Decl. ¶¶ 30, 35, and

that the Corps has also issued a permit at one of his former

properties, id. ¶¶ 20, 24-25.

The district court held that Home Builders lacked

standing under the criteria identified in Home Builders I, and

alternatively that Home Builders had failed to identify final

navigability determination (e.g., in a site-specific JD or a

rulemaking).

12

agency action subject to APA review.6 956 F. Supp. 2d 198,

205-12 (D.D.C. 2013).

III.

We review de novo the district court’s dismissal for lack

of standing, accepting as true Home Builders’ non-

conclusory, factual allegations. Mendoza v. Perez, 754 F.3d

1002, 1010 (D.C. Cir. 2014). To establish standing, Home

Builders must show “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.’” Home Builders

I, 667 F.3d at 12 (quoting Summers v. Earth Island Inst., 555

U.S. 488, 493 (2009)); see also Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992). Home Builders must

allege ongoing or imminent injury, rather than purely past

injury, because they seek only declaratory relief. Home

Builders I, 667 F.3d at 12, 14; see also City of Los Angeles v.

Lyons, 461 U.S. 95, 105 (1983).

A.

The doctrine of issue preclusion, or collateral estoppel,

bars “successive litigation of an issue of fact or law actually

litigated and resolved” that was “essential to the prior

judgment, even if the issue recurs in the context of a different

claim.” Taylor v. Sturgell, 553 U.S. 880, 892 & n.5 (2008)

(internal quotation marks omitted); see also Martin v. Dep’t of

6

Under the law of this Circuit, final agency action is not a

jurisdictional requirement, but bears on the existence of an APA

claim. Trudeau v. FTC, 456 F.3d 178, 183-85 (D.C. Cir. 2006).

13

Justice, 488 F.3d 446, 454 (D.C. Cir. 2007). The doctrine

serves to “protect against ‘the expense and vexation attending

multiple lawsuits, conserv[e] judicial resources, and foste[r]

reliance on judicial action by minimizing the possibility of

inconsistent decisions.’” Taylor, 553 U.S. at 892 (brackets in

original) (quoting Montana v. United States, 440 U.S. 147,

153-54 (1979)).

Issue preclusion applies to threshold jurisdictional issues

like standing as well as issues going to a case’s merits. See,

e.g., Underwriters Nat’l Assurance Co. v. N.C. Life & Acc. &

Health Ins. Guar. Ass’n, 455 U.S. 691, 706 (1982); Coll.

Sports Council v. Dep’t of Educ., 465 F.3d 20, 22-23 (D.C.

Cir. 2006); Dozier v. Ford Motor Co., 702 F.2d 1189, 1191

(D.C. Cir. 1983) (Scalia, J.). Issue preclusion operates

differently from claim preclusion with respect to jurisdiction-

based prior decisions: Because a jurisdictional dismissal does

not involve “an adjudication on the merits,” it “will not bar

relitigation of the cause of action originally asserted,” but it

“may preclude . . . relitigation of the precise issues of

jurisdiction adjudicated.” Cutler v. Hayes, 818 F.2d 879, 888

(D.C. Cir. 1987). That is, “[a]lthough the dismissal of a

complaint for lack of jurisdiction does not adjudicate the

merit[s] so as to make the case res judicata on the substance

of the asserted claim, it does adjudicate the court’s

jurisdiction, and a second complaint cannot command a

second consideration of the same jurisdictional claims.” GAF

Corp. v. United States, 818 F.2d 901, 912 & n.72 (D.C. Cir.

1987) (internal quotation marks and citation omitted).

Unless Home Builders satisfy the “curable defect”

exception that they claim shields them from issue preclusion,

they are barred from relitigating here the standing issue

decided in Home Builders I. The curable defect exception

allows relitigation of jurisdictional dismissals when “a

14

‘precondition requisite’ to the court’s proceeding with the

original suit was not alleged or proven, and is supplied in the

second suit.” Dozier, 702 F.2d at 1192. The exception is

sharply limited, however, by the requirement that new

allegations of a sufficient “precondition requisite” identify

“occurrences subsequent to the original dismissal” that

“remed[y]” “the jurisdictional deficiency.” Id. (emphasis in

original); accord GAF Corp., 818 F.2d at 912-13. The

exception permits litigants whose claims were dismissed on

jurisdictional grounds to establish jurisdiction in a subsequent

case only if a material change following dismissal cured the

original jurisdictional deficiency.7 Dozier, 702 F.2d at 1192

& n. 5, 1193 n. 7. That limitation prevents the “curable

defect” exception from undermining the preclusive effect of

issues already fairly and finally determined in prior litigation.

