Save our Sonoran, Inc. v. Flowers: navigable waters and small handles in the dry, dry desert.
I. 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. II. SAVE OUR SONORAN INC. V. FLOWERS. THE FACTUAL BACKGROUND A. 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 plagued with chronic land use battles among developers, long-time residents, newly arrived suburban residents, and environmental activists. (35) The Lone Mountain property was the focus of such a land use battle. Lone Mountain proposed a low-density planned unit development of 794 homes on the 608-acre parcel. (36) The site itself is within the Sonoran Desert, one of four recognized desert ecosystems wholly or partially within the United States. (37) The Sonoran Desert generally receives between three and fifteen inches of rain per year, falling in uneven patterns and often in cataclysmic amounts. (38) As a result, the desert washes on the site rarely have any surface water, but when they do, the result is often a flood of water. (39) A preliminary review by the Corps determined that five percent of the site, or 31.3 acres, consisted of these desert washes, and qualified under the provisions of the CWA as "waters of the United States." (40) Lone Mountain's development plan required sixty-six separate areas of impact onto the subject waters, thus requiring a dredge and fill permit to be issued by the Corps pursuant to the CWA. (41) Lone Mountain's impacts were mostly related to proposed road and utility crossings of the washes. (42) The sixty-six separate impact areas proposed by the developer impacted 7.5 of the 31.3 allegedly jurisdictional acres. (43) In response to the developer's application, the Corps determined, under its regulations, that it had "control and responsibility" over the 31.3 acres of jurisdictional waters. (44) Pursuant to NEPA it issued an Environmental Assessment (EA) and a Finding of No Significant Impact (FONSI). (45) The Corps invited public comment on its determination, as required prior to issuance of a fill permit.(46) Both the Environmental Protection Agency (EPA) and the United States Fish and Wildlife Service (USFWS) opposed issuance of the permit on the grounds that the site was a potentially suitable habitat for the cactus ferruginous pygmy owl, listed as an endangered species under the Endangered Species Act. (47) Save Our Sonoran also made public comments. (48) The Corps, after considering the comments, reiterated its preliminary findings and issued the permit to Lone Mountain. (49) B. Save Our Sonoran I: The District Court Decision Save Our Sonoran then filed suit in the United States District Court for Arizona. (50) Their first motion was for a preliminary injunction, preventing Lone Mountain from going forward with grading and development during the course of litigation on the merits of the case. (51) Judge Martone of the district court granted the injunction, finding that Save Our Sonoran had a high likelihood of success on the merits, and that a balance of hardships favored Save Our Sonoran over the defendants developer and Corps. (52) Judge Martone boiled down the various claims to one dominant issue: whether the Corps's EA, limited to the washes themselves, was too narrow in scope. (53) The Court distinguished this situation from those facing the Ninth Circuit in Sylvester v. United States Army Corps of Engineers (54) and Wetlands Action Network v. United States Army Corps of Engineers. (55) In those cases the "waters" the Corps had jurisdiction over were separable from the majority of the project. (56) In contrast, the district court saw the washes on the Lone Mountain site as running through the property "the way capillaries run through tissue." (57) The Corps's own EA admitted "that if it did not issue the permit, the site could not be developed in accordance with the project's purpose." (58) The district court then analyzed the balance of hardships, which compared the "financial harm" facing the defendant developer with the "irreparable injury" possible to the desert landscape. (59) Finding this balance in favor of Save Our Sonoran, the district court issued a preliminary injunction stopping all development activities on the site. (60) The developer then appealed to the Ninth Circuit Court of Appeals. (61) C. Save Our Sonoran II: The Ninth Circuit Decision After disposing of the developer's claim that Save Our Sonoran lacked standing, the Ninth Circuit reviewed the district court's preliminary injunction. (62) The Ninth Circuit cited the "abuse [of] discretion" standard for reviewing the district court's decision (63) and reviewed that decision under the same two-pronged test for issuing a preliminary injunction: chance of success on the merits and balance of potential harm and hardships. (64) The Ninth Circuit agreed with the district court that Save Our Sonoran had raised "serious questions going to the merits" of the case and upheld the lower court's determination. (65) Additionally, the Ninth Circuit noted the disagreement among federal agencies themselves, exemplified by the comments of EPA and USFWS in opposition to the Corps's issuance of the permit, underscored the significance of these factual disputes on the merits. (66) According to the Ninth Circuit, the Corps had essentially discounted its own regulations, which state that it must determine impacts not only on its jurisdictional waters, but also on "those portions of the entire project over which the district engineer has sufficient control and responsibility to warrant Federal review." (67) The Corps's own environmental assessment concluded that denial of a permit would prevent the development from going forward in any manner similar to the developer's proposal. (68) Turning to the hardship analysis associated with the preliminary injunction, the Ninth Circuit also held that the district court had acted within the scope of its discretion. (69) In approving of the district court's balancing of the environmental harm with the potential financial harm to Lone Mountain, the Ninth Circuit stated that "[t]his is a classic, and quite proper, examination of the relative hardships in an environmental case." (70) III. NATIONAL ENVIRONMENTAL POLICY ACT ANALYSIS A. Background History The National Environmental Policy Act (NEPA) (71) was the topic of litigation in Save Our Sonoran I and II. NEPA is an ambiguous statute, full of ringing generalities and murky legislative history. (72) It has evolved over the past thirty-five years via the twin paths of federal agency regulation and federal court-statutory interpretation. (73) A good example of this phenomenon can be found in the NEPA process followed by the Corps in their review and issuance of dredge and fill permits pursuant to the CWA. (74) After NEPA was passed in 1969, federal agencies and courts began the process of interpreting the broad language of the statute. First, NEPA was considered to apply not only to federal projects, but also to state and local government as well as private projects that included significant federal participation or required a federal permit. (75) Next, NEPA was found to be a procedural statute, not a statute of substance. This meant the federal government had to properly analyze the environmental impacts of a proposed action but did not have to choose the most environmentally friendly or responsible alternative. (76) The Council of Environmental Quality (CEQ) fleshed out detailed NEPA procedures. (77) The CEQ regulations had to confront the problem that the expansive view of federal actions requiring NEPA review would have put a crushing regulatory burden on the federal government. The regulations included the relatively abbreviated Environmental Assessment (EA) process and a Finding of No Significant Impact (FONSI) to help federal agencies more efficiently process what have turned out to be the vast majority of federal environmental actions under NEPA. (78) B. Seeping Analysis Issue: Corps Regulation The Corps faced a specific problem in its administration of dredge and fill permits. In some situations the permit was only a part of a larger non-federal project, raising the question of whether the Corps would need to provide NEPA review for the whole project, not just the area of its expertise. Expanding the scope of such projects would add to the seriousness of the project's impacts and would undoubtedly lead to more complex and costly EISs instead of the simpler EA and FONSI combination. (79) This issue is known as the "small handle" problem. (80) Without guidance in its own NEPA regulations, (81) the NEPA statute, or the CEQ regulations, the Corps's decision to limit its scope of review to only the part of the project over which it had direct jurisdiction was sustained in two 1980 Circuit Court decisions. In Winnebago Tribe of Nebraska v. Ray (Whmebago) (82) the Eighth Circuit affirmed the Corps's decision to analyze the 1.25 miles of a 67-mile long non-federal power line that crossed navigable waters. (83) The court developed its own three-part test, judging the extent of factual control by the degree of agency discretion, the amount of federal financial aid, and the overall federal involvement in the project. (84) In Winnebago, these factors were not sufficient enough to require a Corps NEPA analysis of the entire project. (85) That same year the Fifth Circuit came to a similar conclusion in Save The Bay, Inc. v. United States Army Corps of Engineers (Save The Bay), (85) a dispute over a Corps decision to limit review of a wastewater discharge pipeline associated with a large manufacturing facility on the Mississippi Gulf Coast to the impacts of only the outfall pipe, not the entire facility. (87) The court did not set up its own test, but made its determination that NEPA analysis was not necessary for the entire project based upon the fact that the plant operator had another optional method of discharge which did not require a Corps permit, and thus that the permit was not a necessary condition precedent to plant operation. (88) Based upon these two decisions, in an atmosphere of "regulatory reform" during the Reagan Presidency, the Corps proposed to put these decisions into its regulations. (89) After a regulatory scuffle with the Environmental Protection Agency (EPA) and mediation by CEQ, the Corps finalized its new regulation on the "small handle" problem. (90) The regulation, entitled "Scope of Analysis," covers situations where the activity requiring a Corps permit "is merely one component of a larger project...." (91) The scope of the resulting NEPA document will address the impacts of "the specific activity requiring a ... permit and those portions of the entire project over which the district engineer