PHOENIX — Homebuilders have lost another bid to stop federal agencies from designating two stretches of the Santa Cruz River as “navigable.”
In a 21-page ruling, U.S. District Court Judge Ellen Huvelle never addressed the question of whether the parts of the river in question fit the legal definition. Instead, she ruled that the National Association of Home Builders had no legal standing to challenge the decision by the Army Corps of Engineers and the Environmental Protection Agency.
The same is true, the judge said, for the Southern Arizona Home Builders Association and the Home Builders Association of Central Arizona.
Huvelle said affected property owners would have the right to challenge the designation.
But the judge said developers who were part of the lawsuit the government failed to show they actually had been harmed by the federal action. And that, she said, gave them no more right to sue than the associations.
The issue is more than academic.
Once a stream is determined to be navigable, it falls within the scope of the federal Clean Water Act. That law imposes restrictions on any discharges into water that eventually winds up in those streams, covering everything from pollutants to rocks and sand.
SAHBA President David Godlewski said this isn't just an issue for those who own land near the river.
He said much of the developable land in Southern Arizona is near one or more washes — washes that eventually wind up draining into the Santa Cruz River. And that, he said, makes those developers also subject to the additional restrictions.
Godlewski said he wants to confer with attorneys before deciding whether to appeal. But he said that it should not be necessary for a developer to face imminent harm — or actually have been affected — before the designation can be challenged.
“People are limited in the development of their property because of the determination,” he said.
The fight specifically surrounds two areas of the river designated 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.
Attorneys for the homebuilders said the EPA designation is flawed.
“It is unsupported by credible evidence demonstrating that the Santa Cruz River is currently, or ever was, susceptible to use as a highway for water-borne interstate commerce,” the lawsuit claims. Attorneys said neither stretch has no water for much of the year, with its “base flow” consisting of treated sewage.
A similar lawsuit by the homebuilders was previously thrown out of court due to lack of standing. This time, in a bid to sidestep that problem, the organization included declaration of three property owners who said they were personally affected.
Huvelle was unimpressed.
She said none of them was able to show that they had been the subject of an enforcement action for discharging water without a permit into a navigable stream. And Huvelle said there also was no claim that they have been denied a permit, or even got a permit but with "undesirable conditions'' attached.
“Thus, there is no suggestion that the agencies have taken any adverse action against the National Association of Home Builders or its members based on the (navigable waters) determination,” the judge wrote. In fact, she said, the only conditions imposed on any by the Corps of Engineers actually predate the designation.
For example, she said Larry Kreis, general manager of Red Point Development, obtained his permit for the Cascada Project along Interstate 10 several months before the navigability determination.
Kreis said that he decided to expand the project last year and filed for an amended permit based on the development's proximity to the river. And in his declaration, Kreis asserted he would have moved forward with the development without filing an amended application had there not been that navigability designation.
But Huvelle said that is irrelevant.
“That application is still pending, and Kreis does not claim that the agencies have taken any actions with respect to the Cascada property” based on the river's designation.
Similarly, Huvelle rebuffed Kreis' contention that his Sterling Meadows Project near Linda Vista Boulevard and Hartman Road was designed to avoid washes but that he has "concerns that there may be additional jurisdictional washes and drainage features on the property.''
“These 'concerns' are entirely speculative” the judge wrote, and do not give him standing to sue.