U.S. District Court for the District of Arizona, Judge Raner C. Collins
Lower San Pedro Watershed Alliance v. Barta is an ongoing case involving a Clean Water Act (CWA) permit issued by the U.S. Army Corps (the Corps) for a proposed housing development in the San Pedro River Basin near Benson, AZ. The CWA permit would allow the developer to fill in the washes that run off the San Pedro on the project site. However, these washes are a vital component of the San Pedro’s “ecological and hydrological functions” (Barta, 2019, p. 26). The development, named the Villages at Vigneto (the Villages), would contain 28,000 homes with commercial zoning for resorts, golf courses, and other amenities
(Earthjustice, 2016a). The development is projected to increase Benson’s population “from 5,000 to as many as 75,000” people and to “increase demand on groundwater resources from
approximately 800 to as high as 13,000 acre-feet per year” (Earthjustice, 2016b). Due to its enormity, the Villages development would result in numerous impacts for the San Pedro’s listed species due to the development’s far-reaching impacts on the watershed. Primarily, the
development would add to the current groundwater overdraft and significantly reduce surface water baseflow for listed species due to the project’s large groundwater demand, which would
also degrade the critical habitat along the San Pedro for the listed species (Earthjustice, 2016a).
Additionally, the development would disrupt “numerous conservation easements” downstream from the development site that help protect endangered and threatened species (Earthjustice, 2016a). Furthermore, allowing the developer to fill in these washes would result in greater surface water runoff and erosion that would impact listed species (Barta, 2019). Despite these drastic effects, and after a long legal and political history beginning in 2006, the CWA permit was issued by the Corps to the developer without full consultation under NEPA and the ESA.
This CWA permit was originally issued by the Army Corps back in 2006 for a smaller housing development on the Villages’ proposed site, but the previous owner never proceeded with the project because they never received approval for the development from the City of Benson (Shogren, 2017; Barta, 2019). When the current developer, El Dorado Holdings, Inc, bought the property in 2014 for the Villages project, the 2006 permit was transferred to El Dorado, giving them approval to fill in 51 acres of washes on the project site (Shogren, 2017).
However, the Villages project is 50% larger than the one that the CWA permit was originally approved for, and since the permit was issued in 2006 “new information has surfaced on the impacts to endangered and threatened species” that could be exacerbated by the proposed
development (Earthjustice, 2016a). Yet, despite this information, the Corps still initially deemed the 2006 permit valid and applicable to the Villages development in 2014 when El Dorado Holdings bought the land.
However, in 2016, environmental groups filed a lawsuit against the Army Corps and the FWS for failing to undergo formal consultation required by Section 7 of the ESA (Earthjustice, 2016b). Soon after this filing, the Corps suspended the 2006 permit to reevaluate the impacts of the development and begin consultation with the FWS (Barta, 2019). During informal
consultation, the Corps requested concurrence from the FWS with their finding that “the development’s mitigation plan likely wouldn’t jeopardize the federally listed species” (James, 2019). However, the FWS did not concur with the Corps and instead found that the development would have effects on listed species that were ‘reasonably certain to occur’ due to the
development’s consumption of groundwater (James, 2019). The FWS then notified the Corps that they couldn’t start formal consultation “without a full biological assessment” of the development including its “direct and indirect effects” (James, 2019). Nearly a year later, in 2017, without the issuance of a Biological Assessment and without formal consultation, the FWS abruptly reversed its decision on the impacts of the development and issued a concurrence with the Corps’ findings (James, 2019). Despite the FWS’s new concurrence, the EPA wrote to the Corps in December 2017 urging them to complete a more comprehensive evaluation of the project site, including all 12,000+ acres, rather than just the acreage where the washes would be filled that they evaluated in their informal consultation process with the FWS (Davis, 2018).
Still, in spite of these efforts, the Corps reissued the CWA permit for the Villages development in October 2018 based on an evaluation of only 1,919 acres of the whole project site (Bregel, 2019; Barta, 2019).
