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

ELR Citation: 45 ELR 20093
Nos. 13-5290, (D.C. Cir., 05/15/2015)

The D.C. Circuit held that a home builders' association lacked standing to challenge EPA's and the U.S. Army Corps of Engineers' determination that two reaches of the Santa Cruz River in southern Arizona constitute "traditional navigable waters" (TNW) under the CWA. The court previously held in a similar case that the association failed to demonstrate an injury in fact traceable to the TNW determination to establish standing—either in its own right or on behalf of its members. Because the case is materially unchanged, the court held that it was barred by the doctrine of collateral estoppel. The association argued that the "curable defect" exception shields them from issue preclusion. But the court disagreed. Although the association submitted new declarations from members adding factual detail to their assertions of injury, none of the new declarations makes up for any of the prior shortfalls or adds any new evidence of standing.