has sufficient control and responsibility to warrant Federal review." (92) The test of "control and responsibility" is whether "the Federal involvement is sufficient to turn an essentially private action into a Federal action." (93) The regulation goes on to include four non-exclusive typical factors to measure the control and responsibility test. (94) These factors are as follows: 1) whether the project is merely a link in a corridor type project 2) whether aspects of the upland facility near the regulated activity affect the regulated activity 3) the extent of Corps jurisdiction over the project and 4) the level of cumulative federal control. (95) The regulations go on to give several examples, two of which mimic the factual situations in Winnebago and Save The Bay. (96) Of particular note in Save Our Sonoran, one of the examples states that, ordinarily, the control and responsibility for a dredge and fill permit "would extend [only] to the portions of the project to be located on the permitted fill." (97) Extension of NEPA review to the entire project would occur "only if ... the regulated activities, and those activities involving ... other federal agencies, comprise a substantial portion of the overall project." (98) C. Sylvester's Validation of Corps Regulation The Corps's new regulation was soon tested under the Chevron test (99) and upheld as a permissible interpretation of NEPA subject to deference by the Ninth Circuit in Sylvester. (100) The Corps was reviewing a wetland fill permit for a golf course as part of an all-season resort at Squaw Valley, California. (101) Pursuant to its regulations, the Corps limited its jurisdiction and EA to the wetlands and golf course, excluding the resort village and downhill skiing facilities. (102) The plaintiff challenged the Corps's refusal to consider the impacts of the entire resort on the neighboring uplands. (103) The plaintiff argued that the Corps' new regulation was not entitled to Chevron deference because it was outside its administrative expertise, contrary to the NEPA statute, in conflict with the Corps' previous regulation, and in conflict with CEQ regulations. (104) The court dismissed these concerns and, in doing so, dismissed the often used simile of environmental impacts as "ripples following the casting of a stone into a pool" as "beguiling, but useless as a standard." (105) The court stated that a "better image is that of scattered bits of a broken chain, some segments of which contain numerous links, while others have only one or two. Each segment stands alone, but each link within each segment does not." (106) The wetlands and its golf course were links within a segment of the chain, the rest of the resort consisted of links separated from these two. (107) The Sylvester decision was criticized by one commentator as neither a "particular[ly] compelling" metaphor, nor showing a "grasp of the purpose of NEPA." (108) Another commentator criticized the decision for its failure to give a better definition to its modification of the basic "but for" causation test expressed by the "ripples in a pond" analogy. (109) These commentators, and others, have criticized the Corps regulation generally as a violation of the broad spirit of NEPA, expressed in the broad hortatory statutory statements of federal agency responsibility. (110) In contrast, another commentator applauded the Ninth Circuit for refusing to burden the Corps with production of a costly, voluminous EIS covering environmental responsibilities with which they have no expertise. (111) And a final group of commentators applauded the court for not trapping a private permit applicant within a NEPA-inspired web of bureaucratic entanglement prompted by litigious adversaries. (112) D. Wetlands Action Network." Defining the Corps' Regulation The general acceptance of the Corps's regulations on scope of analysis has led to Chevron deference. This shifts judicial review to whether the Corps's specific application of the rules in the case at hand is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." (113) The lack of clarity in the Corps's regulation is magnified because even the general criteria given in the regulations are merely "typical factors" and are not exclusive. (114) Thus courts have been reduced to "making ad hoc subjective judgments about how much federal participation is needed to federalize a nonfederal project." (115) The Ninth Circuit's decision in Wetlands Action Network (116) is important not only for the mandatory authority it provided to the Save Our Sonoran I and II judges, but also for its apparent resolution to the issue of Corps actions under its regulations to limit the scope of review for dredge and fill permits. (117) Wetlands Action Network concerned urbanization of the last large undeveloped parcel in western Los Angeles County, a 1,000 plus-acre parcel known as the Playa Vista property. (118) The property contained 186 acres of wetlands, of which the property owner proposed to dredge and fill 21.4 acres. (119) The mitigation scheme approved by the Corps included creation of new wetlands and improvement of degraded wetlands. (120) Through a complex series of maneuvers, the Corps asserted jurisdiction over only the portion of the project containing the wetlands, not the entire project. (121) The district court granted summary judgment to the plaintiff on its NEPA challenge which, among other claims, asserted that the Corps should have reviewed impacts of the entire project in its EA. (122) On appeal, the Ninth Circuit reversed the lower court's determination of all the plaintiffs NEPA claims. (123) Regarding the scope of the analysis issue, the court determined that the Corps acted in conformance with its regulations in limiting review to the wetlands portion of the property. (124) Although not explicitly stating so, the Ninth Circuit focused its analysis of the Corps's action upon only one of the four "typical factors" within the Corps regulations: whether the upland facility near the regulated activity affects the location of the regulated activity. (125) The court admitted that the interrelationship of federal and non-federal activity "will generally require a careful analysis of the facts and circumstances surrounding the relationship." (126) The Ninth Circuit then went on to give five reasons why the project scope for the wetlands permit did not need to encompass the entire project: 1) the project is typical of large development projects with a small wetland component, and one of the examples in the Corps's regulation specifically exempts such projects; (127) 2) neither the Corps nor any other federal agency had jurisdiction over any other portion of the project nor financed any other portion of the project; (128) 3) local land use and zoning regulations, not federal regulations, governed the project design; (129) 4) the project was subject to extensive state environmental review; (130) and 5) the project could proceed, and in fact was proceeding, in the upland portions without issuance of the permit. (131) The decision in Wetlands Action Network seemed to be a fairly definitive statement from the Ninth Circuit on the issue of scope of review in Corps permitting, reinforcing the Sylvester decision twelve years earlier. One commentator bemoaned the effect of the decision on the continuing erosion of wetland protection in the United States, ignoring the fact that the project should result in a net increase of wetlands quantity and quality. (132) But two years later, in Save Our Sonoran I, the Arizona district court took an arguably similar factual situation and came to a very different conclusion. (133) Four years after Wetlands Action Network, another Ninth Circuit panel also came to a different conclusion, upholding the district court's Save Our Sonoran I decision. (134) E. The Save Our Sonoran Surprise To illustrate the surprising nature of the two Save Our Sonoran decisions, a comparison of the site in controversy with the Playa Vista site at issue in Wetlands Action Network is appropriate. Both were privately owned properties slated for urban development, although Playa Vista was an "infill" urban parcel and the Lone Mountain site was at the edge of (but not beyond) the Phoenix Metropolitan Area. (135) Playa Vista contained 1,087 acres, (136) Lone Mountain 608 acres. Both contained a small area percentage classified as navigable waters, Playa Vista 186 acres (seventeen percent of the site), Lone Mountain thirty-one acres (five percent of the site). (137) Both are located in desert climates, although the Sonoran desert climate of the Lone Mountain property is drier than the coastally influenced Playa Vista property. (138) Yet the Ninth Circuit and the district court discerned a difference. In looking at a map of the Lone Mountain site, the district court determined that the thirty-one acres of washes, jurisdictional waters of the United States, ran through the property "like capillaries through tissue." (139) The district court also dismissed the Corps' claim that the limited review was justified because the washes were "merely a link in a corridor-type project" by countering that "the washes run through the property the way lines run through graph paper." (140) Nine distinct washes run east-to-west through the project site. Both courts then analogized the case not to Wetlands Action Network, but instead to a district court case from the Southern District of Texas, Stewart v. Ports, (141) decided in 1998. The court in Stewart faced a proposal for a golf course, located on 200 acres in Lake Jackson, Texas. (142) The land was part of a large bottomland forest, and was found to contain twenty-four acres of jurisdictional wetlands among the trees, scattered in small areas throughout the site. (143) The golf course design impacted two acres. (144) The Corps, in issuing its EA and FONSI, disclaimed jurisdiction over the forested uplands. (145) The Stewart court found the Corps's decision to be "irrational" and "asinine on its face." (146) The Stewart court came to the conclusion that the wetlands and the forest were inseparable because of the scattered nature of the wetlands among the trees. (147) The Stewart court distinguished the inseparable nature of the wetlands and uplands in this situation from the distinct separation between the golf course and the rest of the resort in Sylvester, and noted that other cited cases upholding a limited scope of analysis also involved much more distinct project boundaries between permit and non-permit areas. (148) When adding in the Corps's failure to evaluate cumulative impacts on the uplands forest, regardless of jurisdictional scope, the court granted the plaintiffs' summary