Reinstatement of a Phoenix developer’s permit to build a 28,000-home project in Benson is likely now that federal agencies have stood by an earlier decision limiting its environmental reviews, say attorneys on both sides of the case.
Last week, U.S. Fish and Wildlife Service official Jeff Humphrey wrote a letter saying the service’s Arizona field office sees no reason to change its 2017 stance that the development is unlikely to adversely affect three endangered and threatened species living near the project site — or their designated critical habitat.
In a related matter, the wildlife service’s parent, the Interior Department, this week let the Arizona Daily Star know that it’s keeping its internal communications involving the 2017 Villages of Vigneto decision under wraps. The Star had requested them through the federal Freedom of Information Act. The Interior’s Solicitor’s office released 41 pages of documents to the Star, but those containing substantive information were almost totally blacked out under a commonly used FOIA exemption.
Humphrey, field supervisor for the service’s Arizona Ecological Services office, wrote the U.S. Army Corps of Engineers, which is considering whether to reinstate a 2006 permit for the project that has been suspended since February.
Since the Corps has reached a similar conclusion recently, attorneys Lanny Davis for the developer and Stu Gillespie for environmentalists agreed that it’s likely the project’s federal Clean Water Act permit will be reinstated, possibly soon. Corps spokesman Dave Palmer declined to comment on the case, because it’s in litigation.
Humphrey said the service’s review of the case was triggered by a request to do so from the Corps. That request followed recent allegations by his predecessor, Steve Spangle, that back in 2017 Spangle was successfully pressured by higher-ups in the Interior Department to reverse his earlier, tougher stance on the project.
Spangle had previously argued that the Vigneto project needed a wide-ranging environmental review because it had the potential to negatively affect endangered species and their critical habitat. He was concerned that its groundwater pumping would dry up sections of the neighboring San Pedro River. Such a review would have taken a much longer wait time for a development that’s now been hold for 13 years.
But Spangle told the Star in an interview that he had been told by a friend in the department that it was in his interest politically to back down.
Humphrey’s June 12 letter followed what he called an internal review conducted by the wildlife service’s Arizona Ecological Services office in Phoenix. Because of Spangle’s allegation of political pressure, the Arizona office didn’t consult with officials in its Albuquerque regional office or in Washington, D.C,, Humphrey said.
Saying, “We take the allegations made by Mr. Spangle seriously,” Humphrey wrote that his allegations still don’t change the service’s earlier conclusion, reached in October 2017.
“Our decision is based only upon facts contained in the records supporting” the that earlier decision, Humphrey wrote.
Humphrey’s letter offered no detail to explain his decision. In an interview, he said he can’t comment further, due to a formal notice of intent to sue the wildlife service and the Corps on this issue filed by environmentalist opponents months ago.
But Humphrey’s letter alluded to past statements from the Corps and the developer that El Dorado could build Vigneto even without a Clean Water Act permit, as a factor in the service’s October 2017 decision.
Humphrey’s letter came as “a complete surprise” to Davis and others representing Vigneto, Davis told the Star this week.
“I completely respect Mr. Spangle’s feelings and any pressure from Washington to Mr. Spangle, if it occurred, as he said it did, I think it was and is completely inappropriate,” Davis said. “It doesn’t matter to me who it was. It was completely inappropriate.”
He said he’s glad that the Arizona wildlife service office took Spangle’s concerns seriously — “They took a brand new look at the issue of endangered species that might be affected by the project. And they ended up, independently of anything from Washington, and confirmed with what Mr. Spangle ended up with — that there were no likely adverse effects on endangered species,” Davis said.
“In other words, FWS took Mr. Spangle’s concerns seriously, with no influence from Washington at all,” Davis said.
Previously, Davis had acknowledged that El Dorado CEO Mike Ingram had telephoned then-Deputy Interior Secretary David Bernhardt back in 2017 to raise his concerns about Spangle’s earlier opinion. But Davis said that all Ingram had wanted was for Bernhardt to properly consider “the facts and the law” in the case. Bernhardt is now Interior secretary.
Gillespie called Humphrey’s letter a tremendous setback for Arizona and the San Pedro’s future.
“The FWS’ letter is also a textbook example of an arbitrary decision. The FWS did not undertake any additional analysis of the facts or the law,” Gillespie said.
“It blindly deferred to the Corps and simply assumed that ‘Vigneto is feasible with or without a Clean Water Act 404 Permit,’” Gillespie said.
“But that assumption is contradicted by the record, including El Dorado’s own statements confirming its need for a permit,” to build Vigneto as it planned, Gillespie said.
The developer has said it would build a different kind of project, with different road corridors and delays in some of its housing, if it didn’t get the permit. Attorney Davis has said he doesn’t believe that issue was a factor in the agencies’ decision not to require the broader environmental review.
“In fact, Mr. Spangle rejected El Dorado’s bald assertion that it would build Vigneto without a permit,” Gillespie said. “Mr. Humphrey provides no basis for reaching a different conclusion, other than his rote incantation of the company line.”
Spangle told the Star he was comfortable with the wildlife service’s latest action although he disagrees with it.
“The FWS is in a position (of) not having on-staff expertise to refute the Corps’ determination. They have no staff expertise to evaluate the engineering, financial, or other technical aspects of project viability, so are unable to challenge the Corps’ determination,” Spangle said.
At the same time, the service, asked to evaluate an action, is required to evaluate direct and indirect effects, Spangle said.
“If a developer applies for a permit, it’s reasonable to assume it’s because it needs one. FWS should simply evaluate the action’s effects whether there’s a Plan B or not,” he said.
The Vigneto permit has been on hold since February, when the Army Corps suspended it for review after environmentalists had filed a lawsuit to overturn the Corps’ October 2018 decision to reinstate the permit. Since the Corps first issued the permit in 2006, it has suspended the permit twice and reinstated it once.
In May, the Corps wrote Humphrey saying it saw no reason to change its original conclusion, but wanted to know, “out of an abundance of caution,” whether Spangle’s comments had changed the service’s position.