Id. at 1192-94; see also Magnus Elecs., Inc. v. La Republica

Argentina, 830 F.2d 1396, 1400-01 (7th Cir. 1987).

B.

Issue preclusion bars us from reconsidering whether

Home Builders suffered Article III injury, unless they have

alleged that events after the original dismissal cure the

jurisdictional inadequacy identified in Home Builders I.

Plaintiffs failed in Home Builders I to allege at least one of

following types of harm, and thus were unable to establish

constitutionally cognizable injury traceable to the TNW

7

We look to the August 2010 date of the district court’s dismissal

in Home Builders I as the relevant date for purposes of the curable

defect exception. That is consistent with the logic of the

opportunities that procedural rules provide for plaintiffs to amend

complaints prior to dismissal, see Dozier, 702 F.2d at 1192-93 &

n.6, and in any event, it is the date that the Agencies propose and is

more favorable to Home Builders than the 2011 date of this Court’s

affirmance.

15

Determination: (1) application of the TNW Determination to

a particular site in an approved JD or an enforcement action

based on the TNW Determination, 667 F.3d at 13; (2) plans

imminently to discharge into a likely jurisdictional

watercourse, id. at 15; or (3) substantially increased risk of

regulation or enforcement at a specific site in light of the

TNW Determination, id. at 14. None of Home Builders’ new

declarations makes up for any of the prior shortfalls or adds

any new evidence of standing.

For one, Home Builders I required approved JDs for the

requisite injury, id. at 13, yet Home Builders’ new

declarations refer only to preliminary JDs or, in one case, to

an approved JD that preceded the challenged TNW

determination.8 Moreover, Home Builders fail to allege that

any JD applied the TNW Determination. See, e.g., DeGrazia

Decl. ¶¶ 30, 35 (alleging that preliminary JDs identified

“potentially jurisdictional” waters and referenced the Santa

Cruz River, but not that they relied on the TNW

Determination). The TNW Determination was not a predicate

to Kreis’s 2012 permit, either: The washes that necessitated

that permit were delineated as jurisdictional years earlier, in a

2005 approved JD. See Kreis Decl. ¶¶ 29-30. Home Builders

also allege the issuance of a permit (based on a preliminary

JD) at one member’s former property, DeGrazia Decl. ¶¶ 20,

8

When we stated that no Article III injury has occurred “[u]nless

and until such a jurisdictional determination applies the TNW

Determination,” we cited the definition of approved JDs. 667 F.3d

at 13 (emphasis added). Preliminary JDs merely advise that there

“may be” jurisdictional waters on a site. 33 C.F.R. § 331.2. We

also emphasized the “prematur[ity]” of a challenge so long as it

remains the case that “[a]ny watercourse on the[] property may (or

may not) turn out to be subject to [Clean Water Act] . . . permit

requirements because of a nexus (or not) with the two Santa Cruz

reaches.” 667 F.3d at 13.

16

24-25, but because that member no longer owns that property,

the requested declaratory relief could not redress his alleged

injury there, see Home Builders I, 667 F.3d at 12, 14.

Nor have Home Builders shown plans imminently to

discharge into a likely jurisdictional watercourse. Home

Builders’ allegations that “development activities on

[member] property will result in discharges” into washes that

are allegedly tributaries of the Santa Cruz, Kreis. Decl. ¶ 33,

are materially the same as those we previously held to be

insufficiently concrete and imminent, see Home Builders I,

667 F.3d at 15. We found allegations that members

“‘regularly’ undert[ook] construction projects” that could not

“be conducted without impacting [certain water features]

within the Santa Cruz River watershed” were not allegations

of discharges “any time soon,” and thus fell short of

“‘establishing certainly impending dangers.’” Id.

Finally, a principal focus of Home Builders’ renewed

standing case is what they see as increased risk of regulation.

Their complaint is that the TNW Determination makes it

“more difficult to challenge the assertion of CWA jurisdiction

over the washes” on their members’ property. Kreis Decl.

¶ 31.9 Any such harm is not an “occurrence[] subsequent to

the original dismissal,” Dozier, 702 F.2d at 1192 (emphasis

omitted), but had already happened when Home Builders

litigated standing in Home Builders I—indeed, it was the

9

See also Kreis Decl. ¶ 35 (“we have a very small chance of

demonstrating that the washes are not ‘waters of [the] United

States’”); id. ¶ 17 (“Following the [TNW Determination], it became

far more likely that [water features] on our properties will constitute

‘waters of the United States,’” thereby posing an “increased risk of

regulation”); DeGrazia Decl. ¶ 32 (“Absent the [TNW

Determination], I would have been able to demonstrate the lack of

any significant . . . nexus.”).

