Developers Lose Round |in White Tank Dispute

(CN) - The 9th Circuit ordered the U.S. Army Corps of Engineers to expand the scope of its environmental review before allowing developers to fill desert washes in largely undeveloped land west of Phoenix.

Two developers and an environmental group formed to oppose development locked horns over the Corps' decision to grant a Clean Water Act permit allowing the developers to fill several washes that run through an area near the White Tank Mountains, where 10,000 West LLC and Pulte Homes Corp. plan to build thousands of homes.

The parties disputed the scope of the environmental review required by the Corps before granting the permits.

White Tanks Concerned Citizens argued that the case is factually similar to the 9th Circuit ruling in Save Our Sonoran v. Flowers (SOS), which forced the Corps to consider the entire scope of development before it could fill washes similar to the washes at issue.

The government, however, said the case was more like the dispute in Wetlands Action Network v. U.S. Army Corps of Engineers, which involved filling in saltwater wetlands. In that ruling, the 9th Circuit held that the Corps properly confined its environmental review to the wetlands, because development of the upland area could proceed independently of the wetlands project.

U.S. District Judge Susan Bolton sided with the government, saying most of the project could be developed without affecting the area traversed by the washes.

But Judge Schroeder concluded 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."

The three-judge panel reversed, saying the Corps based its environmental impact finding on "too narrow a scope of analysis."

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