PHOENIX -- A federal appeals court has slapped down efforts by home builders to overturn a decision that two stretches of the Santa Cruz River are legally "navigable."
In a unanimous ruling, the three-judge panel of the Court of Appeals for the District of Columbia district sidestepped the question of whether the Environmental Protection Agency made a proper legal determination. Instead, they concluded that the National Association of Home Builders and its two Arizona affiliates lack legal standing to challenge EPA's action.
Judge Karen Henderson said it would be one thing if the lawsuit had been brought by a specific landowner who had to jump through additional regulatory hoops on a project because of the designation. But at this point, she said, that does not exist.
David Godlewski, president of the Southern Arizona Home Builders Association, said his organization is looking at what to do now.
"We obviously didn't lose on the merits," he said. Godlewski said a new lawsuit may be filed, one designed to get around the problems the appellate court found.
The fight surrounds two areas of the Santa Cruz designated by the EPA as navigable.
One involves a 20-mile stretch running from Tubac to Continental. The other starts at Pima County's Roger Road sewage treatment plant and runs north to the Pinal County line.
The designation is legally important because once a stream is determined "navigable," it falls within the scope of the federal Clean Water Act. And that law imposes restrictions on any discharges into water that eventually winds up in those streams, covering everything from pollutants to rocks and sand.
In their lawsuit, the three home builder groups said the designation defies logic.
Attorneys for the associations say that the river has never been a continuous stream, "normally flowing only in response to significant precipitation and discharges of sewage effluent." They said the ordinary flow is insufficient for the river to be used for commerce by boat.
"At best (the two reaches) are cable of supporting a canoe during exceptional periods of high water," the lawsuit states. And even those flows, the lawyers said, are of "extremely limited duration."
And they said the flow further north is essentially all sewage, with no "natural flow" for most of the year.
They also pointed out that the state's own Navigable Stream Adjudication Commission has concluded the Santa Cruz does not fit the definition. That commission, however, is looking at the issue solely to determine land ownership issues, as property within navigable streams belongs to the state.
In the ruling, Henderson said the U.S. Supreme Court has not reached any consensus on exactly what constitutes a navigable steam. But she said her court did not need to decide that because the home builder groups have no right to bring the challenge.
"To establish organizational standing, National Association of Home Builders must allege such a personal state in the outcome of the controversy as to warrant the invocation of federal court jurisdiction," she wrote.
"It must demonstrate that it has suffered injury in fact," Henderson continued. That must show a "concrete and demonstrable injury" to the group's activities along with a drain on its resources, "more than simply a setback to the organization's abstract social interests."
She said that has not happened here.
Henderson said it is irrelevant that the home builders have spent money on legal fees over the scope of the reach of the Clean Water Act as well as testifying before Congress and submitting comments to agencies. She said there is nothing showing those expenses are beyond what the organization would normally spend in its advocacy role.
And Henderson said the organizations have no legal right to sue on behalf of its members. She said until there has been some determination that the restrictions apply to a specific property, or that a landowner is charged with discharging without a permit, no one has been injured.
"In the meantime, National Association of Home Builders members face only the possibility of regulation," Henderson wrote.
And she said that was a possibility that existed even before the action of the EPA, it was always understood that stretches of the Santa Cruz could be designated as navigable.