Case summaries.

• Position: Case overview

1. ENVIRONMENTAL QUALITY

   1. Federal Water Polution Control Act

      1. White Tanks Concerned Citizens, Inc. v. Strock, 563 F.3d 1033 (9th Cir. 2009).

         White Tanks Concerned Citizens (WTCC) sought injunctive relief from a permit issued by the United States Army Corps of Engineers (Corps) pursuant to section 404 of the Clean Water Act (CWA). (1) The permit authorized property developers to dredge and fill desert washes that run through a large housing development in the Phoenix metropolitan area. WTCC challenged the adequacy of the environmental analysis (EA) performed by the Corps as required by the National Environmental Policy Act (NEPA) (2) prior to issuing the permit. The United States District Court for the District of Arizona, despite ruling that WTCC lacked standing to bring suit on behalf of its members, granted summary judgment in favor of the Corps. The United States Court of Appeals for the Ninth Circuit reversed, holding that WTCC had Article III standing and that the EA performed by the Corps was not adequate to warrant issuance of a section 404 permit. The Ninth Circuit remanded the case to the district court to enter an injunction against the issuance of the permit until the Corps conducts an adequate EA.

         Pulte Home Corporation and 10,000 West, LLC (the developers) proposed to construct a large residential development in an undeveloped desert area near the White Tank Mountains and the Hassayampa River floodplain, housing 60,000 people and spanning 10,105 acres. The site included 787 acres of desert washes, 26.8 acres of which would be filled during development. The developers applied for a section 404 permit on July 1, 2002, and the Corps issued a public notice in October 2003. (3) Comments were critical of the Corps' decision to restrict the scope of the EA to the washes themselves and certain upland areas directly affected by the dredge-and-fill activity. Nonetheless, the Corps did not expand its analysis and, on July 25, 2005, it issued a finding of no significant impact (FONSI) after concluding the permit would not cause significant environmental impacts with respect to the areas it considered. (4) WTCC, a nonprofit organization created in 2000 to preserve the natural area near the White Mountains, brought suit on March 10, 2006.

         The Ninth Circuit first addressed whether WTCC had standing to bring suit on behalf of its members. The district court determined WTCC lacked standing because the affidavit submitted by its director did not articulate the interests she personally had in the proposed development area. The Ninth Circuit, noting the technical failure of the affidavit with regard to its director, held WTCC demonstrated that the development "threatens imminent and concrete harm to the interests of [its] members" and thus had standing to sue. (5) The affidavit was sufficient to prove standing for the organization where the director certified that other members of the organization used the proposed development area for hiking and other activities. The court did not require individual affidavits from those members.

         The Ninth Circuit next addressed the scope of the Corps' EA, relying on precedent to draw a distinction between dispersed and concentrated waters triggering the Corps' jurisdiction under the CWA and the required scope of environmental analysis for each. In Save Our Sonoran v. Flowers (SOS), (6) the Ninth Circuit held that the EA on which issuance of a permit is based must assess the entire scope of the project because the pattern of the washes in the area made them impossible to avoid. (7) SOS involved waters that were not concentrated in a particular area--the Ninth Circuit described them as "capillaries through tissue." (8) In Wetlands Action Network v. United States Army Corps of Engineers (Wetlands), (9) the Ninth Circuit held that the Corps properly confined its environmental review to the wetlands and was not required to study the effects of the upland area because its development could proceed independent of the wetlands project. (10) The development in that case resulted in no net loss of wetlands due to the developer's mitigation projects. The filling of wetlands was a separate and independent phase of the master project. Thus, under the SOS "dispersed waters" factual scenario, an EA must include the effects of the entire development, but under the Wetlands "concentrated waters" scenario an EA may be limited to the effects on the waters.