judgment on this motion and remanded the matter back to the Corps for further consideration. (149) The Save Our Sonoran I court similarly found that the dry washes and the surrounding desert uplands on the Lone Mountain site were as inseparable as capillaries through tissue. (150) F. Criticism of the Save Our Sonoran Analysis The problem with the Arizona district court and Ninth Circuit analyses in Save Our Sonoran I and II is that the similarities between the Lone Mountain property and the Playa Vista property in Wetlands Action Network are stronger than the similarities between the Lone Mountain property and the golf course in Stewart. The Lone Mountain property, at 608 acres, is three times the size of the proposed Lake Jackson golf course in Stewart. (151) The characteristics of the Lone Mountain site, a proposed 794-unit suburban gated residential community with roads and necessary utilities within the Phoenix Metropolitan Area, are closer to the large-scale mixed-use Playa Vista development than a single-use golf course located in a rural area outside the city of Lake Jackson's boundaries. (152) Comparison of the Stewart case to the factual situation in Sylvester also has implications for the Lone Mountain analogy. Both cases involved golf courses, but the Sylvester decision involved much more--an all-season resort village with a skiing area. (153) Stewart, in contrast, involved only a golf course. (154) Viewed in this light, the Corps's decision to limit review of the Lake Jackson golf course in Stewart would be analogous to review of only the actual wetlands affected within the Squaw Valley golf course in Sylvester, a decision the Corps did not make. Thus, these two decisions are reconcilable. But the Lone Mountain project, a large, gated desert residential community with associated roads and utilities, is more analogous in size and scope to the entire Squaw Valley proposal in Sylvester, not just the golf course. In addition to the size differential, a large-scale planned residential community such as the Lone Mountain project provides, in addition to the residences, community recreation facilities, public infrastructure, natural open space, and other amenities desirable for suburban residential lifestyles. (155) A golf course, in contrast, is a single-purpose recreational facility, similar in nature to the community recreational aspects of a planned residential community such as the Lone Mountain project. Thus the Lone Mountain decision is also more analogous to the Sylvester fact situation, in which the Corps's review was appropriately limited to a portion of a larger project, than to the Stewart fact situation, in which the Corps's review should not have been limited to only a portion of the golf course. And if the Lone Mountain property is more similar to the Playa Vista property, the two Save Our Sonoran courts' disregard for the reasoning behind the Ninth Circuit decision in Wetlands Action Network becomes glaring. In applying the reasons behind the Wetlands Action Network decision to Save Our Sonoran, three of the five factors are patently similar: 1) Lone Mountain is also a large development project with a small jurisdictional waters component, for which a specific example in the Corps' regulations provides an exemption; (156) 2) no other Federal involvement in the project was necessary; (157) and 3) local land use regulations governed project design. A fourth factor, whether the project was subjected to state environmental review, is one clear difference since Arizona has no state environmental protection act equivalent to the California Environmental Quality Act. (158) Finally, and most importantly, the district court made a factual finding that "the washes are a dominant feature of the land and no development of the property could occur without affecting the washes." (159) The court relied on the Corps's statement in the EA that "a no action alternative (i.e., no Corps's permit issued) would not allow the site to be developed in a manner that would accomplish the applicant's project purpose," (160) a residential subdivision. The Ninth Circuit affirmed the district court's rationale. (161) A review of the project map, however, does not support the district court's conclusion. The nine desert washes running through the property are more or less parallel. (162) It would be theoretically possible, though certainly not desirable from a traffic circulation standpoint, to build roads running east to west across the property without crossing a drainage course, except for the perimeter roads mandated by the City of Phoenix Transportation Plan. (163) It would also be possible, and in fact would be permitted under the applicable Phoenix zoning ordinance standards, to cluster the same number of houses onto a smaller area, thus greatly reducing the impacts to the washes, while maintaining the same number or perhaps a slightly lesser number of overall dwelling units. (164) The district court's contention that "no development" could occur on the site without impacting the washes is clearly erroneous, except for the city mandated perimeter roads. The district court's and Ninth Circuit's use of the Corps's own words in the EA against them also directly contradicts a key point from Wetlands Action Network. In Wetlands Action Network the Ninth Circuit noted that the district court before it had correctly determined that "the project would not be able to proceed as planned without the permit." (165) The court noted: The conclusion that the district court drew from these findings, however, is in error. The linkage that the district court found between the permitted activity and the specific project planned is the type of "interdependence" that is found in any situation where a developer seeks to fill a wetland as part of a large development project. If this type of connection alone were sufficient to require a finding that an entire project falls within the purview of the Corps' jurisdiction, the Corps would have jurisdiction over all such projects including those which the Corps' regulations cite as examples of situations in which the Corps would not have jurisdiction over the whole project. (166) Both Save Our Sonoran courts ignored this important finding in their decisions. A large-scale development project consists of many inter-related factors, both opportunities and constraints, which must be fitted together as best as possible to provide an optimum result. (167) Preservation of a desert wash may result in inefficient road access, but optimal access might conversely accentuate flood hazards and impact desert wildlife (perhaps an economic value to the developer as well as a national interest in reducing water pollution). A developer or planner must repeat this analysis for many variable opportunities and constraints--rarely does one factor loom so large as to dominate and even eclipse the other factors. The Save Our Sonoran courts clearly believed that the factor of the desert washes eclipsed all other factors involved in the development of the Lone Mountain property. Given the fact that the desert washes directly impacted only five percent of the property, this conclusion is questionable. If any development could have occurred on the property without significantly impacting the washes, the courts should have given deference to the Corps' own regulation on the subject. (168) IV. CLEAN WATER ACT ANALYSIS A. Introduction Neither the District Court for Arizona nor the Ninth Circuit Court of Appeals questioned a basic assumption underlying this case--that the Corps had jurisdiction over desert arroyos and gullies. Prior to the Supreme Court's SWANCC (169) decision, such an assumption would have been safe. But the SWANCC decision, along with the Supreme Court's two landmark Commerce Clause cases, Lopez (170) and Morrison, (171) suggest a re-analysis of this issue as it relates to the Lone Mountain property. However, without further guidance from the Supreme Court, the post-SWANCC analyses of arroyos in Save Our Sonoran are probably jurisdictional. B Pre-SWANCC The CWA applies to "the discharge of dredged or fill material into ... navigable waters at specified disposal sites." (172) Navigable waters are defined as "the waters of the United States." (173) Waters of the United States are defined by implementing federal regulations as including "[a]ll other waters ... such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce...." (174) The regulations go on to identify, as waters of the United States, "tributaries of waters identified in [the earlier parts of] this section." (175) The desert arroyos on the Lone Mountain site drain water, when they have water, into the Gila River system, itself tributary to the Colorado River system. (176) The plain language of these regulations would qualify the desert arroyos as either intermittent streams, or alternatively, as tributaries to other intermittent streams. Until SWANCC was decided in 2001, most cases interpreting the CWA and its implementing regulations favored a broad interpretation of federal authority over various waters under the Act. (177) A typical example, most analogous to the Lone Mountain site, was decided by the Tenth Circuit in Quivira Mining Company v. United States Environmental Protection Agency (Quivira). (178) Quivira involved the EPA's assertion of jurisdiction to regulate the discharge from uranium milling and mining facilities into two desert arroyos in New Mexico. (179) The court found that both arroyos were not navigable-in-fact because "surface flow [only] occasionally occurs." (180) But the hydrological connection of these waters to downstream navigable-in-fact waters of the Rio Grande river system, (181) along with the percolation of waters into underground aquifers, rendered them waters of the United States subject to regulation. (182) The washes through the Lone Mountain site, with similar occasional surface flows and probable groundwater percolation into a navigable-in-fact system would similarly qualify for CWA jurisdiction. C. SWANCC Decision The SWANCC decision reversed this trend toward broad interpretation by finding an outer limit to the jurisdiction of the federal government over navigable waters. The Supreme Court held that the Corps's assertion of permitting authority over dredging and filling of isolated ponds in an abandoned northern Illinois gravel pit stretched the definition of navigable waters to the point where the term "navigable" had no effect whatsoever. (183) Therefore, the court held that the Corps had no jurisdiction to require a fill permit under the CWA. (184) The specific target of the Supreme Court's review was the Corps's Migratory Bird Rule, (185) which