Will FICO be required to do an Environmental Impact Study on its plan to channelize 12 miles of the Santa Cruz River?by Hugh Holub on Jul. 17, 2011, under environment water and energy, politics
The Farmers Investment Company (FICO) has an ambitious plan to convert its thousands of acres of pecan orchards into thousands of homes.
FICO has filed its Specific Plan application and the Town of Sahuarita will be grappling with this massive land plan.
FICO would like everyone to just trust them because they’ve been part of the area for decades and they know what is best for their land and the rest of the people in Pima County.
The FICO project raises lots of serious questions that must be dug into deeply before Sahuarita grants any approvals for the project.
One particular issue is near and dear to my heart because of both my background in water issues as well as having served on the Pima County Flood Control Advisory Committee.
That issue is FICO’s proposal to bank protect what looks to be 12 miles of the Santa Cruz River so FICO’s farmland can be gotten out of the 100 year flood plain and the land sold so thousands of houses can be built on the pecan farm site.
FICO cannot develop most of its land unless it can remove that land from the flood plain.
Watching the FICO presentations it sounds like the river corridor is going to be improved with a park and all that.
But wait a minute.
First question is who is going to pay for 12 miles of bank protection along the river? FICO better be putting up 100% of the money so Pima County taxpayers aren’t stuck with the bill.
One has to wonder if the FICO development is even feasible if it has to cover 100% of the costs of the 12 miles of bank protection inside it’s project boundaries?
Past experience with land development tells me it is very unlikely the project is feasible if FICO has to build the bank protection before any land development is allowed and pay 100% of the bank protection costs itself.
Second question is who is going to pay to maintain the bank protection and river park?
Back when I was on the Pima County Flood Control District advisory committee we had a little study done about what it was costing to maintain bank protection and adjacent river parks and trails. As I remember the answer, it was a lot. In fact, there were projections that eventually 100% of Pima’s flood control tax levy would be consumed by the river park and bank protection maintenance costs.
FICO will obviously argue the river park is a community-wide benefit which is code for the wider community having to pay to maintain the river park.
Should Pima Flood Control District taxpayers in Tucson pay for a river park in Sahuarita? Should any taxpayer get stuck with the bill for the river park outside of the FICO development?
Under the theory that growth ought to pay for itself…no one outside the FICO project should pay a dime for the FICO bank protection or river park. The river park will be an amenity for the FICO project.
The Town of Sahaurita should avoid sticking Pima’s taxpayers or Sahaurita taxpayers with FICO’s bank protection and park maintenance costs.
Remember…all of this is so FICO can turn its orchards now growing nuts into land growing houses. They benefit hugely. Thus the cost of maintaining and operating the bank protection and river parks must be nailed to the benefiting property…FICO’s development…and never snuck into Sahuarita’s or Pima County’s budgets.
Third, flood plains serve an important function in groundwater recharge. Messing with them with bank protection reduces their recharge value, and turns rivers into fire hoses moving water rapidly downstream to where there is no bank protection.
Pima learned that lesson the hard way in 1983 where storm flows bounced off bank protected areas and eroded unprotected banks. Remember the picture of the building falling into the Rillito River near First Avenue?
Once you start pouring concrete or soil cement along our rivers, you almost never can stop due to the changes in hydraulics of the rivers.
FICO has argued that the river channel is not natural, thus bank protecting it would be an improvement.
Maybe the argument is the river channel needs to be restored more to its natural state.
Come to next big flood (as it surely will), it is lot less costly to everyone to wash away a few trees instead of homes and bridges.
Fourth…what is the impact of FICO’s channelization project on the San Xavier Indian Reservation?
Whatever…the proposal to radically modify the flood plain of the Santa Cruz River involves numerous federal decisions like Army Corps of Engineer 404 permits.
As I understand federal law, none of FICO’s scheme can be pursued until there is a federal Environmental Impact Statement study done and a whole lot of public participation allowed.
Is FICO going to do a full-blown environmental impact study and go through the federal EIS process before it gets approval of its land use plan from the Town of Sshuarita?
The way the process is set up right now, FICO is seeking approval of its land use plan before doing the environmental impact studies.
Why would they be doing that? It is obvious…if the Town of Sahaurita approves the land use plan before there is an environmental impact study, sure as the sun rises in the east FICO will then allege it has an “entitlement” to the proposed land use and will then argue that there is no other option in the EIS process but to go forward with the channelization of the Santa Cruz River.
That is incredibly ironic because FICO is one of the leading opponents of the Rosemont mine and they demand even more environmental impact study work be done before any approvals are granted for the mine.
Is this not an interesting double standard?
The Town of Sahuarita should shelve the FICO land use proposal and require FICO to do the environmental impact analysis first…and only then consider the land use plan after the EIS work is done.
Here is a legal discussion about the FICO channelization plan and federal law:
THE APPLICATION OF NEPA TO SAHUARITA FARMS
Farmers Investment Co. (FICO) is preparing a comprehensive, long-term plan for the development of its 7,000 acres and its 12 miles of Santa Cruz riverfront over the next 40 to 50 years. This development is called Sahuarita Farms, and it will be massive in scale. It will contain 19,000 homes, over 400 acres of commercial and mixed land uses, industrial and commercial “campuses” containing more than 600 acres, an urban entertainment district, and various additional retail and office uses scattered throughout the project. Additional background on the Sahuarita Farms development is available at http://www.sahuaritafarms.com/vision.