17

basis of that suit. 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. See, e.g., id. at 1193-94 & n.6;

Magnus Electronics, 830 F.2d at 1400-01; cf. Montana, 440

U.S. at 153-54.

Relatedly, Home Builders contend that “the regulated

community normally has standing to bring facial challenges to

agency rules that regulate their members’ activities,”

Appellant Br. 34, and that their standing in this case “should

be self-evident, given that their members’ land development

activities are regulated by the challenged agency rule,”

Appellant Reply 14. They are correct that regulated entities’

standing to challenge the rules that govern them is “normally

not an issue,” Appellant Br. 30; Appellant Reply 10 (same),

because regulatory constraints typically qualify as injury in

fact, see, e.g., Fund for Animals, Inc. v. Norton, 322 F.3d 728,

733 (D.C. Cir. 2003); Sierra Club v. EPA, 292 F.3d 895, 899-

900 (D.C. Cir. 2002). Such standing is not, however,

automatic, but depends on plaintiffs showing that they satisfy

the doctrinal requirements of Article III. See, e.g., Lujan,

504 U.S. at 561-62, 571-73; CTS Corp. v. EPA, 759 F.3d 52,

57-58 (D.C. Cir. 2014) (recognizing that the “court, as a

matter of constitutional duty, must assure itself of its

jurisdiction to act in every case,” including where a

corporation challenged an EPA listing action that harmed the

firm’s reputation and increased its risk of liability); Nat’l

Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 417

F.3d 1272, 1286-87 (D.C. Cir. 2005) (observing that

organizations representing regulated parties must “satisfy the

‘irreducible constitutional minimum’ of Article III standing”);

CropLife Am. v. EPA, 329 F.3d 876, 884 (D.C. Cir. 2003)

(concluding that binding agency directive caused injury to

18

industry petitioners that was sufficiently concrete and

redressable to satisfy Lujan). In regulated-party cases, as in

other types of challenges, “standing is always a case- and

context-specific inquiry.” CTS, 759 F.3d at 58. For the

reasons already set forth, Home Builders have failed to show

Article III injury in a manner that satisfies the curable defect

exception to issue preclusion.

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.

* * *

Because we affirm for lack of standing, we need not

decide whether the TNW Determination constitutes final

agency action.

It is so ordered.

SILBERMAN, Senior Circuit Judge, concurring, with whom

SENTELLE, Senior Circuit Judge, joins: I agree with the court

that we are precluded by our prior opinion from acknowledging

appellants’ standing. I write separately because I think Home

Builders I1 is incorrectly decided and is quite at odds with our

jurisprudence. To put it bluntly, it sticks out like a sore thumb.

I.

Our prior holding, which binds us, concluded that appellants

did not have standing unless and until their members were a

target of an enforcement action (charging illegal discharge) or

the government (the Corps of Engineers) issued an “approved

jurisdictional determination.” That latter action follows a

request of a property owner for the government’s official

position as to whether its property contains “waters of the

United States” or navigable waters of the United States. In other

words, our prior opinion concluded that appellants lacked

standing to challenge the alleged rule until the government took

official action to assert authority over a member of appellants’

associations. I believe that reasoning conflates the appropriate

standing analysis for an adjudicatory challenge and a challenge

to a rulemaking. The latter asks only whether parties are likely

covered by the regulation or purported regulation not

whether the government has actually started an enforcement

action or officially asserted a right to do so.

Of course, for standing purposes, we must assume the

validity of appellants’ challenge on the merits; i.e., we must

assume that when the EPA issued a “determination” asserting

that more than 50 miles of the Santa Cruz River were designated

as traditional navigable waters, it should have done so through

1

Judge Kavanaugh did not join the court’s core standing

analysis.

2

a traditional rulemaking under section 553 of the APA. This

designation it is undisputed affected the entire watershed of

the Santa Cruz River, roughly 8,600 square miles, which means

that developers were more likely to encounter regulatory

obstacles to development. That is because the agency is bound

to apply the designation in individual jurisdictional

determinations and permitting decisions.

