NAHB v. EPA, Army Corps of Engineers (Traditional Navigable Water)


U.S. Court of Appeals for the District of Columbia Circuit

NAHB Involvement


Under the Supreme Court's current case law, a water body falls under the EPA's Clean Water Act jurisdiction if it has a "significant nexus" or continually flows to a "traditionally navigable water.(TNW)" The EPA determined that the Santa Cruz River is a TNW even though the water that flows in it comes from a sewage treatment plant and there is no history of people using the "river" for commerce. The EPA made its decision without allowing the public to comment on its decision. The EPA and Corps are making similar decisions around the country so they can assert jurisdiction over a greater number of water bodies.

In January 2013, after lining up members to sign declarations that prove the EPA has injured NAHB members, NAHB filed its second complaint against this action.

The government filed a Motion to Dismiss claiming

  • The doctrine of issue preclusion bars NAHB's claim,
  • Article III standing has not been established,
  • The challenged TNW determination is not final agency action, and 
  • NAHB's claim is not ripe for review.

NAHB's Response was filed on April 26, 2013.

On July 26, 2013, the D.C. Circuit Court once again found that NAHB had failed to establish standing because its member declarations did not adequately allege an injury-in-fact fairly traceable to EPA's TNW Determination. The court further claimed that "even if NAHB could show that it has standing to challenge the TNW Determination, the Court would still reject NAHB's claims because the Determination is not a final agency action" subject to review under the Administrative Procedure Act.

Determined to prove that the Court is wrong, NAHB filed a Notice of Appeal on Sept. 9, 2013. NAHB's opening brief was submitted on March 10, 2014. A reply brief followed on May 28, 2014. Oral argument was held on Nov. 24, 2014.

In June 2015, the D.C. Circuit ruled that NAHB was barred from bringing its case to court based on “issue preclusion.” Two of the judges, however, found that NAHB had standing in its first case, and have standing now, but are still precluded. In July 2015, NAHB filed a motion for rehearing. We are waiting for a decision on that motion.