The Dragoon Mountains loom over the San Pedro Riparian Area near St. David and Benson. The Villages at Vigneto would put 28,000 homes, along with retail and recreational facilities, on more than 12,000 acres near the San Pedro River.

In the end, whether the 28,000-home Villages at Vigneto will be greenlighted for development may depend on how the courts deal with two key points.

These points have dominated recent debate on the 12,300-acre project in Benson:

  • First, Vigneto’s developers say they don’t need a federal Clean Water Act permit to develop the site. They say they could and will build the project in a different fashion if they don’t get the permit.
  • Second, they want the permit anyway.

Those facts are among several reasons why the U.S. Army Corps of Engineers has limited how thoroughly it analyzes the project’s impacts.

So far, that’s meant that the development’s impacts on the San Pedro River aren’t being studied, although that’s the issue the project’s critics are most concerned about.

Being told that Vigneto could build a project without a permit also triggered then-Fish and Wildlife Service official Steve Spangle’s abrupt 2017 reversal of his previous position favoring a full-fledged review of the project.

Spangle originally wanted to analyze the effects of developing all 12,324 acres of the property but backtracked to 1,775 acres.

If a private project can proceed independent of federal action, there’s not enough justification for the federal government to analyze the entire project’s impacts, the chief of the Corps’ Arizona branch, Sally Diebolt, wrote to Spangle in 2017.

“The Corps’ federal control and responsibility are often, as in this case, limited,” she wrote.

Meanwhile, Vigneto’s clean-water permit is still pending — and its status has flipped back and forth for years.

The permit was granted by the Corps in 2006 but is now undergoing its third round of reviews by the agency. The Corps has approved the permit once, been sued over it twice, suspended it twice and reinstated it once. It was most recently suspended in February 2019.

Five conservation groups filed suit challenging the Corps’ recent reinstatement of the original, 2006 permit in October. They have made the Corps’ limits on its analysis, and the developer’s claim it could build without the permit, key issues in the lawsuit.

They see the developer’s desire for a permit that it says it doesn’t need as a major inconsistency. While Vigneto officials deny that they've formally applied for a permit--since they consider the 2006 permit still valid--they have openly pushed to have the suspensions lifted.

Today, the now-retired Spangle says the developer’s position “doesn’t pass the smell test.”

“They wanted their development full-blown as they planned it. They also wanted to say they could still build it without a permit. That to me is having it both ways,” said Spangle, who has alleged that Interior Department higher-ups pressured him to reverse his decision.

“It’s disingenuous to me to submit a project for analysis, then to say you should only do the analysis a little bit,” he said.

Three law professors with experience in researching Clean Water Act permitting disagreed in interviews with the Corps’ position that the development doesn’t need a full-blown environmental analysis. They are not involved in the Vigneto issue themselves.

The Corps is mum on these issues, saying it can’t comment on issues in litigation.

It did, however, send the wildlife service a letter on May 23 saying it’s sticking by its original conclusion that the project isn’t likely to affect endangered and threatened species.

Vigneto’s developer, Scottsdale-based El Dorado Holdings Inc., says it’s not trying to have it both ways.

For one, it wants the permit — which allows for the filling of 51 acres of washes — because that will allow development “in the most environmentally sensitive method the company could have possibly chosen,” one best for the quality of life, said Lanny Davis. He’s a prominent Washington, D.C., attorney representing El Dorado as a lawyer and media spokesman.

If El Dorado doesn’t get the permit, it still plans to develop the land in a different fashion — one it says will be less environmentally sensitive but still technically and economically feasible.

“We only want it one way — the 2006 permit way which is best for the environment,” said Davis, adding that El Dorado's position is that the 2006 permit remains valid.

Davis also noted that the Corps wrote a May 2017 letter to Spangle that offered several, clearly independent legal grounds — regardless of El Dorado’s position that it can build a project without a permit — to justify its decision that limiting its scope of analysis is “legally correct on the facts and the law.”

It first made that judgment in 2006 and confirmed it in 2017, Davis noted.

The Army Corps would have limited the scope of its analysis, based on the facts and the law, even if the developer couldn’t have built the Vigneto project without a Clean Water Act permit, Davis said.

Environmentalists disagree on that point, meaning the courts will have to decide who’s correct.

What could be built without permit

The Army Corps laid out what El Dorado could build without a permit in its biological evaluation of Vigneto in May 2017.

The agency had to discuss this alternative project because under federal law, the Corps can’t approve a permit to discharge fill material into federally regulated washes unless no reasonable alternative exists.

