Feds put big Benson project on hold, suspend permit allowing construction

• Tony Davis Arizona Daily Star

Great article by Tony Davis on the suspension of the 404 Permit for the Villages at Vigneto project in Benson Arizona (Cochise County). This project (in its current form) has been ongoing for quite a while, since at least the time I started with the Bureau of Land Management (BLM) in 2014. To be honest, I've always thought this concept, in both scale and design, was completely out of place given the distance from Tucson and Sierra Vista. I just cannot picture anything close to 28,000 moving out there. Not to mention the potential impacts to the water supply for the San Pedro River as well as to local agricultural needs. Curious now to see if this ever comes back to life.

The federal government has once again put the skids on a planned 28,000-home development in Benson, by suspending its Clean Water Act permit and rescinding a determination its construction wouldn’t harm imperiled species.

The actions by the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service put the long-planned Villages at Vigneto project on indefinite hold.

While the decisions don’t say this specifically, they do raise the possibility that more detailed analysis will be required of its environmental impacts — a major bone of contention among all sides of debate over the project for years.

The agencies’ actions represent a 180-degree reversal toward the project by the Biden administration, compared to actions of the Trump administration that had moved it along. “I think this is a key victory for the San Pedro River, one of the last free flowing rivers in the desert Southwest,” said Stu Gillespie, an attorney representing six environmental groups who have been challenging the Corps permit in court. “The agency has suspended a crucial permit for the Villages of Vigneto that would have drained the aquifer that supports the river. It’s also a victory for the science, facts and the law. “Now the agencies need to withdraw the permit and put an end to this ill-conceived project,” he said.

A spokesman for the developer, El Dorado Holdings, said Thursday in a statement, “We do not believe the suspension is merited as no facts or circumstances have changed that would warrant such a suspension. The permit has been in place since 2006 through multiple administrations.” While the developer has said in the past that it could build the project using a different development configuration without a federal permit, it gave no sign Thursday of taking that course.

“The Army Corps of Engineers will reevaluate the circumstances surrounding the permit, as it has done before, and we are confident it will be reinstated again. We look forward to working with the Corps to address any questions that the agency may have,” the spokesman said.

The latest decisions were disclosed in a federal court document this week, filed in response to the environmentalists’ lawsuit. The Army Corps on July 1 suspended a permit that would have allowed El Dorado Holdings to discharge into neighboring washes about 57 acres of dredged and fill material out of 8,212 acres of the Vigneto project. Eventually, the project would cover 12,167 acres. The decision came three days after the wildlife service walked back a conclusion, reached in 2017, that wash-filling activity for the project won’t harm three endangered and threatened species. They are the Southwestern willow flycatcher, the Western yellow-billed cuckoo and the Northern Mexican garter snake.

In his June 28 letter to the Corps, wildlife service official Jeff Humphrey said, "The service has conducted an internal review of the 2017 (concurrence letter), and the process by which that decision was made. Pursuant to our review, we are rescinding the 2017 (concurrence letter), effective immediately. We are prepared to work with you to comply with the Endangered Species Act as you see fit." Humphrey is field supervisor for the service's Arizona Ecological Services office in Phoenix. His letter offered no explanation as to why the service has changed its views on this issue. Because the Corps had relied on the service's 2017 conclusion in issuing the permit, the service’s reversal “changes the conditions and circumstances supporting permit issuance,” the new Corps decision said. “Therefore, the Corps has determined it is in the public interest to suspend the permit.” For now, "No discharge of dredged or fill material into waters of the United States is authorized for the Villages at Vigneto project," said Corps spokesman David Palmer. "Waters of the United States" is a legal federal term for washes, streams and rivers that fall under federal regulation under the Clean Water Act. After first issuing this permit in 2006, the Corps has suspended and reissued the permit twice before. After years of debate, the issue over how the project will be handled came to a head in 2016 and 2017, when it was then under suspension.

In 2016, Steve Spangle, then field supervisor of the wildlife service’s Arizona office, ordered a full-scale analysis of the project’s environmental impacts, including those on the imperiled San Pedro. The Corps and El Dorado officials strongly disagreed with that stance. Not long after a private meeting between El Dorado CEO Mike Ingram and then-Interior Secretary David Bernhardt, Spangle reversed his order in October 2017. That cleared the way for the Corps to reissue the permit a year later without that detailed analysis. In the spring of 2019, however, Spangle, by then retired, told the Star and other media interviewers he had reversed his decision only because he got political pressure to do so from Interior Department higher-ups. Interior officials denied applying such pressure although they did later acknowledge in court documents that Bernhardt participated in discussions about the endangered species issue.

Now, neither agency will provide much additional detail in response to questions on how their review of Vigneto will proceed.

Corps spokesman Palmer said the agency will be coordinating with the wildlife service “to comply with section 7 of the Endangered Species Act.”

That section says projects that might affect imperiled species can be subject to a full-scale federal review of those impacts. The Corps didn’t say if it will conduct such a review now.

Fish and Wildlife Service spokesman Brian Hires declined to elaborate on why the service reversed its stance that the project won’t affect endangered species, or to say what steps the service will take next.

“The U.S. Fish and Wildlife Service does not comment on active litigation, so we have no response on this at this time,” Hires said.

The service in 2019 had reaffirmed its 2017 stance following another internal review -- after Spangle had made his allegation of political interference in the case. After Spangle made his allegations, environmental groups filed suit to try to overturn the permit. Spangle said on Thursday that the two agencies’ actions make him feel vindicated.

“I never thought I had done the wrong thing in the first place,” Spangle said of his original stance requiring a full-scale analysis of Vigneto’s impacts. “I believed my call was right at the time and that it was totally political that they reversed (it).” He said he imagines that if the developer still wants the project, it’s going to have to go through a formal “consultation” on the project, meaning a review.

“Another option would be to try to find someone in the Fish and Wildlife Service who doesn’t think formal consultation is warranted, but I doubt they will be able to,” Spangle said.

U.S. House Natural Resources Committee Chairman Raul Grijalva issue a statement Thursday hailing the agencies' policy reversal on Vigneto.

“We see today that the rule of law still applies in this country, and I hope to see more of this going forward. We can’t let environmental corner-cutting become the easy get-rich-quick scheme the Trump administration was selling," said Grijalva, a Tucson Democrat whose committee has been investigating Spangle's allegation of political interference.