Thursday, April 30, 2009

White Tanks Concerned Citizens v. Strock (Corps of Engineers)

Apr 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-15659. According to the Appeals Court explanation, this environmental dispute is between developers who dream of building thousands of homes in the now relatively undisturbed desert near the White Tank Mountains west of Phoenix, Arizona, and a non-profit organization formed essentially to oppose such developments. The focus of the dispute is the adequacy of the study that went into the decision by the Army Corps of Engineers (Corps) to grant a permit under the Clean Water Act (CWA) so that the developers could fill several "ephemeral washes" that run through the project area.

The Appeals Court said, "The scope of the Corps’ jurisdiction under the Clean Water Act is not entirely clear after the Supreme Court’s four-four-one decision in Rapanos v. United States, 547 U.S. 715 (2006), but there has never been any direct challenge to the exercise of jurisdiction before the Corps in this case, and the existence of the Corps’ jurisdiction is not disputed before this court."

Rather, the Appeals Court said, the dispute is over which of the Ninth Circuit's prior decisions should control. In summary, the case focuses on the question of whether it is factually more similar to the Ninth Circuit's decision in Save Our Sonoran v. Flowers, 408 F.3d 1113 (9th Cir. 2005) (SOS), or the Ninth Circuit's decision in Wetlands Action Network v. U.S. Army Corps of Engineers, 222 F.3d 1105 (9th Cir. 2000) (Wetlands).

In SOS, the Ninth Circuit held that before the Corps could grant a permit to fill washes similar in nature to those at issue in the appeal, the Corps must consider the entire scope of that development, because the pattern of washes in the area made any development avoiding the washes impossible. In Wetlands, the Ninth Circuit considered a project that required filling natural saltwater wetlands, but in mitigation created a larger freshwater wetland. The Appeals Court held that the Corps properly confined its environmental review to the wetlands and was not required to study the environmental effects on the upland area, principally because the development of the upland area could proceed independent of the wetlands project.

According to the Appeals Court, the district court in the current case, delivered "a thoughtful opinion," concluding that it should follow Wetlands because it agreed with the analysis of the Corps in the district court that the bulk of the project could be developed independently, without affecting the area traversed by the washes.

The Appeals Court concludes, "Upon a close review of the district court and administrative records, including the permit application itself and concerns that the U.S. EPA and the Fish and Wildlife Service (FWS) raised before the Corps, we conclude that the washes here were, in most material respects, more like the washes in SOS than those in Wetlands. These washes were dispersed throughout the project area in such a way that, as a practical matter, no large-scale development could take place without filling the washes. We therefore hold that the Corps’ Finding of No Significant Impact (FONSI) was made on the basis of too narrow a scope of analysis, and we reverse the district court." Further, the case is remanded "for entry of an appropriate injunction against the issuance of a Section 404 permit until the Corps performs the requisite environmental analysis in accordance with this opinion."

Access the compete opinion (
click here).