Court asked to vacate Corps decision on Vigneto permit

In the St. David area, there are small springs which upwell from the subflow zone of the San Pedro River and from the aquifer. With unmanaged groundwater pumping and climate change, such springs could disappear, according to hydrologists familiar with the SPRNCA.

SIERRA VISTA — Environmental groups are not giving up on holding the U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers accountable for a decision paving the way for the proposed 28,000 home development Villages at Vigneto in Benson.

On Aug. 23, Earthjustice attorneys Stu Gillespie and Caitlyn Miller filed a complaint asking the court to vacate the decision by the federal agencies which allowed them to forego studies on the environmental impact of a large development near the San Pedro River, the San Pedro Riparian National Conservation Area (SPRNCA) and its threatened and endangered wildlife.

Earthjustice is representing Lower San Pedro watershed Alliance, The Tucson and Arizona Audubon Societies, Center for Biological Diversity, Cascabel Conservation Association and the Grand Canyon Chapter of The Sierra Club.

The decision will be up to Senior U.S. District Court Judge Raner C. Collins.

Earthjustice is asking the court to “declare the Corps violated the Clean Water Act by granting the 404 Permit without objectively analyzing whether granting a permit was the least environmentally damaging practicable alternative and without adequately mitigating the impacts of the 404 Permit or ensuring that granting a 404 Permit is in the public interest.”

In addition to vacating the Corps’ decision, the complaint also seeks an injunction to prohibit any action on the Villages at Vigneto development “unless and until the defendants comply with the Endangered Species Act (ESA), the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), the Administrative Procedure Act (APA) and all the implementing regulations.”

According to Gillespie and Miller, El Dorado Holdings, LLC, previously “conceded it could not fulfill its basic objectives to build out the development without a Clean Water Act 404 Permit due to the density and layout of jurisdictional washes across its 12,167 acres.”

Many of the washes carry storm flow to the river. Any disturbance of them which could impact a waterway has to be studied and mitigated if found to be detrimental to an aquatic environment, they said. Steps need to be taken to avoid impacts to wetlands, streams and other aquatic resources.

Under CWA regulations, the Corps “is required to thoroughly analyze the impacts of the proposed Vigneto development and to ensure that any unavoidable impacts are adequately mitigated,” they said.

“El Dorado needs a permit to fill these washes at over 350 locations spread broadly across the site to develop its cohesive, master-planned community,” according to the attorneys. “Under these circumstances, the Corps has an obligation under NEPA to thoroughly analyze the environmental consequences of granting El Dorado a 404 permit, including the significant adverse effects of the entire, integrated Vigneto development on upland habitat, surface hydrology, groundwater, riparian habitat, SPRNCA — including federally reserved water rights — and listed species and critical habitat.”

Moreover, the Corps is obligated under the ESA “to formally consult with the Fish and Wildlife Service (FWS) regarding the adverse effects of the proposed development on listed species — including the jaguar, western yellow-billed cuckoo, southwestern willow flycatcher, northern Mexican gartersnake, and Huachuca water umbel — on their proposed and designated critical habitat.“

The Environmental Protection Agency (EPA) “repeatedly directed the Corps to prepare a comprehensive analysis of the entire Vigneto development based on high quality data, adequate public disclosure and a thorough NEPA analysis,” they continued.

The U.S. Fish and Wildlife Service (FWS) also urged the Corps to analyze the impacts of developing the entire 12,167–acre Vigneto parcel to avoid a piecemeal analysis which would fail to account for the adverse impacts of the whole project on listed species and critical habitat.

Yet, contrary to these agencies’ expert advice, the Corps did not analyze possible significant impacts of the Vigneto development on listed species and critical habitat, the San Pedro River and the broader environment, they allege.

As a result, neither the Environmental Assessment (EA) nor the Biological Evaluation (BE) prepared by the Corps evaluated the extensive impacts of the Vigneto development on the environment, a clear oversight that violates NEPA, CWA, ESA and APA.

Possible political pressure applied

Gillespie and Miller go on to discuss the possible “improper political interference” after a meeting at a Montana resort between from then-deputy Interior Secretary David Bernhardt and El Dorado Holdings, LLC, owner Mike Ingram. They may have discussed the unfavorable situation Ingram was in at the time.

Now-retired FWS supervisor Steve Spangle blew the whistle and said he was told to change his determination of the need for the studies to one which favored El Dorado Holdings, LLC, and required no further research.

The court filing describes the part played by Peg Romanik, an associate attorney from the Department of Interior’s Solicitor Office, and Bernhardt. Romanik told Spangle “she received a call from a higher-up political appointee at the Department of Interior who told her that the Arizona Ecological Services office’s position was not the position of the administration.”

She told Spangle that “if he knew what was good for him,” he would reverse his position on the Vigneto development. She also allegedly said Spangle’s “reversal would remove a major roadblock for the development and allow it to move forward without in-depth analysis.”

Spangle did as he was told, but came forward after his retirement to explain he changed his report under pressure from higher-ups. He originally determined granting the 404 Permit would have severe adverse impacts on listed species and critical habitat.

In an interview with the Herald/Review at the time, Spangle emphasized, “It is likely that an appreciable volume of groundwater will be withdrawn to serve the development. Such a displacement of groundwater from the aquifer is likely to reduce flow in the San Pedro River, in reaches designated as critical habitat.”

The uproar got the attention of Rep. Raul Grijalva, chairman of the Congressional Committee on Natural Resources, who is looking into the ethics of the tactics used to push the permit through.

The attorneys noted, “The Corps” impermissibly constrained scope of analysis was the product of improper political interference. For years, FWS refused to concur with the Corps’ narrow definition of the action area, demanding a comprehensive analysis of the adverse impacts of the entire Vigneto development.

The 404 permit has been granted to El Dorado Holding, LLC, allowing the company to move forward with development.

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