the Corps had promulgated without the notice and comment procedures provided in the APA for formal rulemaking. (186) The rule "clarified" the reach of the Corps's jurisdiction as stated in its regulations by extending its jurisdiction to intrastate waters which are used as habitat by migratory birds and endangered species. (187) The Supreme Court found no statutory justification for the rule, either in the actual language of the CWA or the legislative history of the Act. (188) The court specifically declined to further extend its finding in United States v. Riverside Bayview Homes (Riverside Bayview) (189)--that CWA jurisdiction included wetlands adjacent to navigable waters--to isolated, intrastate ponds as were found in the SWANCC situation. (190) The SWANCC Court then went even further and called into question all of the Corps's regulations that "invoke the outer limits of Congress' power" without "a clear indication that Congress intended that result." (191) The Court invoked its two recent landmark Commerce Clause decisions, Morrison and Lopez, to warn that "[t]hese are significant constitutional questions raised by the [Corps's] application of their regulations." (192) The clear import of this decision, recognized by numerous commentators, is that the precise location of the outer limits of Commerce Clause authority under the CWA is now a subject for serious discussion and controversy. (193) D. Fallout from SWANCC Since SWANCC, courts reviewing challenges to Corps' CWA jurisdiction have had to determine whether SWANC's finding is limited to its extreme factual circumstances, or whether SWANCC sets an outer limit of jurisdiction at the Riverside Bayview finding regarding wetlands adjacent to navigable waters. Under the latter interpretation, any Corps's assertion of jurisdiction beyond the Riverside Bayview finding should be rejected, or at least be subject to skeptical judicial review. Judicial reaction to the SWANCC decision among the lower federal courts has been generally to narrow the holding, with only one significant exception. (194) As a starting point, it would be erroneous to assume that the SWANCC exclusion applies only to waters which are somehow truly isolated from navigable waters. Such an analysis founders on the fact that the hydrological cycle ensures no waters on the planet are truly isolated from navigable waters. (195) Even excluding issues of evaporation and precipitation, almost all of the Earth's water eventually flows through navigable fresh water into the ocean. (196) Water in the ponds in Northern Cook County at issue in SWANCC will eventually drain, through surface or ground water flows, into either the Mississippi River system or Lake Michigan. (197) Perhaps this reasoning could apply to an isolated body of water in a closed intrastate desert Great Basin system, but it cannot apply to water within any watershed eventually flowing into an ocean. After disposing of tests requiring true and complete hydrological isolation, or isolation from surface and groundwater flows into the oceans, two post-SWANCC questions impact CWA jurisdictional analysis of the desert washes on the Lone Mountain property. First, do the washes qualify because they are connected to navigable waters via groundwater flows? And second, do the washes qualify as tributaries of navigable waters? E. SWANCC and Groundwater As stated by Robin Kundis Craig in a recent article, "the issue of whether hydrologically connected groundwater is subject to CWA jurisdiction predates SWANCC." (198) Federal courts were split between the theory that the broad mandate of the CWA authorized regulation of discharges into groundwater, and the counter-argument that the legislative history and federalist statutory framework of the CWA precluded any finding that groundwater could be "waters of the United States." (199) As Craig notes, this split in authority has continued in post-SWANCC decisions, although she argues that the implications of the Supreme Court's 2001 decision spell the end of CWA jurisdiction over groundwater. (200) The Fifth Circuit has most clearly reinforced the arguments of those who reject CWA jurisdiction over groundwater, using holdings from SWANCC to buttress the previous statutory arguments. In Rice v. Harken Exploration Company (Rice v. Harken) (201) the court narrowed the scope of federal authority in a ease involving the Oil Pollution Act of 1990 (OPA). (202) While a different statute, the OPA contains the same statutory definition of "navigable waters" as the CWA. (203) The Fifth Circuit analogized the OPA to the CWA in its analysis, and determined that the spillage of oil onto dry land did not subject the polluter to the rigors of the OPA, despite potential contamination of a groundwater aquifer and an intermittent stream. The Fifth Circuit cited substantial pre-SWANCC authority that the CWA definition of navigable water did not include ground water, both from its own Circuit and from the Seventh Circuit. (204) In reviewing the surface water contamination claim, the court determined that any contamination would have migrated to surface waters via groundwater flows. (205) Because groundwater is not subject to OPA or CWA jurisdiction, and because the OPA and CWA both apply to discharges "into or upon the navigable waters," (206) the discharges in question were not subject to federal jurisdiction. (207) However, the court did not form an opinion as to whether Big Creek, an intermittent stream on the dry West Texas Panhandle, is a "navigable water" subject to CWA or OPA jurisdiction, since its holding rejecting federal jurisdiction over groundwater precluded the need to do so. (208) Meanwhile, in the Ninth Circuit, two district court cases have kept alive the doctrine that groundwater can remain subject to CWA jurisdiction. (209) Both found that discharges into ground water are subject to CWA permitting requirements if those discharges reach navigable surface waters through the ground water aquifer. (210) In Idaho Rural Council v. Bosma, (211) the District Court for the District of Idaho found that a dairy's discharges that reached navigable waters after bubbling up into two springs were subject to CWA jurisdiction. (212) The court weighed the conflicting authority from other circuits and agreed with the interpretation allowing broad jurisdiction, finding that the broad purposes of the CWA justified the regulation of discharges into groundwater when the groundwater is "hydrologically connected to surface waters that are themselves waters of the United States." (213) Interestingly, Bosma found an alternative basis for CWA jurisdiction: the polluter also discharged surface runoff into navigable rivers or their tributaries. (214) The court did not make discharges into groundwater the sole reason for asserting jurisdiction. (215) The court admitted that there existed contrary persuasive case law, which both pre-dates and post-dates SWANCC. (216) In this light, Robin Kundis Craig suggests that groundwater as a statutory "water of the United States" cannot survive after SWANCC, given "the tenuous connections to navigability and the potential interference with state water quality and water quantity regulatory rights." (217) The desert arroyos on the Lone Mountain property, when they infrequently convey water, undoubtedly contribute to ground water aquifers in the Phoenix area, which are in turn hydrologically connected to the Gila River and Colorado River surface water systems. (218) Groundwater is a much used source of water for both agricultural and municipal purposes in the Arizona desert. (219) But, as Craig noted, the outlook for assertion of CWA jurisdiction, based upon discharges into groundwater, is bleak, because of factors including the tenuous connection to CWA navigability. (220) Also, the Lone Mountain factual situation, which involves alteration of watercourses with fill, does not indicate a serious potential for discharges that would pollute groundwater. (221) Therefore, the logic behind the court's decision in Bosma, where groundwater is a CWA navigable water because it carries discharges from their point of origin to a navigable waterway, does not apply. Accordingly, the Corps' assertion of CWA jurisdiction on the Lone Mountain property, if based solely upon groundwater connections to navigable waters, would fail. F. SWANCC and Tributaries to Navigable Waters The Corps's implementing federal regulations clearly define tributaries as "waters of the United States," subject to CWA jurisdiction. (222) The most common use of the term "tributary" in terms of water flow refers to watercourses carrying flows toward a larger watercourse, which may in turn be tributary to another larger watercourse, and so on until the last watercourse flows into the ocean or into an inland sea or salt flat. (223) The SWANCC decision, applying as it did to an isolated pond, not a watercourse, did not address the issue of whether the implementing regulation defining jurisdictional CWA waters as "tributaries of waters identified in [the earlier parts of] this section" was valid. (224) The SWANCC decision unleashed conflicting responses on the issue of what constitutes a tributary to a navigable water, with most courts allowing generous jurisdiction over tributaries, and a few being stingier in their analysis. (225) The leading post-SWANCC case in the Ninth Circuit is Headwaters v. Talent Irrigation District (Talent). (226) Decided two months after the SWANCC decision, (227) Talent exemplifies the clearly emerging majority view among federal courts to date that "any surface water connection to waters that are navigable in the traditional sense--however intermittent, convoluted, or human-made the connection might be--is sufficient to confer CWA jurisdiction over a water body." (228) In Talent, the Ninth Circuit reviewed a dispute over the application of an aquatic herbicide to the defendant's irrigation canals. (229) While the canals are used for irrigation, the area in southern Oregon where they are located can be classified as having a temperate climate, different from the Sonoran Desert climate of the Lone Mountain property. (230) In reviewing an EPA regulation paralleling the Corps's regulation, (231) the Ninth Circuit determined that the irrigation canals exchanged water with "a number of natural streams and at least one lake," and thus were tributaries to navigable waters covered under the regulation. (232) The court distinguished the situation from SWANCC because the canals were not "isolated waters," such as the ponds under controversy in SWANCC. (233) The court noted that "[e]ven tributaries that flow intermittently are waters of the United States." (234) In one