Save our Sonoran, Inc. v. Flowers: navigable waters and small handles in the dry, dry desert.

• Author: Howard, Gordon H.

1. INTRODUCTION II. SAVE OUR SONORAN, INC. V. FLOWERS. THE FACTUAL BACKGROUND A. The Lone Mountain Property B. Save Our Sonoran I: The District Court Decision C. Save Our Sonoran II: The Ninth Circuit Decision III. NATIONAL ENVIRONMENTAL POLICY ACT ANALYSIS A. Background History. B. Scoping Analysis Issue: Corps Regulation C. Sylvester's Validation of Corps Regulation D. Wetlands Action Network: Defining the Corps Regulation E. The Save Our Sonoran Surprise F. Criticism of the Save Our Sonoran Analysis IV. CLEAN WATER ACT ANALYSIS A. Introduction B. Pre-SWANCC C. SWANCC Decision D. Fallout from SWANCC E. SWANCC and Groundwater F. SWANCC and Tributaries to Navigable Waters V. SAVE OUR SONORAN AND FEDERALISM VI. A NEW "SMALL HANDLE" PROBLEM VII. CONCLUSION I. INTRODUCTION

   Picture 608 acres of Sonoran Desert in outer Northeast Phoenix, Arizona, amidst new typical upscale suburban development. The property contains flora and fauna uniquely adapted for life in one of the driest climates of North America. Desert arroyos and washes criss-cross the property, sometimes carrying surface water for only a few hours a year. (1) A developer wishes to put 794 single-family residences in a gated community on the site. A local environmental group sues to stop the developer's plans. The vehicle they use to challenge the development is a United States Army Corps of Engineers (Corps) permit required under the Clean Water Act (CWA) to discharge fill into, or otherwise disturb, the navigable waters of the United States, in these desert arroyos and washes. (2) When pursuant to its regulations implementing the National Environmental Policy Act (NEPA), (3) the Corps limits its analysis of the permit to the actual areas of the proposed fill and disturbance, the United States District Court for the District of Arizona grants a preliminary injunction on the grounds that the Corps should have analyzed all significant environmental impacts, not just impacts to navigable waters of the United States, over the entire 608-acre parcel. (4) The Ninth Circuit Court of Appeals upholds the injunction. (5) The application of CWA jurisdiction based on the navigable waters of the United States to 608 acres of Sonoran Desert in Arizona seems, on its face, to be an absurd application of law. (6)

   The Ninth Circuit decision in Save Our Sonoran, Inc. v. Flowers (Save Our Sonoran II) was the latest chapter in the saga of "small handles," a problem of NEPA statutory interpretation. (7) A "small handle" problem occurs when a federal agency asserts jurisdiction over a small portion of a larger project, most of which requires no federal oversight. (8) The Corps faces this problem often when reviewing dredge and fill permits under the CWA. (9) The watercourse or wetland under Corps jurisdiction is often a small portion of a larger project, often a land development proposal subject to traditional local government jurisdiction. (10)

   Reversing Ninth Circuit precedent, (11) the Save Our Sonoran II court upheld the district court's ruling that the desert washes, totaling 31.3 of the 608 acres on this patch of Arizona desert (the Lone Mountain property), were significant enough to require the Corps to assert jurisdiction over the entire parcel. (12) In doing so, the Ninth Circuit discounted factual similarities between the Lone Mountain property and similar properties in earlier Ninth Circuit cases in which the court reached the opposite conclusion. The court also ignored the Corps's own regulations, which arguably disallow an assertion of jurisdiction based merely on an interdependence between the regulated activity and the entire project. (13)

   The United States Supreme Court decision in Solid Waste Authority of Northern Cook County v. United States Army Corps of Engineers (SWANCC) (14) raises a more fundamental question in such situations: Should the Corps have any jurisdiction at all over an intermittent desert wash under the CWA? The SWANCC decision denied the Corps jurisdiction over non-navigable and isolated bodies of water, finding them to be at the outer limits of federal Commerce Clause jurisdiction. (15) Since then, most Circuits, including the Ninth Circuit in Headwaters v. Talent Irrigation District (Talent), (16) have limited the holding of SWANCC to its invalidation of the Corps' Migratory Bird Rule, and the Supreme Court has declined to review any of these lower court decisions. (17)

   In particular, the Ninth Circuit stated in Talent that tributaries of navigable waters, such as the desert washes in Save Our Sonoran, are navigable waters subject to CWA jurisdiction. Instead of birthing a radical new CWA and Commerce Clause jurisprudence, the SWANCC decision is best viewed as the Supreme Court setting forth a ne plus ultra line in the sand, beyond which the actions of Congress and federal agencies become too much to stomach. The developer in Save Our Sonoran I and II chose not to challenge the jurisdiction of the Corps under CWA or the Commerce Clause, and given the Ninth Circuit propensity to narrow the SWANCC holding, as exemplified by Talent their judgment was probably correct. But the tenuous connection of the very intermittent desert washes to navigable waters of the United States, through either groundwater connections or surface tributaries, may someday provoke another SWANCC-like Supreme Court eruption on the virtues of federalism in applying the CWA.

