Envtl. Assessments & Impact Statements
CWA jurisdictional issues related to a 404 permit need to be raised in the administrative process to be reviewable by the courts
Buckeye, Arizona, planned to expand; toward that end, several developments were to move forward. One of the projects involved 10,105 acres traversed by approximately 787 acres of washes. 643 acres of these washes are part of the Hassayampa River floodplain and would not be disturbed by the development. The remaining 144 acres of washes are dispersed throughout the development site, and the projected development would fill 26.8 of those acres. Because of the need for a Section 404 permit, NEPA required the Corps to investigate whether the dredging and filling would “significantly affect[ ] the quality of the human environment.” 42 U.S.C. § 4332(2)(C).
The Corps issued a public notice in October 2003, and received a number of negative comments. Of particular concern to the commenters was the Corps’ decision to restrict its scope of its environmental analysis to the washes themselves and certain upland areas directly affected by the dredge and fill activity. Both EPA and FWS urged the Corps to conduct a full-scale environmental analysis, including an Environmental Impact Statement (“EIS”) addressing the large-scale direct, secondary, and cumulative impacts of the project. EPA was also concerned about the potential impacts on the aquatic resources of the area. EPA even indicated that the Corps should conduct a comprehensive EIS covering not only the impacts of Festival Ranch, but also the impacts of many of the other large-scale developments in the Buckeye area, which would together “transform . . . Buckeye from a relatively undeveloped landscape into a large suburban community.” Despite these and other negative comments, the Corps issued a FONSI.
In White Tanks etc. v. Strock et al, Docket No. 07-15659 (9th Cir.: 4/29/09), the Ninth Circuit addressed the issue. Both in the District Court and before the 9th Circuit, no party contested CWA jurisdiction; the developer did try to so do, but was held to not have raised the issue administratively before the Corps, and as such had not timely put the issue in play. The Court also found that the plaintiffs had standing; they used the desert area that would be developed, and the organization had members who would no longer be able to use the desert area for recreational activities.
The District Court and Corps took a narrow view of the EIS process, and noted that few washes would be filled. Yet, as the Court of Appeals noted, this was contradicted by the very nature of the permit sought, which envisioned one large integrated community, not a series of “pods”. Even in the permit application the developer noted that the FONSI option was not feasible because of the desire to create one integrated planned community. The judgment of the District Court was reversed, and the 404 permit was not to be issued until the Corps did an adequate and comprehensive EIS.
As noted in prior posts, it is critically important to raise all relevant issues (in this case, whether there was CWA jurisdiction) in the administrative proceedings so that the issue is preserved for later review by the courts.