White Tanks Concerned Citizens, Inc. v. Strock

• Decision Date: 29 April 2009
• Docket Number: No. 07-15659.,07-15659.
• Citation: 563 F.3d 1033
• Parties: WHITE TANKS CONCERNED CITIZENS, INC., Plaintiff-Appellant, v. Carl A. STROCK, Lt. Gen. in his official capacity as Commander; United States Army Corps of Engineers; David J. Castanon, in his official capacity as Chief of the Regulatory Branch of the United States Army Corps of Engineers Los Angeles District, Defendants-Appellees, 10,000 West, LLC; Pulte Home Corporation, Amicus Curiae.
• Court: U.S. Court of Appeals — Ninth Circuit

563 F.3d 1033

WHITE TANKS CONCERNED CITIZENS, INC., Plaintiff-Appellant, v. Carl A. STROCK, Lt. Gen. in his official capacity as Commander; United States Army Corps of Engineers; David J. Castanon, in his official capacity as Chief of the Regulatory Branch of the United States Army Corps of Engineers Los Angeles District, Defendants-Appellees 10,000 West, LLC; Pulte Home Corporation, Amicus Curiae.

No. 07-15659.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 21, 2008.

Filed April 29, 2009.

Joy E. Herr, Tucson, AZ, for the plaintiff-appellant.

Mark Haag, Washington, DC, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona, Susan R. Bolton, District Judge, Presiding. D.C. No. CV-06-00703-SRB.

Before: MARY M. SCHROEDER, D.W. NELSON and STEPHEN REINHARDT, Circuit Judges.

SCHROEDER, Circuit Judge:

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 this 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 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, 126 S.Ct. 2208, 165 L.Ed.2d 159 (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 dispute before us is over which of our own prior decisions should control. The case boils down to a question of whether it is factually more similar to our court's decision in Save Our Sonoran v. Flowers, 408 F.3d 1113 (9th Cir.2005) ("SOS"), or to our decision in Wetlands Action Network v. U.S. Army Corps of Engineers, 222 F.3d 1105 (9th Cir.2000) ("Wetlands"). In SOS, we held that before the Corps could grant a permit to fill washes similar in nature to those at issue in this 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. SOS, 408 F.3d at 1122. In Wetlands, we considered a project that required filling natural saltwater wetlands, but in mitigation created a larger freshwater wetland. Wetlands, 222 F.3d at 1110-11. We 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. Id. at 1116-17.

The district court in this case, in a thoughtful opinion, concluded it should follow Wetlands because it agreed with the analysis of the Corps in the district court that the bulk of this project could be developed independently, without affecting the area traversed by the washes. Upon a close review of the district court and administrative records, including the permit application itself and concerns that the Environmental Protection Agency ("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.

I. Background

In sunnier economic times, the town of Buckeye, located in the western portion of the Phoenix metropolitan area in Maricopa County, envisioned itself growing from a community with a population of 8,500 people to one with about 600,000. This was to be accomplished through the private development of a number of new residential master-planned communities. In preparation for construction of one of these developments, the Corps issued a dredge and fill permit pursuant to the Clean Water Act, 33 U.S.C. § 1344(a). The permit was to be issued to Pulte Home Corporation and 10,000 West, LLC ("the developers") to build what was to be known as "Festival Ranch."

The development was to be located in an undeveloped desert area near the White Tank Mountains and the Hassayampa River floodplain, and was to house an estimated 60,000 people. The site occupies 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.

The permit, known as a Section 404 permit, was required because the development would necessitate dredging and filling of desert washes considered to be within the jurisdiction of the Army Corps of Engineers pursuant to the Clean Water Act. See 33 U.S.C. § 1344; 33 C.F.R. § 323.1. The Clean Water Act provides that "[t]he Secretary may issue permits, after notice and opportunity for public hearings[,] for the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a). In turn, the Act defines "navigable waters" as "waters of the United States, including the territorial seas." Id. § 1362(7). A Section 404 permit is a major federal action requiring review under the National Environmental Policy Act ("NEPA"). 42 U.S.C. § 4332(2)(C); Tillamook County v. U.S. Army Corps of Eng'rs, 288 F.3d 1140, 1142 (9th Cir.2002). 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).

Neither of the parties to this appeal, plaintiff-appellant White Tanks Concerned Citizens, Inc. ("WTCC") and defendants-appellees Army Corps of Engineers, disputes the existence of the Corps' jurisdiction under Section 404 of the Clean Water Act. The district judge observed that the developers, amici curiae in both the district court and here, did question jurisdiction in the district court, but did not raise the concern in a timely manner before the Corps. The district court explained it did not consider the jurisdictional issue because "plaintiff has only challenged the Corps' obligations under NEPA, and no party has asserted claims relating to the court's jurisdictional determination under the CWA." The same is true in this court. Thus no jurisdictional issues that might arise after the Supreme Court's divided opinion in Rapanos are before us.

The developers applied for a Section 404 dredge and fill permit on July 1, 2002, so that they could fill in 26.8 acres of washes and ultimately build Festival Ranch. 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 environmental analysis to the washes themselves and certain upland areas directly affected by the dredge and fill activity. The EPA and the FWS expressed concern that this permit would have unacceptable environmental impacts that would exceed NEPA's "significance" threshold. 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."

Plaintiff-Appellant WTCC also submitted negative comments. WTCC describes itself as an Arizona non-profit public interest corporation that has been involved in efforts to preserve the White Tank Mountains and surrounding areas since 2000. It urged the Corps both to analyze the impacts from the entire Festival Ranch project and to conduct a full-scale EIS, rather than a shorter Environmental Assessment ("EA") followed by a FONSI.

Despite the negative comments, both governmental and non-governmental, that the Corps received on its restricted scope of analysis, the Corps did not expand its analysis or create an EIS. On July 25, 2005, the Corps instead issued a FONSI after concluding that the issuance of the dredge and fill permit would not cause significant environmental impacts with respect to the areas it considered, i.e., the 787 acres of washes and the 83.6 acres of uplands immediately adjacent to the washes.

WTCC filed this action against the Corps on March 10, 2006, in the United States District Court for the District of Arizona. The developers appeared as amici curiae. The developers challenged WTCC's standing to bring the action. The district court viewed the affidavit of WTCC's director and spokesperson, Kim Beneli, as insufficient for showing injury in fact. The court nonetheless fully addressed the merits of WTCC's claims and ultimately granted summary judgment for the Corps on the merits.

Standing is also an issue on appeal, and we reject the developers' contention that WTCC's affidavit is insufficient to establish standing. We address WTCC's principle contention on the merits that the district court erred...