Previously, as Corps staff members observed in emails

urging the EPA to affirm the Corps’ recommendation, the

nearest traditional navigable water to that watershed basin was

likely 300 miles away. Post-Rapanos, the agencies had not

taken the position that land parcels within the watershed were

categorically affected by the presence of a traditional navigable

water (that is, to the extent a parcel containing a water feature

has a significant nexus to the Santa Cruz River). To reiterate, in

asking whether appellants have standing, the question is exactly

the same as asking whether they would have had standing to

challenge this legal position if it were embodied in an APA rule.

And the law is rather clear; any party covered by an

agency’s regulatory action has standing to challenge a rule when

it issues it certainly need not wait until a government agency

seeks to enforce a rule. See Chamber of Commerce v. Fed.

Election Comm’n, 69 F.3d 600, 604 (D.C. Cir. 1995). That

proposition is so clearly established it is beyond question. Nor

do parties have to wait until the government takes preliminary

steps before enforcing clearing its throat, so to speak. It is

only necessary for a potential litigant to show that it is part of

the regulated class and its behavior is likely affected by the

government’s action.

3

It seems to me that any property owner in the Santa Cruz

watershed who contemplated development and therefore would

need a permit from the Corps if its property had a significant

nexus to the river, is covered by the regulation. As the court

points out, a significant nexus is much more than an abutment

to or direct tributary of the river; it can include desert washes,

arroyos or any other particular drainage feature that exists in

response to local precipitation. Although it is not determinative,

by virtue of the regulation, that a particular landowner is

affected by the rule, it is fair to assume that a local developer

would potentially fall into that category. See JEM Broad. Co. v.

FCC, 22 F.3d 320, 326 (D.C. Cir. 1994) (holding that any

person or entity within the class affected by the FCC’s “hard

look” rules, that is, actual or potential license applicants, had

standing to challenge the rules as illegally promulgated).

Essentially that was the position of appellants representing

developers in our primary case.

I think that would have sufficed for standing under our

cases. See Nat’l Ass’n of Home Builders v. U.S. Army Corps of

Eng’rs, 417 F.3d 1272, 1286-87 (D.C. Cir. 2005) (“[I]t is fairly

‘self-evident’ that the various appellants as representatives of

the regulated parties . . . [have] Article III standing”); Sierra

Club v. EPA, 292 F.3d 895, 899-900 (D.C. Cir. 2002) (if a

petitioner is an object of the agency action or is directly affected

by it as is the case usually in a rulemaking there should be

little question that it has standing); Fund for Animals, Inc. v.

Norton, 322 F.3d 728, 733-34 (D.C. Cir. 2003) (standing can be

self-evident when the challenged rule directly regulates the

disposition of a petitioner’s property); Sabre, Inc. v. Dep’t of

Transp., 429 F.3d 1113, 1119 (D.C. Cir. 2005) (previously

unregulated independent computer reservation system operator

had standing to challenge an FAA regulation that subjected it to

4

the Department’s regulatory authority); Shays v. Fed. Election

Comm’n, 414 F.3d 76, 93 (D.C. Cir. 2005) (congressmen had

standing to launch a conventional administrative law claim, i.e.,

a facial challenge to allegedly invalid regulations affecting their

interests); Am. Trucking Ass’n., Inc. v. Fed. Motor Carrier

Safety Admin., 724 F.3d 243, 247 (D.C. Cir. 2013) (an

association created to promote and protect the interests of the

trucking industry had representational standing because it had an

obvious interest in challenging a rule that directly and negatively

impacts its members); Nat’l Min. Ass’n. v. U.S. Army Corps of

Eng’rs, 145 F.3d 1399, 1401 (D.C. Cir. 1998) (omitting mention

of standing (surely because it was so obvious), allowing trade

association whose members engage in dredging and excavation

to mount a facial challenge to the Corps’ amendment of a

regulation defining section 404’s term “discharge of dredged

material”).

In the case before us our second case we have even

more. We have affidavits of developers who had obtained

“preliminary jurisdictional determinations.” Under the

government’s regulations, a party can hire a consultant to

examine its property and prepare a report determining whether

it has “waters of the United States” on its property, and therefore

must obtain a permit to proceed with development. (After the

EPA issued the determination any amount of water on a

particular property has different legal significance). The

consultant report is submitted to the Corps and qualifies as a

“preliminary jurisdictional determination” upon the Corps’

adoption of it, oftentimes with edits. There can be no doubt that

such affidavits show standing under any interpretation of our

prior cases or for that matter, I suspect any other court’s cases.

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63 (1992)

5

(an affidavit that a person was planning to visit a particular

location would be sufficient to show Article III injury).

Because the opinion we are obliged to follow is so much out

of step with our case law it should not have continuing

jurisprudential significance. 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?).