ELR Citation: ELR 20096
No(s). 07-15659 (9th Cir. Apr 29, 2009)

The Ninth Circuit held that the U.S. Army Corps of Engineers violated the National Environmental Policy Act (NEPA) in granting developers a Clean Water Act (CWA) §404 permit to fill certain ephemeral washes as part of a large-scale development project in Arizona. Both the U.S. Environmental Protection Agency and the U.S. Fish & Wildlife Service urged the Corps to conduct a full-scale environmental analysis, including an environmental impact statement addressing the large-scale direct, secondary, and cumulative impacts of the project. Instead, the Corps issued a finding of no significant impact after concluding that the issuance of the dredge and fill permit would not cause significant environmental impacts with respect to the areas it considered—787 acres of washes and 83.6 acres of uplands immediately adjacent to the washes. The court rejected the Corps' argument that most of the site could be developed without filling in the ephemeral washes. Because the pattern of washes in the area makes any large-scale development avoiding the washes impossible, the Corps should have considered the entire scope of the development rather than restrict its environmental review to the washes and certain directly affected upland areas. The court therefore ordered that the Corps' issuance of the §404 permit be enjoined until it performs the requisite environmental analysis.