subsequent decision, the Ninth Circuit has directly followed the tributary analysis first expounded in Talent. In United States v. Phillips (235) the Ninth Circuit unequivocally rejected a claim by a Montana streamside property owner that his diversion of a creek into a pond system and its subsequent pollution with mine tailings and sediment did not constitute a CWA violation because the government had no authority over the creek. (236) The court held that, because the creek in question was tributary to a navigable water, it was clearly under CWA jurisdiction. (237) Another interesting analysis upholding broad federal jurisdiction under the CWA came from the Fourth Circuit in United States v. Deaton. (238) Deaton involved an enforcement action in Maryland against a property owner who filled wetlands draining into a roadside ditch, the waters from which eventually drained into Chesapeake Bay via the Wicomico River. (239) The issue was whether the Corps had jurisdiction over the roadside ditch, and the court quickly turned from an analysis of the specific regulation to a determination of whether the Corps had constitutional authority to regulate discharges into the ditch pursuant to the Commerce Clause. Using the Supreme Court's analysis of categories of Commerce Clause power, the Fourth Circuit determined that federal authority under the CWA was authority over the channels of interstate commerce, rather than authority over activities having a substantial relation to interstate commerce. (240) The court then noted that federal authority over channels of interstate commerce was broad and not constrained to activities of an economic nature. (241) Therefore, the Fourth Circuit found that the Corps had CWA jurisdiction over non-navigable tributaries of navigable waterways, such as the Deaton's roadside ditch. (242) A few district courts have questioned whether any surface water connection justifies establishment of CWA jurisdiction over a tributary. (243) After some of these decisions were directly reversed by their respective circuits, (244) however, the one remaining decision with some argumentative force comes from the New Jersey District Court in FD&P Enterprises v. United States Army Corps of Engineers (FD&P). (245) The district court in FD&P, while denying summary judgment to the plaintiff on the grounds that the Corps had made a case for jurisdiction, stated that "in light of [SWANCC] it is the view of this court that the hydrological connection test is no longer the valid mode of analysis.... [i]t is the significant nexus between the wetlands and navigable waters that must inform our reading of the CWA.... [A] significant nexus must constitute more than a mere "'hydrological connection.'" (246) The "tributary" analysis from the Corps's implementing regulations will provide the decisive answer to the question of navigable waters on the Lone Mountain site. (247) SWANCC involved an isolated pond, not a watercourse. (248) Subsequent case law, notably in Deaton and Talent, clearly provides that tributaries, ditches, or irrigation canals whose waters eventually flow into navigable waters are subject to CWA jurisdiction. (249) While the ditches and irrigation canals in Deaton and Talent, and Fred Burr Creek in Phillips, were all generally perennial streams, the courts, as exemplified by the Ninth Circuit in Talent, have included intermittent surface water connections in their definitions upholding CWA jurisdiction. (250) Under this test, the decision of the Tenth Circuit in Quivira, also involving desert arroyos and washes, would most likely be upheld even in a post-SWANCC environment. (251) But the Quivira arroyos, while intermittent, were also located in the mountains of New Mexico, where at least some snowmelt flows are expected. (252) In contrast, the arroyos and washes on the Lone Mountain site are located at a much lower elevation, in an even drier climate, and can be expected to carry water as infrequently as a few hours per year. (253) Nonetheless, the post-SWANCC case law has clearly found that an intermittent watercourse is subject to CWA jurisdiction as a tributary to navigable waters. Therefore, while the Corps' jurisdiction is at its outer edge in this case, any challenge to it would most likely be turned back in the Ninth Circuit, and in the other circuits as well. That is not to say that a challenge to Corps' authority in a case such as this might not prove fruitful if the Supreme Court chose to grant certiorari. In retrospect, the SWANCC case was the result of the Supreme Court majority's desire to send another message about the outer bounds of federal authority by raising constitutional questions about the Commerce Clause, although not as directly as it did in Lopez and Morrison. The SWANCC factual situation, at the extreme edge of the CWA, involving a rule which had not even undergone formal rulemaking procedures under the APA, was an ideal vehicle for the court to send its message. (254) An extreme factual situation involving intermittent watercourses such as those on the Lone Mountain property might provide a similar opportunity for a Supreme Court majority, especially if the logic the New Jersey District Court used in FD&P is considered. But the risks and expense may be too great for a potential litigant such as Lone Mountain LLC, which clearly expected reasonableness from the Corps in their review process. It may be many years before another SWANCC-type case makes its way to the United States Supreme Court, and until then, the desert washes on the Lone Mountain property are best classified as waters of the United States, subject to CWA jurisdiction. V. SAVE OUR SONORAN AND FEDERALISM The Save Our Sonoran I and II decisions will undoubtedly be hailed by some commentators as a return to a comprehensive interpretation of federal agency responsibility under NEPA, just as commentators hailed the Ninth Circuit's Talent decision as at least a partial restoration of the pre-SWANCC CWA regime. (255) Government agencies will be dismayed at the expanded NEPA responsibilities in areas in which they lack expertise, and business interests will bemoan increased environmental red tape. But the decision swims against two important trends in American politics and jurisprudence: a movement away from expansive federal involvement in environmental issues, and a movement toward reinvigorating the notions of federalism in limiting broad federal authority. The movement away from expansive federal involvement is illustrated in many areas of NEPA implementation, and in other environmental statutes as well, but the retreat of the Corps from its CWA scoping analysis is an excellent example. (256) The reasons for the Corps' retreat from expansive federalization of entire projects--the practical realities and budgetary constraints of agency review, and the wish to minimize bureaucratic red tape--are as valid today (257) as they were during the Reagan Presidency in the 1980s. (258) Similarly, after the EPA and the Corps initially took a very narrow view of the 2001 Supreme Court SWANCC holding, the agencies have since acknowledged that a broader reading of the decision, removing jurisdiction over most, if not all, isolated intrastate waters, is more appropriate. (259) The reinvigoration of federalism under the Supreme Court's recent jurisprudence has been the second important trend. The limits on the federal commerce clause power thundering from the bench in Lopez and Morrison have been mirrored by a reinvigoration of the United States Constitution's Tenth Amendment. (260) The Supreme Court described the basic relationship of the Commerce Clause and the Tenth Amendment as "mirror images of each other." (261) The Supreme Court in SWANCC, after invalidating the migratory bird rule, sent warnings to Congress and federal agencies; "where an administrative interpretation of a statute invokes the outer limits of Congress's power, we expect a clear indication that Congress intended that result"; (262) "this concern is heightened when the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power"; (263) and "the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited." (264) Thus, the Supreme Court announced that its reinvigorated concepts of federalism apply to environmental statutes that overstep the boundaries of federal Commerce Clause authority. VI. A NEW "SMALL HANDLE" PROBLEM Combining the CWA jurisdictional issues apparent on the Lone Mountain property with the expanse of NEPA authority approved by the Ninth Circuit in Save Our Sonoran II creates a new type of "small handle" problem, only this time it is constitutional and statutory in nature. A tenuous assertion of jurisdictional authority over the intermittent desert washes on the Lone Mountain property was magnified, via NEPA, into a full-blown federal environmental review of the entire project. The question is whether two individually constitutional statutes, acting together, can create an unconstitutional federal encroachment into a matter that should be left to the State of Arizona and its local governmental subdivisions. The situation is the proverbial "foot in the door." Constitutional jurisprudence is devoid of the idea that two statutes, individually applied in a constitutional manner, can in tandem produce an unconstitutional result. The constitutionality of the jurisdictional assertion of "waters of the United States" under the CWA has been thrown into turmoil by the SWANCC decision, turmoil as yet unresolved. (265) But the outcome in this case raises serious questions for NEPA jurisprudence, based upon the three warnings issued by the Supreme Court in SWANCC. (266) These warnings deserve a closer look. First, where an administrative interpretation of a statute invokes the outer limits of Congress's power, it must be clear that Congress intended this result. NEPA is hill of ringing generalities, which have lead many commentators to call for renewed federal involvement in substantively protecting our nation's environmental values. (267) But the statute is virtually devoid of specifics, leaving the details to implementing regulations and the courts. (268) In particular, did Congress intend the statute to apply only to federal projects, or also to projects of a primarily local character where a federal permit of some sort was necessary? (269) Courts have spent almost thirty years wrangling with this problem, and have come to a general consensus that some dividing line exists between primarily local projects with a federal aspect, and projects where the level of federal involvement is sufficient to "federalize" the project. Therefore, NEPA has long been interpreted as avoiding the outer limits of federal