Clean Water Permit For Small Area Can Trigger Large Scale Environmental Assessment

Wednesday, June 05, 2013 12:00 am
Land Use Law Report, Volume 41, Number 6

            Even when a developer seeks a dredge and fill permit that covers only a small portion of its potential development, NEPA may still require an environmental assessment of the entire development site if construction would be impossible without the dredge and fill permit.
            Facts: 10,000 West LLC and Pulte Home Corporation (the developers) sought to develop a 60,000 resident development called Festival Ranch on 10,105 acres on currently undeveloped desert near the White Tank Mountains and Hassayampa River floodplain in Maricopa County, Arizona. The development site includes 787 acres of washes (or arroyos). The development plan called for the fill of 26.8 acres of those washes. The developers applied for a § 404 permit under the Clean Water Act (CWA), which allows “the discharge of dredged or fill material into the navigable waters[.]” 33 U.S.C. § 1344(a). Before a § 404 permit can be granted, the U.S. Army Corps of Engineers (the Corps) must investigate whether the dredging and filling would “significantly affect[] the quality of the human environment” under the National Environmental Policy Act (NEPA). 42 U.S.C. § 4332(2)(C).
During the public hearings pre[..]


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