Vigneto opponents issue notice of lawsuit against Army Corps over Benson-area project

Critics of a controversial 28,000-home development planned in Benson issued a notice of intent to sue on Friday, alleging the U.S. Army Corps of Engineers’ approval of a crucial water permit for the project violates federal law.

The notices gives the Corps 60 days to remedy the alleged violations of the Endangered Species Act before environmental law firm Earthjustice files the suit on behalf of its clients: the Lower San Pedro Watershed Alliance, the Center for Biological Diversity, the Sierra Club, the Maricopa Audubon Society, the Tucson Audubon Society and the Cascabel Conservation Association.

In October, the Army Corps reinstated the Clean Water Act permit for the Villages at Vigneto master-planned community, which had been on hold since the Corps suspended the permit in 2016.

That suspension came two months after Earthjustice sued the Corps for its failure to consult with the U.S. Fish and Wildlife Service about the project’s impacts to endangered species. The Corps subsequently agreed to initiate consultation with the wildlife service, resulting in a settlement of that lawsuit.

The new suit would allege the resulting consultation was invalid because it was based on an “impermissibly narrow” scope of analysis that ignores the majority of Vigneto’s impacts.

The consultation did not take into account the project’s impacts to groundwater levels, critical habitats and listed species, including the western yellow-billed cuckoo, the northern Mexican garter snake, the jaguar and others, the notice said.

“They’re turning a blind eye to the scope of this project and just how significant it’s going to be,” said Stu Gillespie, an Earthjustice attorney. “It’s another example of how the Corps is trying to avoid its obligations to take a hard look at the scope of impacts here.”

Corps spokesman Dave Palmer said Friday he could not comment due to the pending litigation.

Vigneto’s developer, Phoenix-based El Dorado Holdings, inherited the Clean Water Act permit 2014 from another developer who planned a smaller project, to be called Whetstone Ranch, on the same site.

Environmentalists had long been pushing regulators to re-evaluate the permit approval, since the proposed Vigneto project, at 12,300 acres, is 50 percent larger than the previously permitted development. In addition, in the 10 years since the initial permit was approved, two species in the area — the cuckoo and the garter snake — have been listed as endangered.

Back in 2016, the wildlife service sided with environmentalists in insisting that federal agencies’ review of Vigneto must consider the environmental impacts of Vigneto’s entire 12,300 acres, including the impact of groundwater pumping for the 70,000 residents the project is expected to bring to Benson.

Environmentalists argue the groundwater pumping could dry up the San Pedro River, the Southwest’s last major free-flowing desert river.

But in a stark reversal of its previous position, the wildlife service said last year that it agreed with the Corps that the consultation’s scope of review could be curtailed.

The rationale for this limitation — echoed in the environmental assessment on which the Corps based its permit approval — relied on a controversial claim from the developer: El Dorado insists it could still develop the project without the Clean Water Act permit.

Therefore, the wildlife service said the Vigneto development couldn’t be considered a “direct” result of issuing the permit, so the entire project’s impacts, including its effects on groundwater levels, could not be considered when deciding whether to approve the permit.

If the project could proceed without the permit, then technically the only impacts directly caused by the permit approval would be El Dorado’s filling of 51 acres of desert washes allowed by the permit, and the habitat-mitigation activities the permit requires in exchange for that environmental damage, regulators said.

Due to that narrow scope of analysis, the wildlife service said it agreed with the Corps’ findings that if Vigneto’s Clean Water Act permit were to be approved, the project was unlikely to harm critical habitats and endangered or threatened species on the project site.

El Dorado spokesman Mike Reinbold did not respond to calls seeking comment on the pending litigation or on the permit reinstatement.

Environmental activist Tricia Gerrodette said El Dorado’s claim that it doesn’t need the permit is unsupported.

“They put forth nothing that would support that,” she said. “All of their planning has been around being able to cross the washes and being able to connect the communities” into a cohesive master-planned community.

In fact, El Dorado has in the past asserted that without the Clean Water Act permit allowing it to fill in washes, it could not complete Vigneto in a way that meets the planned community’s goals.

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El Dorado President Jim Kenny wrote in a September 2017 letter to the Corps, obtained by the Arizona Daily Star through a Freedom of Information Act request, that avoiding the desert washes would undermine the project’s “core concept of interconnected villages.”

“Major streets and backbone infrastructure would be oriented west-to-east between the major washes, and would not be interconnected and integrated,” he wrote. “Admittedly, developing our property in this manner would not meet our project purpose.”

Environmentalists also object to the Corps’ decision to only look at “phase 1” of the housing development, which covers 8,200 acres of the 12,300-acre project. Critics call this “piecemealing,” a strategy that understates the cumulative impacts of development to the environment.

ECONOMIC BOON

A 2015 economic analysis done for developer El Dorado projected that by 2020, the Vigneto project will generate $1.2 billion in economic impacts annually and could support 9,460 construction and other jobs.

The business community is “cautiously optimistic” that Vigneto will help turn around negative economic trends in Benson since the Great Recession, said Mahlon MacKenzie, owner and designated broker at Long Realty Benson and past president of the Benson/San Pedro Valley Chamber of Commerce.

“It’s going to be a positive impact for Cochise County, which has suffered badly since 2008 forward,” he said. “We’re just going to have to get used to having a lot more people in the area, that’s all.”

Heather Floyd, current president of the Benson chamber, said increased tax revenues from the development could help bolster infrastructure in Benson and perhaps revitalize the downtown area. More job opportunities could help keep young people from leaving the city to seek work elsewhere, she said.

“If we can have an increased economic impact where we can actually provide good jobs at home and keep our families living closer, that’s a benefit to all of us,” she said.

El Dorado spokesman Reinbold told the Benson City Council that, after delays, groundbreaking for Vigneto is now expected to happen in the first quarter of 2019.

Project FEASIBILITY

Benson resident Tom Goode, who lives in the SKP Saguaro Co-op RV park on State Highway 80, said he worries the Vigneto project isn’t feasible.

“I guess I have concerns down the road they’re going to go belly up and the city is going to be on the hook for some significant financial losses,” he said.

One City Council member said he is also “leery” of the future of the Vigneto project, which aims to bring 70,000 people to the small town of Benson and will market homes that start at $250,000.

Councilman David Lambert expressed confusion about El Dorado’s claim that it doesn’t actually need the Clean Water Act permit it had sought for two years, but he said that’s a “moot point,” since the permit is already approved.

He’s now more concerned about Vigneto’s marketability to potential buyers.

“How many houses are they really going to sell?” he said. “There are so many houses available in Tucson and all these other communities that aren’t selling. ... Are they going to build out the first 1,000 homes the first year and then all the sudden quit building because they can’t sell them?”

Lambert said he’s not reassured by the developer’s resistance to addressing his requests for more information.

“They just look at me and say, ‘We told you all the information you need to know,’” he said.

The Star sent multiple interview requests to all members of the City Council and Benson Mayor Toney King. None other than Lambert responded.