authority. Second, the Supreme Court admonished courts to be wary of federal encroachment upon state power. In SWANCC, the Court describes power over land and water use as a traditional and primary power, and states that "[r]egulation of land use [is] a function traditionally performed by local governments." (270) Short of constitutional issues, land use law remains an endeavor of state and local government. This factor was determinative in the Supreme Court's Lopez decision striking down a law regulating gun possession near public schools. The Supreme Court's judgment classifying land use law as a local concern in SWANCC would seem to apply to disputes over development of the Lone Mountain property as well. Finally, there remains some question whether the Commerce Clause even grants Congress the authority to regulate state and local actions in a situation such as this, should it choose to do so. The SWANCC Court warned that "the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited." (271) There is not yet a definitive answer to this question--the nation must await coming Supreme Court decisions, or perhaps coming changes to the membership of the Supreme Court. But the current Court's decisions in Lopez and Morrison indicate that this Court will not hesitate to strike down federal legislation that exceeds the broad Commerce Clause authority set forth in Article I. (272) Perhaps the best way for the Corps to resolve this particular "small handle" constitutional issue would be for it to amend its regulations. The Corps's NEPA procedures regulations should be amended to add a new "typical factor to be considered in determining whether sufficient control and responsibility exists." (273) That factor would be the extent to which the Corps's assertion of jurisdiction is justified by the Commerce Clause of the United States Constitution. A borderline or tenuous claim of jurisdiction would justify a more limited scope of analysis, thus avoiding the constitutional "small handle" problem raised by Save Our Sonoran I and II. VII. CONCLUSION The surprising Ninth Circuit decision in Save Our Sonora II upholding the district court's decision in the eponymous case can be classified as a check on the seemingly inexorable march to reduce the reach of NEPA's requirements for federal agency responsibilities. But in so doing, the court departed from the precedent set by Wetlands Action Network and Sylvester. The court inappropriately distinguished Save Our Sonoran from both Wetlands Action Network and a specific example contained within the Corps' administrative regulations implementing NEPA. By taking these actions in a situation in which the constitutional foundation of CWA jurisdiction was tenuous and questionable, the court created a unique "small handle" problem: where two statutes in tandem created an outcome both constitutionally suspect and factually absurd. Future courts should view the outcome in Save Our Sonoran with suspicion, and agencies should consider revising their administrative regulations to prevent the combination of NEPA and a core statute, such as the CWA, producing a similar result. (1) ARIZONA-SONORA DESERT MUSEUM, A NATURAL HISTORY OF THE SONORAN DESERT 8-9 (Steven J. Phillips & Patricia Wentworth Comus eds., 2000). Despite the lack of water, desert washes contain clearly distinct flora and fauna when compared to the surrounding uplands. Id. (2) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000). (3) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000). (4) Save Our Sonoran, Inc. v. Flowers (Save Our Sonoran I), 227 F. Supp. 2d 1111 (D. Ariz. 2002). (5) Save Our Sonoran, Inc. v. Flowers (Save Our Sonoran II), 381 F.3d 905 (9th Cir. 2004). (6) The Ninth Circuit perhaps inadvertently acknowledged the factual absurdity of applying the CWA to desert washes when it opened the decision as follows: In this appeal, we consider the management of the waterways in Arizona's Sonoran desert. This, of course, inevitably brings to mind the exchange between Claude Rains and Humphrey Bogart in Casablanca (Warner Bros. 1942), which aptly distills this dispute to its essence: Captain Renault: What in heaven's name brought you to Casablanca? Rick: My health. I came to Casablanca for the waters. Captain Renault: The waters? What waters? We're in the desert. Rick: I was misinformed. In our case, it was not Rick Blaine, but the United States Army Corps of Engineers that came to the desert for the waters. Save Our Sonoran II, 381 F.3d at 909. (7) DANIEL R. MANDELKER, NEPA LAW AND LITIGATION [section] 8-19 (1992). (8) Id. (9) See generally Timothy J. Hagerty, Beyond 404: Corps Permitting and the National Environmental Policy Act, in SF92 A.L.I.-ABA COURSE OF STUDY MATERIALS 95 (2001); David Paget, NEPA's "Small Handle" Problem: The Scope of Analysis of Federal Action, in SG026 A.L.I.-ABA COURSE OF STUDY MATERIALS 95 (2001). (10) See, e.g., Wetlands Action Network v. United States Army Corps of Eng'rs (Wetlands Action Network), 222 F.3d 1105, 1110 (9th Cir. 2000) (describing the disputed property as having over 1,000 acres, with 180 acres of wetlands, and 95 being proposed for development with a large-scale mixed-use real estate development). (11) See id. at 1122 (determining that the Corps limitation of its scope of review was not arbitrary and capricious and did not violate NEPA); Sylvester v. United States Army Corps of Eng'rs (Sylvester), 884 F.2d 394, 399 (9th Cir. 1989) (holding that the Corps was entitled to discretion in limiting its environmental analysis to a portion of a larger project). (12) Save Our Sonoran II, 381 F.3d 905, 909 (9th Cir. 2004). (13) See 33 C.F.R. pt. 325, app. B, [section] (7)(b)(3) (2004) (giving examples of projects where the area of CWA jurisdiction and the rest of the project are interdependent, yet the Corps will decline to assert jurisdiction). (14) 531 U.S. 159 (2001). (15) Id. at 172-73. (16) 243 F.3d 526 (9th Cir. 2001). (17) In 2004, the Supreme Court denied writs of certiorari on two circuit court decisions limiting the scope of the SWANCC decision. See United States v. Deaton 332 F.3d 698 (4th Cir. 2003), cert. denied, 541 U.S. 972 (2004); United States v. Rapanos, 339 F.3d 447 (6th Cir. 2003), cert. denied, 541 U.S. 972 (2004). (18) 514 U.S. 549 (1995). (19) 529 U.S. 598 (2000). (20) Save Our Sonoran II, 381 F.3d 905, 909 (9th Cir. 2004). (21) Id. (22) Foster v. Anable, 19 P.3d 630, 632 (Ariz. App. 2001). (23) ARIZ. REV. STAT. [section] 37-132(A)(4) (2004). "Leapfrog development" is defined as the "development of lands in a manner requiring the extension of public facilities and services from their existing terminal point through intervening undeveloped areas that are scheduled for development at a later time...." Id. [section] 37-101(12) (2003). (24) Foster, 19 P.3d at 634. (25) Id. (26) Save our Sonoroan II, 381 F.3d at 909. (27) Id. (28) See generally City of Phoenix, Ariz., General Plan (Dec. 5, 2001), available at http://phoenix.gov/PLANNING/gpindex.html. (29) For a map with zoning overlays, see PHOENIX PLANNING DEPT., CITY OF PHOENIX GENERAL PLAN: A VISION FOR THE FUTURE (2005), available at ffp://www.ci.phoenix.az.us/ pub/PLANNING/gpmap.pdf. (30) For zoning overlays of this property, see PHOENIX PLANNING DEPARTMENT MAP: R11, ftp://www.ci.phoenix.az.us/pub/PLANNING/r11.pdf (May 6, 2004). (31) PHOENIX, ARIZ., ZONING ORDINANCE, ch. 6, [section] 609 (2005) http://library10.municode.com/gateway.dll/1/2?f=templates&fn=default.htm& vid=nextpage:135340&npusername=13534&nppassword=MCC&npac_credentials present=true (last visited July 24, 2005). (32) For general information about Cave Creek, Arizona, see TOWN OF CAVE CREEK, at http://www.cavecreek.org/, (last visited July 24, 2005). For year 2000 census data comparing the Town of Cave Creek with Maricopa County and the State of Arizona, see CENSUS DATA AND MAPS FOR CAVE CREEK, ARIZONA, available at http://www.hometownlocator.com/PlaceDetail.cfm?SCFIPS=04013&City=Cave%20Creek (last visited July 24, 2005). (33) For a map of high growth areas of Phoenix from 1990-99, and future projected growth areas, see City of Phoenix, Ariz., General Plan, Growth Area Element 25 (Dec. 5, 2001) available at ftp://www.ci.phoenix.az.us/pub/PLANNING/gpgrowth.pdf. (34) Id. (35) For a history of the reaction of the emerging environmental movement to post-war suburban sprawl, see ADAM ROME, THE BULLDOZER IN THE COUNTRYSIDE 139-52 (2001). (36) Save Our Sonoran II, 381 F.3d 905, 909 (9th Cir. 2004). (37) ARIZONA-SONORA DESERT MUSEUM, supra note 1, at 12. (38) Id. at 41. (39) Id. at 43-50. (40) Save Our Sonoran II 381 F.3d at 909; 33 C.F.R. [section]328.3 (a)(3) (2000). (41) Save Our Sonoran II, 381 F.3d at 909. (42) Id. (43) Id. (44) Id. at 913. (45) Id. at 909-10. (46) Id. at 910. (47) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000). (48) Save Our Sonoran II, 381 F.3d at 910. (49) Id. (50) Save Our Sonoran I, 227 F. Supp. 2d 1111 (D. Ariz. 2002). (51) Id. at 1113. (52) Id. at 1112. (53) Id. at 1113. (54) 884 F.2d 394 (9th Cir. 1989). (55) 222 F.3d 1105 (9th Cir. 2000). (56) Save Our Sonoran I, 227 F. Supp. 2d 1111, 1114 (D. Ariz. 2002). (57) Id. (58) Id. (59) Id. at 1115. (60) Id. (61) Save Our Sonoran II, 381 F.3d 905, 910 (9th Cir. 2004). (62) Id. at 911-912. (63) Id. at 912 (quoting United States v. Peninsula Communications, Inc., 287 F.3d 832, 839 (9th Cir. 2002)). (64) Id. (quoting Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir. 1998)). (65) Id. at 913. (66) Id. (67) 33 C.F.R. [section] 325, app. B [section] 7(b)(1) (2000). (68) Save our Sonoran II, 381 F.3d at 913. (69) Id. at 914. (70) Id. at 915. (71) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000). (72) See Daniel Dreyfus & Helen Ingrain, The National Environmental Policy Act: A View of Intent and Practice, 16 NAT. RESOURCES J., 243, 247-56 (1976) (discussing the policy impacts and the legislative process in the passage and implementation of NEPA). (73) Id. (74) Federal Water Pollution Control Act, 33 U.S.C. [section] 1344 (2000). (75) MANDELKER, supra note 7, [section] 8-18. (76) See Stryker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227 (1975) (finding that NEPA did not require the Department of Housing and Urban Development to select the most environmentally friendly alternative). (77) 42 U.S.C. [subsection] 4342-4347 (2000). (78) 40 C.F.R. [subsection] 1501.3-1501.4 (2004). (79) See Bradley C. Karkkainen, Toward a Smarter NEPA: Monitoring and Managing Government's Environmental Performance, 102 COLUM. L. REV. 903, 907 (2002) (noting that "[a]gency managers therefore have strong incentives to avoid the NEPA-mandated environmental impact statement whenever possible, which proves to be most of the