   In addition to the problems raised by SWANCC, the factual situation regarding the Lone Mountain property in Save Our Sonoran II raises an interesting and novel point: can two statutes--one with a "small handle" (NEPA) and one which reaches the outer limits of Commerce Clause authority (CWA)--combine to produce a constitutionally or statutorily unacceptable upward ratcheting of federal involvement in a project? The three warnings issued by the Supreme Court in SWANCC regarding Congressional intent, encroachment on traditional state power, and limits to Commerce Clause authority, indicate a need to limit the Corps's jurisdiction in this situation to actual watercourses, not the whole property.

   To avoid Commerce Clause issues, one must view NEPA and the CWA in concert to determine whether the result goes beyond the legitimate scope of review. The Supreme Court draws this line in the sand in SWANCC, as well as its other recent Commerce Clause bombshell cases, United States v. Lopez (18) and United States v. Morrison. (19) When, as in this situation, the result stretches the bounds of federal jurisdiction beyond the breaking point, the Corps is correct to prudentially limit its scope of review to actual areas of fill and disturbance. Courts should be wary of questioning these types of NEPA scoping decisions, considering the constitutional suspicions which will result.

   Part II of this Comment discusses the factual situation and the results reached by both the district court in Save Our Sonoran I and the Ninth Circuit in Save Our Sonoran II. Part III analyzes the NEPA "small handle" problem for Corps dredge and fin CWA permits, the previous Ninth Circuit response to the problem, and the different approach taken by both Save Our Sonoran courts. Part IV then analyzes whether Corps jurisdiction over the Lone Mountain property can survive a post-SWANCC CWA analysis. Part V criticizes the Save Our Sonoran decisions as running counter to the trends limiting federal involvement in implementing environmental statutes and increasing deference toward state and local government in their traditional roles. Part VI raises the new "small handle" problem, where the tenuous assertion of authority under two federal environmental statutes can raise an unconstitutional or statutorily unacceptable result. Finally, Part VII calls on federal agencies and lower courts to respect the federalist interpretation of the Supreme Court when implementing environmental statutes.

2. SAVE OUR SONORAN INC. V. FLOWERS. THE FACTUAL BACKGROUND

   1. The Lone Mountain Property

      The State of Arizona's ownership of the 608-acre Lone Mountain Property as trust land provided the genesis for Save Our Sonoran. (20) In 2000, the Arizona State Land Commissioner decided to sell the property. (21) When a neighbor of the property protested, the Commissioner denied the protest. (22) The neighbor then fried an action challenging the Commissioner's sale order, raising both procedural issues and allegations that the sale encouraged "leapfrog" development, specifically prohibited by the Arizona statute governing the disposition of state trust lands. (23) The Arizona Court of Appeals determined that the sale did not promote leapfrog development on state lands. (24) The court upheld the finding of the Commissioner that the tract was surrounded by development, and thus could not constitute leapfrog development. (25) The state then went ahead and sold the property to a private developer, 56th & Lone Mountain L.L.C. (Lone Mountain). (26)

      Lone Mountain then proceeded with plans to develop the property. The property is at the outer northeast edge of the Phoenix City Limits. (27) It is designated in the Phoenix General Plan (28) as suitable for low-density residential development of one to two dwelling units per acre. (29) The zoning is RE-35, (30) which allows one dwelling unit for every 35,000 square feet, but allows clustering onto smaller lot sizes pursuant to a common zoning instrument known as the "Planned Unit Development." (31) To the south and west is the City of Scottsdale. To the north is the town of Cave Creek, an upscale low-density residential community. (32) Pockets of unincorporated Maricopa County also remain in the area. This portion of the Phoenix Metropolitan Area has seen rapid growth and development over the past decade. (33) The surrounding area is rapidly filling with similar upscale suburban residential communities, intermingled with scattered, formerly rural homesites. (34) Such areas throughout the United States are typically...