Lawsuit challenges federal approval of Benson project near the San Pedro River

Six environmental groups filed a lawsuit Friday charging that a big Benson development threatens to dry up a section of the San Pedro River and that a federal permit clearing the way for its construction was approved due to political pressure on a top government biologist.

The lawsuit is the latest in a string of suits challenging the Clean Water Act permit for the 28,000-home Villages at Vigneto project. On July 26, the U.S. Army Corps of Engineers reinstated the permit for the project that it had approved in 2006 but later suspended.

The suit accuses the Army Corps and the U.S. Fish and Wildlife Service of violating four federal laws in approving Vigneto. They are the Clean Water Act, the National Environmental Policy Act, the Endangered Species Act and the Administrative Procedures Act.

The suit also brings into the legal arena the recent allegations of a biologist that when he was a Fish and Wildlife Service official he helped grease the skids for the project in 2017 due to political pressure from higher-ups in the U.S. Interior Department.

Steve Spangle, former longtime head of the wildlife service’s Arizona office, told the Arizona Daily Star this spring that he was pressured by his supervisors into scaling back how broadly the feds analyzed Vigneto’s environmental impacts.

Army Corps spokesman Dave Palmer said, “As a matter of policy we don’t comment on matters under litigation.”

Lanny Davis, a Washington, D.C. attorney representing Phoenix-based El Dorado Holdings LLC, the Vigneto developer, said in an email that he won’t comment on “the unproven allegations of plaintiffs. Will let the court decide.”

Plans for when construction will begin “are unknown at the moment,” Davis said.

He said, however, he’s confident that allegations made by plaintiffs are “baseless.”

Davis has sought to rebut Spangle’s and environmentalists’ allegations that political pressure played a role in the project’s approval.

Davis has said that the decision was based strictly on “the facts and the law — no politics.” He has noted that this year, the Army Corps and the wildlife service reaffirmed their decisions to limit the scope of analysis on Vigneto, and that the service’s Arizona office took that position without consulting its Washington, D.C. office.

The new lawsuit, however, said political pressure caused Spangle to “turn a blind eye on the adverse impacts of the Vigneto development on endangered species and critical habitat.” Spangle’s decision “was not based on fact or science, but on politics, rendering it arbitrary, capricious, and contrary to law,” the lawsuit said.

The Vigneto project, one of the largest ever planned for Southern Arizona, would lie south of Interstate 10 and east of state Route 90, in the Whetstone Mountains’ foothills. Its boundaries range from 4 to 8.6 miles west of the San Pedro River.

The permit allows the discharge of dredged and fill material of 57 acres out of 8,212 acres of the Vigneto project, which eventually will cover 12,167 acres.

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The lawsuit calls the San Pedro “the last major, free-flowing river in the desert Southwest, a sanctuary for millions of migrating birds, and home to one of the most diverse assortment of animal and plant species in the United States.”

The river supports breeding or migration habitat for 389 bird species (almost half of those seen in North America), 84 mammal species (second in diversity only to the rainforests of Costa Rica) and 47 species of reptiles and amphibians, it says.

But the river is sustained by groundwater that Vigneto would pump, amounting to 8,427 acre feet annually, the lawsuit says. The pumping will “support 70,000 new residents and replicate a verdant Italian village in the Sonoran desert of Arizona,” as developers have described Vigneto, the suit said.

“This magnitude of groundwater pumping threatens the San Pedro River’s surface and subsurface flows, and would compound the current groundwater overdraft, irreversibly degrading the River’s riparian habitat, and adversely affecting hundreds of migratory bird species, including multiple endangered and listed species that depend on the River for their survival,” the suit said.

Among other studies, the suit cited 2018 research by hydrologist Chris Eastoe, concluding that there is a highly permeable layer of sediment connecting the river to an aquifer underlying the St. David Cienega east of Benson. Large increases in pumping from this aquifer would likely reduce groundwater discharge into the cienega and nearby springs, the suit said.

El Dorado attorney Davis disputed the concern about the San Pedro in a recent op-ed article in the Star that cited an Arizona Department of Water Resources finding that the underlying aquifer has enough water to serve Vigneto for 100 years.

“It’s simple common sense that if there is no impact on adequacy of water on the nearby Benson community then there would not be such an extreme impact on the San Pedro River,” he wrote.

The Army Corps, however, has said the project’s impacts on the San Pedro are legally irrelevant to its decision to issue the permit.

That’s because it concluded it can only analyze the impacts of 1,919 acres of the project, including the areas where washes are filled, and where lands are preserved as buffers for the washes and to compensate for environmental impacts stemming directly from activities allowed by the permit.

The lawsuit, however, said the Corps should have analyzed impacts of development of the entire 12,167 acres. It sharply criticized the Corps for limiting that analysis based in part on a finding that the Vigneto land could be developed even if the permit weren’t granted.

“There is no basis for this assertion, and it is contradicted by the evidence,” the suit said.

For one, neither the Corps or the developer has provided a development plan showing that the 28,000 homes could be built while avoiding federally regulated washes whose disturbance would require a permit, the suit said. The Corps and developer also haven’t identified a feasible transportation plan for a project that would be built without a permit, the suit said.

Also, no evidence exists that a road system built for such a project could handle the 237,000 daily trips that the 28,000 homes and related businesses would generate, the suit said.