time"). (80) MANDELKER, supra note 7, at [section] 8-19. (81) Environmental Quality Policy and Procedures for Implementing the National Environmental Policy Act (NEPA), 45 Fed. Reg. 56,760 (Aug. 25, 1980) (codified at 33 C.F.R. pt. 230). (82) 621 F.2d 269 (8th Cir. 1980). (83) Id. at 272. (84) Id. (citing NAACP v. Med. Ctr., Inc., 584 F.2d 619, 629 (3d Cir. 1978)). (85) Id. at 272-73. (86) 610 F.2d 322 (5th Cir. 1980). (87) Id. at 327. (88) Id. (89) See Patrick Parenteau, Small Handles, Big Impacts: When Do Corps Permits Federalize Private Development?, 20 ENVTL. L. 747, 749-52 (1990) (describing the history of the Corps regulations on the "small handle" exception). (90) 33 [section] CFR 33.325 pt. 325, app. B [section] 7(B) (2004). (91) Id. [section] 7(B)(1). (92) Id. (93) Id. [section] 7(B)(2). (94) Id. (95) Id. [section] 7(B)(2)(i)-(iv). (96) Id. [section] 7(B)(3). (97) Id. (98) Id. (99) Chevron U.S.A., Inc. v. National Res. Def. Council, Inc. (Chevron), 467 U.S. 837 (1984). (100) Sylvester, 884 F.2d 394 (9th Cir. 1989). (101) Id. at 396. (102) Id. at 396-97. (103) Id. at 397. (104) Id. at 399-400. (105) Id. at 400. (106) Id. (107) Id. (108) Parenteau, supra note 89, at 755. (109) Matthew Porterfield, Rippling Puddles, Small Handles and Links of Chain: The Scope of Environmental Review for Army Corps of Engineers Permit Decisions, 10 TUL. ENVTL. L.J. 31, 51 (1996). (110) 42 U.S.C. [section] 4332(A), (B) (2000): [A]ll agencies of the federal government shall-- (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment; (B) identify and develop methods and procedures, in consultation with the Council of Environmental Quality ... which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision making along with economic and technical considerations.... (111) See Karkkainen, supra note 79, at 918 (noting that risk averse agency managers will try to avoid litigation by preparing voluminous, costly, and time-consuming EIS documents hundreds of pages in length, or instead avoid the EIS process by preparing a less costly and time-consuming EA and FONSI). (112) See David J. Hayes & James A. Hourihan, NEPA Requirements for Private Projects, 13 B.C. ENVTL. AFF. L. REV. 61, 70 (1985) (decrying the misuse of NEPA by economic competitors to delay or kill a project subject to the statute); see also Jeffery A. Berger, False Promises: NEPA's Role in Airport Expansions and the Streamlining of the Environmental Review Process, 18 J. ENVTL. L. & LITIG. 279, 317-18 (2003) (discussing attempts by the George W. Bush administration and Congress to "streamline" the NEPA process for airport expansions). (113) Administrative Procedure Act, 5 U.S.C. [section] 706(2)(A) (2000). (114) 33 C.F.R. pt. 325, app. B [section] (7)(b)(2)(iv) (2004). (115) Parenteau, supra note 89, at 748 (internal quotations omitted). (116) 222 F.3d 1105 (9th Cir. 2000). (117) Id. at 1122. (118) Id. at 1110. The Playa Vista community of Los Angeles is approximately two miles from the Pacific Ocean, two miles north of Los Angeles International Airport, and immediately east of the Marina Del Rey community of Los Angeles. LOS ANGELES ALMANAC: MAP--INDIVIDUAL COMMUNITIES WITHIN THE CITY OF LOS ANGELES, available at http://www.laalmanac. com/LA/lamap2.htm. (119) Wetlands Action Network, 222 F.3d at 1105. (120) Id. at 1121-1122. (121) Id. at 1110-1111. (122) Id. at 1113. (123) Id. at 1122. (124) Id. at 1118-1119. (125) 33 C.F.R. pt. 325, app. B [section] 7(B)(3) (2004). (126) Wetlands Action Network, 222 F.3d at 1116 (quoting Friends of the Earth v. Coleman, 518 F.2d 323, 329 (9th Cir. 1975)). (127) Id. at 1117 (citing 33 C.F.R. pt. 325 app. B [section] 7(b)(3)). "Similarly, if an applicant seeks a DA permit to fill waters or wetlands on which other construction or work is proposed, the control and responsibility of the Corps, as well as its overall Federal involvement would extend to the portions of the project to be located on the permitted fill. However, the NEPA review would be extended to the entire project, including portions outside waters of the United States, only if sufficient Federal control and responsibility over the entire project is determined to exist; that is, if the regulated activities, and those activities involving regulation, funding, etc. by other Federal agencies, comprise a substantial portion of the overall project."). Id. (128) Id. (129) Id. (139) Id. The project was subject to review pursuant to the California Environmental Quality Act, CAL. PUB. RES. CODE [subsection] 21000-21177 (West 2004). (131) Id. (132) Elizabeth Roche, Note The Continuing Saga of Rippling Puddles, Small Handles, and Links of Chains: Wetland Action Network v. United States Army Corps of Engineers, 13 VILL. ENVTL. L. J. 119, 155 (2002) (quoting Terence L. Thatcher, Understanding interdependence in the Natural Environment: Some Thoughts on Cumulative Impact Assessment Under the National Environmental Policy Act, 20 ENVTL. L. 611, 647 (1990)). (133) Save Our Sonoran I, 227 F. Supp. 2d 1111, 1115 (D. Ariz. 2002). (134) Save Our Sonoran II, 381 F.3d 905 (9th Cir. 2004). (135) See supra Part II.A. for a discussion of the site's location within the Phoenix urban growth area. (136) PCR SERVICES WEBSITE, at http://www.pcrnet.com/experience/pv.htm (last visited July 24, 2005). (137) In its Save Our Sonoran II decision, the Ninth Circuit states that 19% of the Lone Mountain parcel was "affect[ed]" by the desert washes, without further explanation of the significance of this fact. 381 F.3d at 909. This percentage is similar to the percentage of wetlands on the Playa Vista property. (138) While rainfall totals on the two sites are similar, the Lone Mountain site is more and than the Playa Vista site when taking into account the greater potential water loss through evaporation and transpiration. See ARIZONA-SONORA DESERT MUSEUM, supra note 1, at 9-10 for a discussion of what constitutes a desert. (139) Save Our Sonoran I, 227 F. Supp. 2d at 1111, 1114 (D. Ariz. 2002). (140) Id. (141) 996 F. Supp. 668 (S.D. Tex. 1998). (142) Lake Jackson, Texas is located 60 miles south of Houston and 10 miles from the Gulf of Mexico. Its population is approximately 26,000. For general information, see WELCOME TO LAKE JACKSON, TEXAS, at http://www.ci.lake-jackson.tx.us/(last visited July 24, 2005). The golf course under dispute is known as the "Wilderness Golf Course." See THE WILDERNESS OF LAKE JACKSON, at http://www.thewildernessgc.com (last visited July 24, 2005). (143) Stewart, 996 F. Supp. at 672-673. (144) Id. at 673. (145) Id. (146) Id. at 682-683. (147) Id. (148) Id. (149) Id. at 683. (150) Save Our Sonoran I, 227 F. Supp. 1111, 1114 (D. Ariz. 2002). (151) Id. at 1112. (152) The golf course site is now located within the corporate boundaries of Lake Jackson but is separated from the rest of the city by a large natural area. E-mail from Pare Eaves, Lake Jackson Finance Director and Wildness Project Coordinator, to the author (Nov. 30, 2004, 15:35:43 PST) (on file with author). (153) Sylvester, 884 F.2d 394, 396 (9th Cir. 1989). (154) Stewart, 996 F. Supp. at 672. (155) See TIM ROGERS, MASTER PLANNED COMMUNITIES, at http://phoenix.about.com/ cs/real/a/masterplanned.htm (last visited July 24, 2005) (describing such communities as "incorporat[ing] extensive recreational amenities like lakes, golf courses, and expansive parks with bike paths, and jogging trails"). (156) 33 C.F.R. pt. 325 app. B. [section] (7)(b)(2) (2004). (157) The United States Fish and Wildlife Service and the Environmental Protection Agency, in commenting on the Corps's permit, disagreed with the Corps's assessment that the site was not a potentially suitable habitat for the ferriginous pygmy owl, listed as an endangered species under the Endangered Species Act. Save Our Sonoran II, 381 F.3d 905, 910 (9th Cir. 2064). However the district court did not include this information in its decision, and the Ninth Circuit, after noting it, did not discuss it further except to say that the agency disagreement was a reason to expand the scope of review. Id at 914. (158) Save Our Sonoran, Consolidated Opening Brief and Response to Cross-Appellant at 32 n.9, Save Our Sonoran II, 381 F.3d 905 (9th Cir. 2004) (Nos. 02-16156, 02-16263, and 02-16355). (159) Save Our Sonoran I, 227 F. Supp. 2d 1111, at 1113 (D. Ariz. 2002). (160) Id at 1114. (161) Save Our Sonoran II, 381 F.3d at 914. (162) See PHOENIX PLANNING DEPT., CITY OF PHOENIX GENERAL PLAN: A VISION FOR THE FUTURE (2005), http://www.ci.phoenix.az.us/pub/PLANNING/gpmap3.pdf. (163) 56th Street, 64th Street, Dove Valley Road, and Lone Mountain Road are all designated as Arterial or Collector Streets on the Phoenix General Plan Map. Id. (164) The site is located in Phoenix's RE-35 zoning district. Under the "Planned Residential Development" option, the minimum lot size of 35,000 square feet is waived, and the standard requirement of single-family detached homes is also waived to allow attached dwelling units. PHOENIX, ARIZ. ZONING ORDINANCE ch. 6, [section] 609 (2005), available at http://library10.municode.com/gateway.dll/1/2?f=templates&fn=default.htm &vid=nextpage:135340&npusername=13534&nppassword=MCC&npac_credentials present=true (last visited July 24, 2005). (165) Wetlands Action Network, 222 F.3d 1105, 1116 (9th Cir. 2000). (166) Id at 1116-17. (167) See Ian L. McHarg et al., A Case Study in Ecological Planning: The Woodlands, Texas (1979), in To HEAL THE EARTH: SELECTED WRITINGS OF IAN L. McHARG 242-63 (Ian L. McHarg & Frederick R. Steiner eds., 1998) (providing an example of analysis of environmental opportunities and constraints in the development of The Woodlands, a large master-planned community north of Houston, Texas). (168) 33 C.F.R. pt. 325, app. B [section] (7)(b)(2) (2004). (169) SWANCC, 531 U.S. 159 (2001). (170) United States v. Lopez, 514 U.S. 549 (1995). (171) United States v. Morrison, 529 U.S. 598 (2000). (172) Federal Water Pollution Control Act, 33 U.S.C. [section] 1344(a) (2000). (173) Id. [section] 1362(7). (174) 33 C.F.R. [section] 328.3(a)(3) (2003). (175) Id. [section] 328.3(a)(5). (176) Save Our Sonoran II, 381 F.3d 905, 909 (9th Cir. 2004). (177) See United States v. Riverside Bayview Homes Inc., 474 U.S. 121 (1985) (finding wetlands adjacent to navigable waters subject to Clean Water Act jurisdiction); see also United States v. Earth Sciences Inc., 599 F.2d. 368 (10th Cir. 1979) (holding that a seasonal arroyo in Colorado was a navigable water subject to Clean Water Act jurisdiction). (178) 765 F.2d 126 (10th Cir. 1985). (179) Id. at 127. (180) Id. at 129. (181) The site is located in the mountains north of Grants, New Mexico. (182) Quivira, 765 F.2d at 129. (183) SWANCC, 531 U.S. 159, 172 (2001). (184) Id. at 