KAREN LeCRAFT HENDERSON, Circuit Judge:
The National Association of Home Builders and its member organizations, Southern Arizona Home Builders Association and Home Builders Association of Central Arizona, appeal the dismissal of their lawsuit challenging the determination (Determination) by the United States Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) (collectively, Agencies) that two reaches of the Santa Cruz River in southern Arizona constitute "traditional navigable water[s]" (TNW)
The CWA provides that "the discharge of any pollutant by any person"—i.e., "any addition of any pollutant to navigable waters from any point source"—"shall be unlawful" unless it complies with one of several enumerated CWA provisions, including sections 402 and 404. 33 U.S.C. §§ 1311(a), 1362(12).
On May 23, 2008, the Corps issued a memorandum reciting that the two "[Santa Cruz] Reaches are navigable-in-fact, and thus a TNW, susceptible to use in interstate commerce associated with recreational navigation activities" and, accordingly, they "are subject to the jurisdiction of Section 404 of the CWA." May 23, 2008 Memorandum for the Record of Col. Thomas H. Magness, Dist. Dir., U.S. Army, at 5-6 (Compl.ex. 2). On December 3, 2008, the EPA issued a letter setting out its own "determination to affirm the [Corps's] designation of the two reaches as TNWs." Dec. 3, 2008 Letter to John Paul Woodley, Jr., Asst. Sec'y of the Army (Civil
NAHB filed this action in March 2009, challenging the TNW Determination insofar as it "has the effect of expanding the agencies' jurisdiction over dry desert washes, arroyos and other water features within the Santa Cruz River watershed under the Clean Water Act." Compl. ¶ 2. The complaint sets out two claims, asserted both on NAHB's own behalf and in its representational capacity on behalf of individual members. Count 1 challenges the TNW Determination as violative of the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., because the Agencies provided no notice or opportunity to be heard before issuing the TNW Determination. Count 2 challenges the substance of the TNW Determination as unlawful. The complaint seeks declaratory and injunctive relief, requesting that the district court (1) declare the TNW Determination to be invalid and (2) "set aside the TNW Determination... and enjoin the Corps and EPA from relying on the TNW Determinations in any future jurisdictional determinations in the Santa Cruz River watershed." Compl. 19-20.
On August 18, 2010, the district court granted the Agencies' motion to dismiss for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1) on the ground the CWA precludes pre-enforcement judicial review of a TNW Determination. See Nat'l Ass'n of Home Builders v. U.S. EPA, 731 F.Supp.2d 50 (D.D.C.2010). In light of its disposition, the court declined to reach the Agencies' alternative grounds for dismissal, including NAHB's lack of Article III standing. NAHB filed a timely notice of appeal.
"Because Article III limits the constitutional role of the federal judiciary to resolving cases and controversies, a showing of standing `is an essential and unchanging' predicate to any exercise of our jurisdiction." Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996) (en banc) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citation omitted)). "The `irreducible constitutional minimum of standing contains three elements': (1) injury-in-fact, (2) causation, and (3) redressability." Ass'n of Flight Attendants-CWA v. U.S. Dep't of Transp., 564 F.3d 462, 464 (D.C.Cir.2009) (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (quotation marks omitted)). "Thus, to establish standing, a litigant must demonstrate a `personal injury fairly traceable to the [opposing party's] allegedly unlawful conduct and likely to be redressed by the requested relief.'" Id. (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (alteration in Allen)). We conclude that NAHB has not demonstrated an injury in fact traceable to the TNW Determination to establish standing— either in its own right or on behalf of its members.
A. Organizational Standing
To establish organizational standing, NAHB must "allege such a `personal stake' in the outcome of the controversy as to warrant the invocation of federal-court jurisdiction"; that is, it must demonstrate that it has "`suffered injury in fact,' including `[s]uch concrete and demonstrable injury to the organization's activities—with [a] consequent drain on the organization's resources—constitut[ing] ... more than simply a setback to the organization's abstract social interests.'" Nat'l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C.Cir.1995) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)). This NAHB has not done.