The project site has plenty of room for the development without touching washes, the Corps said. But to avoid them, the project’s total acreage would have to be expanded.

Plus, a no-permit project’s roads would mostly or totally tie into Arizona 90, running east-west, while the permitted project’s roads would run mostly north-south. The no-permit project would add greatly to the highway’s traffic load, increasing congestion and air pollution, in contrast with a project built under a permit, Vigneto developers say.

Also, the project would have to scrap plans to build “roundabouts” at six intersections at Arizona 90 — aimed at reducing traffic disruption — in favor of traffic lights, requiring frequent stops.

Bridges could be built over federally regulated washes without a permit — but to avoid damaging washes, the spans would have to be longer and more expensive, reducing their number, the Corps said.

That would limit how well neighborhoods were physically connected, eating into Vigneto’s vision of a cohesive community. Plans for an integrated network of paths and trails also would be curtailed.

The alternative project would also have less open space, and because it would build out more slowly, would also have less ability to quickly put effluent onto its golf courses, increasing groundwater use, the Corps said.

“Admittedly, developing our property in this matter would not meet the project purpose, and will be less efficient from a land planning standpoint. Our core concept of interconnected villages will be difficult to retain,” El Dorado President Jim Kenny wrote to the Corps in September 2017.

“Nevertheless, the development is feasible from an engineering and land planning perspective,” Kenny wrote.

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If the permit is denied, “El Dorado will develop the site in this fashion, rather than sitting on its investment and earning no return.”

Robin Silver, an environmentalist opposed to Vigneto, said that if the project had to proceed without a federal permit, it would be gridlocked because it would flood Arizona 90 with more cars and trucks than it could accommodate.

Citing the developer’s own Vigneto transportation plan, he said it shows that Arizona 90 is currently carrying a little less than one-third the vehicles it’s designed to carry. But if all of Vigneto’s traffic had to use that highway to enter and leave the development, its traffic load would jump to far above the road’s capacity, said Silver, conservation chair for the Center for Biological Diversity.

“I can’t imagine any community approving those kind of plans,” Silver said.

“Doesn’t get the Corps off the hook”

In a memo and in a letter to the wildlife service in May 2017, the Corps listed the alternative project as one of several reasons for turning down the service’s desire for a sweeping analysis of Vigneto.

But if the developer could build its preferred project without the permit, it wouldn’t want one, said Robin Craig, a University of Utah law professor who has written a book on the Clean Water Act.

The fact that the developer is applying for one and wants to grade the washes suggests that the full requirements of the National Environmental Policy Act apply, Craig added. That involves looking at the entire project’s cumulative impacts, she said.

The developer’s ability to build another project without touching washes “doesn’t get the Corps off the hook” from having to analyze all impacts, Craig said.

If there is no way to build the project without affecting the washes, the federal government has to apply all relevant legal and regulatory standards to it, said Georgetown University law professor Bill Buzbee.

That would include a “public interest review” of relevant issues such as the potential for water shortages or the damage to riparian vegetation from the project’s water use, Buzbee said.

“There’s no such thing as an exemption (from a thorough review of project impacts) because a company could design their project around a regulation,” Buzbee said. “That makes no sense.”

“Two-faced analysis”

Making this issue trickier is that when the Corps reinstated Vigneto’s original, 2006 Clean Water Act permit last October (it’s now suspended again), the agency said the alternative plan isn’t “practicable.”

That’s a legal term, meaning the alternative may be economically, logistically and technically feasible, but doesn’t meet the project’s purpose of a cohesive community. So the agency couldn’t use the alternative project as a reason to revoke the 2006 permit.

That puts the Corps in what an attorney for opponents and a law professor say is a contradictory legal position, by using the alternative project as one factor justifying its limit on an environmental analysis, while saying that project is legally unacceptable as an alternative.

“They’re trying to have their cake and eat it, too,” said Stu Gillespie, an attorney for the environmental groups suing over Vigneto. “It’s a total two-faced analysis.”

The Corps’ position does seem inconsistent, said University of Alabama law professor William Andreen. Once it’s rejected an alternative as impractical, the Corps can’t use that alternative as an excuse to not analyze the entire project that it does accept, he said.

“They have to identify all direct and indirect impacts of the preferred alternative,” he said.

Contact reporter Tony Davis at tdavis@tucson.com or 806-7746. On Twitter@tonydavis987

Tony graduated from Northwestern University and started at the Star in 1997. He has mostly covered environmental stories since 2005, focusing on water supplies, climate change, the Rosemont Mine and the endangered jaguar.