         The Corps argued the situation was analogous to the facts in Wetlands, contending the development could proceed without filling in the washes. In other words, the Corps argued, there was a feasible "no-action alternative" because issuance of a permit was not required for development to proceed. This argument contradicted the administrative record, however. The developers' section 404 permit application admitted that a "no-action alternative" was not feasible because a cohesive master-planned community such as the one proposed required the washes to be filled. The developers stated the intention was to create a single community, not one comprised of "pods with restricted access and limited connectivity." (11) Determining that SOS was more closely analogous to the factual situation presented in this ease, the Ninth Circuit viewed the waters as "dispersed" throughout the project area and held the EA conducted by the Corps was insufficient. Additionally, the court emphasized that the expanded EA required by SOS was not contingent on the amount of water that would be disturbed by the development. Rather, the outcome depended upon the physical arrangement of wetland areas within the development site.

         In summary, the Ninth Circuit reversed the judgment of the district court, holding that development, as proposed, cannot occur without impacting jurisdictional waters. The matter was remanded for entry of an injunction against the issuance of a section 404 permit until the Corps performs the requisite analysis of the entire proposed development.

      2. Saint John's Organic Farm v. Gem County Mosquito Abatement District, 574 F.3d 1054 (9th Cir. 2009).

         Saint John's Organic Farm and its owner (collectively Plaintiff) brought an action under the citizen suit provision of the Clean Water Act (CWA) (12) against Gem County Mosquito Abatement District (GCMAD) and Gem County. Plaintiff alleged GCMAD was required to obtain a permit under the National Pollution Discharge Elimination System (NPDES) program before it could spray pesticides to kill adult mosquitoes in areas surrounding the farm. The parties entered into a settlement agreement that restricted the amounts and locations in which GCMAD could spray. The United States District Court for the District of Idaho denied Plaintiffs application for attorney's fees, and Plaintiff appealed. The United States Court of Appeals for the Ninth Circuit reversed, holding that Plaintiff was a prevailing party under the CWA, and remanded the case to the district court to determine whether an award of attorney's fees was "appropriate" under the "special circumstances" standard articulated in its opinion.

         GCMAD has a longstanding history of using pesticides to control mosquitoes in Gem County, Idaho. Plaintiff sent notice of its intent to sue pursuant to the CWA citizen suit provision, (13) alleging that GCMAD was illegally discharging into the waters of the United States and was required to obtain an NPDES permit for its ground and aerial application of pesticides. (14) Plaintiff requested an injunction against the discharge of all pesticides into specified waters, including the Payette River. After notice of the suit, GCMAD applied to the United States Environmental Protection Agency (EPA) for an NPDES permit. EPA responded that such a permit was unnecessary under its interim interpretive guidance. (15) GCMAD then brought suit in the United States District Court for the District of Columbia against EPA and the farm's owner, Peter Dill, seeking a declaratory judgment as to whether an NPDES permit was required. (16) The D.C. district court dismissed the suit, holding that no case or controversy existed between EPA and GCMAD because both parties took the position that no permit was required and that venue was improper for GCMAD's claim against Dill. (17)

         The parties reached a settlement agreement in the Idaho case in 2006. GCMAD agreed, among other terms, not to aerially spray for mosquitoes unless required by a health emergency and to restrict truck fogging to 300 feet from the Payette River and 150 feet from any irrigation canal within the county. (18) The district court retained jurisdiction to enforce the terms of the agreement and to decide the application of attorney's fees and costs submitted by any party pursuant to section 1365(d) of the CWA. Under the statute, a plaintiff can recover the costs of litigation from the defendant in a citizen suit if the court finds the plaintiff is a prevailing party and an award would be appropriate. (19) The district court denied Plaintiff's request for attorney's fees, holding that 1) Plaintiff was not a prevailing or substantially prevailing party and 2) an award of fees was not appropriate. The lower court reasoned that the settlement agreement did not promote the goals of the CWA, as interpreted in EPA's guidance document and subsequent regulation on mosquito control programs. The court also held that, even if Plaintiff was a prevailing party, an award of litigation costs was inappropriate because EPA would not issue GCMAD an NPDES permit, thus making an award of attorney's fees inequitable. The Ninth Circuit reviewed the district court's decision under an abuse of discretion standard. (20)

         The Ninth Circuit began its analysis by applying the prevailing party standard articulated in Richard S. v. Department of Developmental Services of California, (21) which requires judicial enforceability, a material alteration in the legal relationship between the parties, and actual...