B. Representational Standing
NAHB also claims representational standing on behalf of its members. To establish representational standing, an association must demonstrate that "`(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.'" Ass'n of Flight Attendants-CWA, 564 F.3d at 464 (quoting United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996) (quotation marks omitted)). To obtain injunctive relief in particular, as NAHB seeks to do, it must show under the first prong of the test 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." Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (quoting Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). While the burden of production to establish standing is more relaxed at the pleading stage than at summary judgment, a plaintiff must nonetheless allege "`general factual allegations of injury resulting from the defendant's conduct'" (notwithstanding "the court `presum[es] that general allegations embrace the specific facts that are necessary to support the claim'"). Sierra Club v. EPA, 292 F.3d 895, 898-99 (D.C.Cir.2002) (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (alteration in Sierra
The complaint alleges that "[m]any of [NAHB's] members have or will attempt to obtain permits under Section 404 that authorize discharges of fill materials into waters within the federal CWA jurisdiction in connection with their projects" and "have an interest in the manner in which such regulation takes place, including the types of watercourses that are subject to the agencies' regulatory jurisdiction." Compl. ¶ 30. NAHB does not explain, however, how the TNW Determination adversely affects either the "manner" of regulation or, with any specificity, the "types of watercourses" subject to regulation. NAHB does not here contest "whether the Santa Cruz River itself may be subject to Clean Water Act jurisdiction—an issue that is not raised in this action." Compl. ¶ 2. Yet this is the only issue the TNW Determination in fact resolved. See Compl. exs. 1, 2. It did not determine whether any particular "watercourse" other than the two reaches of the Santa Cruz River itself ("dry desert washes, arroyos and other water features," Compl. ¶ 2) is jurisdictional and therefore subject to the CWA's permit requirements. The Agencies decide through an individual site-specific "jurisdictional determination" whether a particular watercourse in the Santa Cruz River watershed is within their CWA jurisdiction, using the jointly developed "Rapanos Guidance" document
Citing no authority, NAHB argues that the TNW Determination "foreclos[es] the issue of the nearest TNW for site-specific [jurisdictional determinations] within the watershed." Appellants' Br. 59. We see no reason, however, that an individual landowner or developer may not contest the TNW Determination in a challenge to a site-specific jurisdictional designation under the judicial review provisions of the CWA and implementing regulations. See 33 U.S.C. § 1319(b) and 33 C.F.R. § 326.5 (providing for judicial actions by Agencies to enforce compliance or cease-and-desist order or to obtain penalties); 33 U.S.C. § 1319(g) and 33 C.F.R. § 326.6 (providing for judicial review of penalties); see, e.g., Rapanos v. United States, supra (reviewing Corps jurisdictional determinations in proceeding arising from both enforcement actions against developers and appeal of property owner's permit denial). Nor are we swayed by NAHB's assertion that its members now face "the choice of applying for a permit for activities that are outside the scope of the agencies' authority under the CWA or face significant civil or criminal enforcement penalties for failing to do so." Appellants' Br. 59. These are the same statutory and regulatory alternatives NAHB members faced before the TNW Determination. See 33 U.S.C. § 1319; 33 C.F.R. § 326.1-326.6. Without an additional allegation that the TNW substantially increased the risk of regulation or enforcement relating to particular property, we have no basis to conclude the TNW caused a "concrete and particularized" and "actual or imminent" threat to any landowner, let alone any particular NAHB member. Lujan, 504 U.S. at 561, 112 S.Ct. 2130.
NAHB also cites supporting declarations to establish its members' standing. One declarant recites he is "personally aware of NAHB members that recently applied for and received authorization to discharge stormwater under CWA Section 402 in connection with construction activities on lands within the Santa Cruz River watershed and where the receiving water was identified as the Santa Cruz River." Ward Decl. ¶ 9. But the declarant fails to explain whether the TNW Determination motivated the landowner to seek an application for a permit or how the relief NAHB seeks— declaratory and injunctive relief—would remedy the past injuries the members may have already incurred in applying for the permits. See City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (plaintiff's "standing to seek the injunction requested depended on whether he was likely to suffer future injury"; allegation of past injury "does nothing to establish a real and immediate threat" justifying injunctive relief) (emphasis added). Another declarant claims "personal knowledge of at least one [member] that owns land within the Santa Cruz River watershed and is applying for a Clean Water Act permit in connection with development activities on its land"; she does not explain, however, why the member's
C. Procedural Standing
Finally, NAHB claims that even if it has not established a substantive injury to support its standing, it nonetheless has "procedural" standing to challenge the Agencies' failure to provide notice and an opportunity to submit comments pursuant to the APA. See 5 U.S.C. § 553(b), (c). This argument fails as well and for the same reason—no imminent injury in fact has been alleged.
In Summers v. Earth Island Institute, the Supreme Court made clear that "deprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing." 555 U.S. at 496, 129 S.Ct. 1142. Yet this is precisely what NAHB claims here—a right in a void. That the Congress has accorded a procedural right "can loosen the strictures of the redressability prong of our standing inquiry"—so that standing may exist even if the right to comment likely would not have succeeded in persuading the agency to change its mind. Id. at 497, 129 S.Ct. 1142. "Unlike redressability, however, the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute." Id. Without an imminent threat of injury traceable to the challenged action, that floor stands as a ceiling. See United Transp. Union v. ICC, 891 F.2d 908, 918 (D.C.Cir.1989) ("[B]efore we find standing in procedural injury cases, we must ensure that there is some connection between the alleged procedural injury and a substantive injury that would otherwise confer Article III standing. Without such a nexus, the procedural injury
For the foregoing reasons, we affirm the district court's dismissal of NAHB's complaint for lack of jurisdiction on the alternative ground that it lacks Article III standing to challenge the Agencies' TNW Determination.