174. (185) Id. at 164. (186) Id. at 164 n. 1. (187) 33 C.F.R. [section] 328(a)(3); Final Rule for Regulatory Programs of the Corps of Engineers, 51 Fed. Reg. 41,206, 41,217 (Nov. 13, 1986). (188) SWANCC, 531 U.S. at 168-171. (189) 474 U.S. 121 (1985). (190) SWANCC, 531 U.S. at 167. (191) Id. at 172. (192) SWANCC, 531 U.S. at 174. (193) See, e.g., William Funk, The Court, the Clean Water Act, and the Constitution: SWANCC and Beyond, 31 ENVTL. L. REP. 10741 (2001) (stating that the SWANCC is "the most devastating judicial opinion affecting the environment ever"); Robin Kundis Craig, Beyond SWANCC: The New Federalism and Clean Water Act Jurisdiction, 33 ENVTL. L. 113, 142 (2003) (stating that because "'navigable' now has jurisdictional import for CWA--as SWANCC clearly does--then the inclusion of even hydrogically connected groundwaters seems to exceed Congress' authority over traditional navigable waters and thus violate the principles of CWA federalism"); Philip Weinberg, It's Time for Congress to Re-arm the Army Corps of Engineers: A Response to the Solid Waste Agency Decision, 20 VA. ENVTL. L.J. 531, 533 (2001) (stating that the SWANCC decision is an "invitation for Congress to clarify and restate its intention to assert broad federal jurisdiction under the Clean Water Act"). (194) See infra Parts IV.E, IV.F. (195) See CONSTANCE ELIZABETH HUNT, THIRSTY PLANET 5-23 (2004) (describing the hydrological cycle and the movement of water through it). (196) Within the United States, only 500,000 square kilometers (the Great Basin) of a total of almost 10,000,000 square kilometers does not drain into an ocean. And the Great Basin is within the driest part of the United States, so the percentage of runoff not flowing into oceans is even less. WIKIPEDIA, GREAT BASIN, at http://en.wikipedia.org/wiki/Great_Basin (last visited July 24, 2005). (197) Cook County, Illinois is split between the Mississippi River and Lake Michigan/St. Lawrence River drainage basins. WILLIAM ALDEN, DESCRIPTION OF THE CHICAGO DISTRICT, at http://www.ebeltz.net/folio/cfol-1.html (last visited July 24, 2005). (198) Craig, supra note 193, at 141. (199) Craig, supra note 193, at 141-42. (200) Craig, supra note 193, at 142. (201) 250 F.3d 264 (5th Cir. 2002). (202) 33 U.S.C. [subsection] 2701-2720 (2000). (203) Compare 33 U.S.C. [section] 2701(21) (2000) with 33 U.S.C. [section] 1362(7) (2000). (204) Exxon v. Train, 554 F.2d 1310, 1322 (5th Cir. 1977); Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994). (205) Rice v. Harken, 250 F.3d at 270. (206) 33 U.S.C. [section] 2702(a) (2000). The CWA gives the Corps authority over discharges "into the navigable waters." 33 U.S.C. [section] 1344(a) (2000). (207) Rice v. Harken, 250 F.3d at 271-72. (208) Big Creek is located in Hutchinson County, Texas, in the Texas Panhandle near Amarillo. The County receives an average of less than twenty inches of rain per year. For information on Hutchinson County, see http://www.tsh&utexas.edu/handbook/online/articles/view/HH/hch23. html (last visited July 24, 2005). (209) Idaho Rural Council v. Bosma (Bosma), 143 F. Supp. 2d 1169, 1179-81 (D. Idaho 2001); N. Cal. River Watch v. City of Healdsburg, No. C01-04686, 2004 U.S. Dist. LEXIS 1008 at 34-35 (N.D. Cal. 2004). (210) Id. (211) 143 F. Supp. 2d 1169 (D. Idaho 2001). (212) Id. at 1179-81. (213) Id. at 1180. (214) Id. at 1178-79. (215) Id. at 1180. (216) Id. at 1179-80. (217) Craig, supra note 193, at 143. (218) For a map of the Gila River basin, see The University of Arizona Cooperative Extension, College of Agriculture and Life Sciences, Arizona Watershed Information, at http:// www.cals.arizona.edu/watershed/(last visited July 24, 2005). (219) See In re Gen. Adjudication of All Rights to Use Water in the Gila River System and Source, 857 P.2d 1236, 1243 (Ariz. 1993) (noting that groundwater use under an earlier 1931 decision of the Arizona Supreme Court was "part of a constant backdrop for vast investments, the founding and growth of towns and cities, and the lives of our people"). (220) Craig, supra note 193, at 142. (221) See OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, IMPLEMENTATION OF OREGON'S GROUNDWATER QUALITY PROTECTION ACT 5 (2001) (noting that groundwater becomes polluted from polluted fluids seeping into the ground--also listing the types of pollutants typical of groundwater contamination, a list which does not include fill dirt unless the dirt itself is contaminated), available at http://www.deq.state.or.us/pubs/legislativepubs/2001reports/ GWProtectAct.pdf. (222) 33 C.F.R. [section] 328.3(a)(5) (2004). (223) See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2441 (1986) (defining "tributary" as "a stream leading into a larger stream or lake"). (224) 33 C.F.R. [section] 328.3(a)(5) (2004). (225) Craig, supra note 193, at 132. (226) 243 F.3d 526 (9th Cir. 2001). (227) The SWANCC decision was issued in January 2001. Talent was issued in March 2001. (228) Craig, supra note 193, at 132. (229) Talent, 243 F.3d at 528. (230) Talent, Oregon is located in the southern Rogue River Valley in Southern Oregon, between Medford and Ashland. City of Talent, City of Talent, at http://www.cityoftalent.org/ (last visited July 24, 2005). (231) 40 C.F.R. [section] 122(c), (e) (2004). (232) Talent 243 F.3d at 533. (233) Id (234) Id. at 534 (internal quotation omitted). (235) 367 F.3d 846 (9th Cir. 2004). (236) Id. at 854-56. (237) Id at 855. (238) 332 F.3d 698 (4th Cir. 2003). (239) Id. at 702. (240) Deaton, 332 F.3d at 705-707 (quoting United States v. Lopez, 514 U.S. 549, 558 (2000)). (241) Id. at 706. See Cametti v. United States, 242 U.S. 470, 491 (1971) (recognizing the regulation of the channels of interstate commerce includes the power to keep the channels free from immoral and injurious uses). (242) Deaton, 332 F.3d at 708. (243) See Craig, supra note 193, at 135 (explaining minority rule in regards to judging navigability). (244) See United States v. Rapanos, 190 F. Supp. 2d 1011 (E.D. Mich. 2002) (holding farmer's property was not adjacent to a navigable water body and did not require CWA permit), rev'd, 339 F.3d 447 (6th Cir. 2003) (reversing district court's decision by holding farmer's property was adjacent to a navigable in fact water body although it was eleven to twenty miles away); United States v. Newdunn Assocs., 195 F. Supp. 2d 751 (E.D. Va. 2001) (finding that wetlands that enter a navigable body through a system of drainage ditches are not subject to CWA jurisdiction), rev'd sub nom. Treacy v. Newdunn Assocs., 344 F.3d 407 (4th Cir. 2003) (holding that wetlands that connected to tributary via man made ditch system is subject to CWA jurisdiction). (245) 239 F. Supp. 2d 509 (D.N.J. 2003). (246) Id. at 516. (247 33 C.F.R. [section] 328.3(a)(7) (2004). (248) SWANCC, 531 U.S. 159, 171 (2001). (249) Deaton, 332 F.3d 698, 711 (4th Cir. 2003); Talent 243 F.3d 526, 533 (9th Cir. 2001). (250) See United States v. Texas Pipeline Co., 611 F.2d 345, 347 (1979) (holding that a hydrogical connection need not be permitted to assert CWA jurisdiction). (251) Quivira Mining Co. v. United States Envtl. Prot. Agency, 765 F.2d 126 (10th Cir. 1985). (252) The sites in Quivira were located in Ambrosia Lake, New Mexico. Id. at 127. The elevation of Ambrosia Lake is almost 7,000 feet. UNITED STATES GEOLOGIC SURVEY, AMBROSIA LAKE QUAD, available at http://www.topozone.com/map.asp?lat=35.41889&lon=-107.82111 (last visited July 24, 2005). (253) See ARIZONA-SONORA DESERT MUSEUM, supra note 1, at 8-9 (describing desert environment). (254) Administrative Procedure Act, 5 U.S.C. [section] 553 (2004). See SWANCC, 531 U.S. 159, 164 n.1 (2001) (noting that the Corps did not go through formal rulemaking procedures to adopt the migratory bird rule). (255) National Environmental Policy Act of 1969, 42 U.S.C. [section] 4332 (2000). For an endorsement of Talent' s broad interpretation of tributaries to navigable waters, see Bradford C. Mank, The Murky Future of the Clean Water Act After SWANCC. Using a Hydrological Connection Approach to Saving the Clean Water Act, 30 ECOLOGY L.Q. 811,888 (2003). (256) For NEPA implementation, see Mary K. Fitzgerald, Comment, Small-Handles, Big Impacts: When Should the National Environmental Policy Act Require an Environmental Impact Statement?, 23 B.C. ENVTL. AFF. L. REV. 437, 468-69 (1996) (advocating preparation of comprehensive EISs when faced with the "small handle" problem). For a non-NEPA example, see Michael J. Blumm and William Warnock, Roads Not Taken, EPA vs. Clean Water, 33 ENVTL. L. 79, 83 (2003) (attacking the EPA for its refusal to exploit ambiguities in the Clean Water Act to more aggressively reduce non-point source pollution). (257) See Parenteau, supra note 89, at 757. (258) See Parenteau, supra note 89, at 758 n.34. (259) Craig, supra note 193, at 130-31. (260) See New York v. United States, 505 U.S. 144, 156-57, 187-188 (1992) (holding that a federal statute relating to hazardous waste disposal is an unconstitutional infringement on state sovereignty guaranteed by the Tenth Amendment). (261) Id at 156. (262) SWANCC, 531 U.S. 159, 172 (2001). (263) Id. at 173. (264) Id (265) See supra Part IV. (266) See supra Part V. (267) See Nicholas C. Yost, NEPA's Evolution: The Decline of Substantive Review: Article: NEPA's Promise-Partially Fulfilled, 20 ENVTL. L. 533, 533-34 (1990) (using the words of the bill's Senate author Henry Jackson to call for a return to substantive review by federal agencies under NEPA). (268) See Paul J. Culhane, NEPA's Impacts on Federal Agencies, Anticipated and Unanticipated, 20 ENVTL. L. 681, 684-88 (1990) (discussing NEPA as a "garbage can" statute, into which various stakeholders and policy makers can throw their various and disparate ideas about how to implement sound environmental policy). (269) See Parenteau, supra note 89, at 747-48 (noting that, while NEPA may appear to apply only to federal projects, court decisions have made clear that NEPA also applies to "federalized" private projects). (270) SWANCC, 531 U.S. 159, 174 (2001) (quoting Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 44 (1994)). (271) Id at 173. (272) U.S. CONST. art. I, [section] 8, cl. 3. Examples of the Supreme Court striking down overly-broad federal legislation include Lopez, 514 U.S. 549 (1995), and Morrison, 529 U.S. 598 (2000). (273) 33 C.F.R. pt. 325, app. B [section] (7)(b)(2). GORDON H. HOWARD * * [c] Gordon H. Howard, 2005. Member, Environmental Law, 2004-2005; J.D. expected 2006; M.A. 1984, University of California, Los Angeles; B.A. University of California, San Diego, 1981. The author wishes to thank his wife, Emily, for her support and encouragement. |
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