After the Corps reissued the permit in late 2018, the present case was filed in January 2019 initially citing NEPA and CWA violations, but was amended in August 2019 to include violations of the Army and the FWS under the ESA (Barta, 2019). After the plaintiffs in this case originally filed their complaint in January 2019, the Army Corps quickly suspended the CWA permit yet again less than a month later to “clarify and correct its analysis in the 2018”
assessment of the development’s impacts (Barta, 2019, p. 29). However, in July 2019, without expanding “its scope of analysis” or consulting with the FWS regarding the Villages’ impact on
the listed species and their critical habitat, the Corps reissued the CWA permit for the
development once again (Barta, 2019, p. 29). This reissuance leads to the current amended claim filed in August 2019 by the plaintiffs after the Corps reissued the permit in July 2019. The plaintiffs in this case are the Lower San Pedro Watershed Alliance, the Sierra Club, the Center for Biological Diversity, the Maricopa Audubon Society, the Tucson Audubon Society, and the Cascabel Conservation Association (Barta, 2019).
The majority of the issues in this case’s complaint involve NEPA and the CWA. The plaintiffs argued in their complaint that the Corps was in violation of NEPA by awarding the CWA permit to the Villages development with only a narrow analysis of the environmental impacts (Barta, 2019, p. 68). They also alleged that the plaintiffs did not complete an EIS, which is an imperative aspect of NEPA for federal actions such as the Corps’ issuance of the permit (Barta, 2019). Furthermore, the plaintiffs argued that the defendants did not fully evaluate the impacts of the development in their Environmental Assessment, which was influential in their decision to not complete an EIS under NEPA (Barta, 2019). Under the CWA, the plaintiffs found that the law requires the Corps to act in the public interest, which the plaintiffs claim they did not do in their evaluation of the Villages development (Barta, 2019). The plaintiffs also challenged the Corps’ refusal to find a “No Action Alternative” as the “least environmentally damaging” alternative option to the Village’s plan to fill the washes (Barta, 2019, p. 73).
Choosing the “least environmentally damaging practicable alternative” is a requirement for agencies under the CWA (Barta, 2019, p. 72). Finally, the plaintiffs found that the Corps did not implement mitigation measures required by the CWA before issuing the permit (Barta, 2019).
Overall, because of these alleged violations, the plaintiffs asked the court to find the Corps’
CWA permit as arbitrary and capricious, an “abuse of discretion,” and in violation of NEPA and the APA (Barta, 2019, p. 76).
The plaintiffs in this case also argued that the Corps had a duty to consult with the FWS under Section 7 of the ESA. They argued that this was required because the issuance of the Corps’ CWA permit would result in “adverse effects of the proposed development on listed species” (Barta, 2019, p. 4). These species include “the jaguar, western yellow-billed cuckoo, southwestern willow flycatcher, northern Mexican garter snake, and Huachuca water umbel” and their critical habitat (Barta, 2019, p. 4). The plaintiffs further argued that the Corps’ permit failed to fully evaluate the impact of the development on the environment since the Corps only
evaluated the development’s impact on 1,919 acres of the whole 12,167 acre planned project site (Barta, 2019). Additionally, the complaint alleges that the Corps’ limited analysis of the project site was the result of “improper political interference” involving the FWS’s 2017 reversal of its original no concurrence opinion (Barta, 2019, p. 6). Due to these issues, the plaintiffs claimed that the Army and the FWS violated Section 7 of the ESA due to the Corps’ narrow land-area review and for overlooking studies with the “best available science” showing the development’s adverse impact on listed species (Barta, 2019, p. 78). Thus, the plaintiffs asked the court to find the Corps’ failure to address these issues, their reinstatement of the CWA permit for the Villages, and the FWS’s revised concurrence as “arbitrary, capricious, an abuse of discretion, and not in accordance with the ESA” (Barta, 2019, p. 78). This case is currently ongoing in court, with the most recent motions being filed in late January 2020 (Free Law Project, 2020).
E. Center for Biological Diversity v. Bernhardt (2020)