FICO’s development plan requires significant improvements to the Santa Cruz River, which extends 12 miles through the center of the project. Under the plan, the river’s floodway will be widened and contoured to control flooding. It will then be re-vegetated, and various amenities will be constructed, including sports and recreational facilities. This area will be approximately 1,500 feet wide and contain over 1,000 acres of land.
Given the location, size and scope of the Sahuarita Farms development, a variety of federal permits and approvals will be needed. Given the extent of federal involvement in and control over the project, including the impacts to the Santa Cruz River and its floodway, the entire project will be subject to procedural and public disclosure requirements imposed by the National Environmental Policy Act (NEPA), requiring the preparation of an environmental impact statement.
1. Overview of NEPA’s Action-Forcing Requirements
NEPA advances two important policy goals. First, NEPA establishes procedural mechanisms to force federal agencies to take a “hard look” at the environmental consequences of their actions. Second, NEPA ensures that federal agencies make information regarding their proposed actions available to other governmental agencies and the public. The Supreme Court has stated:
NEPA ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decision making process and the implementation of the decision.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
These goals are achieved through the requirement that agencies prepare an environmental impact statement (EIS) for any “major federal action significantly affecting the quality of the human environment.” 40 U.S.C. § 4332(2)(C). Under the Council on Environmental Quality’s regulations, the term “major Federal action” is defined as “actions with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18. “Actions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies.” 40 C.F.R. § 1508.18(a).
NEPA requires agencies to consider “all foreseeable direct and indirect impacts” of their proposed actions. Idaho Sporting Congress, Inc. v. Rittenhouse, A permit under section 404 of the Clean Water Act, 33 U.S.C. § 1344, is necessary to discharge material into “waters of the United States,” a term that is broadly defined and often includes ephemeral and intermittent watercourses. The issuance of a section 404 permit is a federal action that triggers compliance with NEPA.305 F.3d 957, 973 (9th Cir. 2002) (citing City of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir. 1975)). The “effects” (i.e., impacts) of a proposed action include both “direct effects” and “indirect effects.” 40 C.F.R. § 1508.8. “Direct effects” are “caused by the action and occur at the same time and place.” 40 C.F.R. § 1508.8(a). “Indirect effects” are “caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” 40 C.F.R. § 15 08.8(b).
In addition, federal agencies must consider “cumulative impacts” associated with their proposed actions and the impacts of any “connected actions.” Among other things, this requirement prevents a project proponent from dividing his project into small spatial or temporal pieces that appear individually insignificant, thereby avoiding the preparation of an EIS. 40 C.F.R. § 1508.27(b)(7).
Cumulative impacts are defined as “the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” 40 C.F.R. § 1508.7.
Connected actions are actions that “are closely related and therefore should be discussed in the same impact statement.” 40 C.F.R. § 1508.25. Actions are connected if they (i) automatically trigger other actions which may require environmental impact statements; (ii) cannot or will not proceed unless other actions are taken previously or simultaneously; or (iii) are interdependent parts of a larger action and depend on the larger action for their justification” Id.
2. The Application of NEPA to Sahuarita Farms
Technically, NEPA applies only to federal agencies, and not to private land use activities. However, the presence of a federal permit can supply a nexus that effectively “federalizes” the private project for the purpose of NEPA, requiring an evaluation of the environmental impacts of the entire project. In this case, numerous federal permits and approvals would be necessary for the Sahuarita Farms development to proceed as planned, including federal permits and approvals that relate to development within and adjacent to the Santa Cruz River. Given the extent of federal control over and responsibility for central components of this project, the scope of the NEPA analysis will extend to the entire project, not just the particular activity being permitted.
The following are examples of federal permits and other authorizations that are or likely will be needed for development, triggering the application of NEPA:
1. Clean Water Act Section 404.
The Sahuarita Farms development is being planned within and around the Santa Cruz River floodplain, which extends 12 miles through the heart of the project. The improvements within and adjacent to the river are a central component of the project, according to the materials on FICO’s website, and will require a section 404 permit. Moreover, the nature and scope of these improvements and their relationship to the remainder of the development will require that the Corps’ scope of analysis extend to the entire project, not simply the areas within the Corps’ jurisdiction.
2. Rivers and Harbors Act Permit. Permits are required under section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, for structures and/or work in or affecting navigable waters of the United States. Activities within or otherwise affecting these watercourses would be subject to federal jurisdiction under the Rivers and Harbors Act, requiring a federal permit in order to protect navigation and related public uses. These permits are also issued by the Corps of Engineers and are federal actions that trigger NEPA.
A portion of the Santa Cruz River immediately south of Sahuarita has been declared a “traditional navigable water” by the Corps and EPA. This reach, called Study Reach A, begins near Tubac and extends north about 20 miles to Continental Road. Given the extensive nature of the improvements planned in and around the Santa Cruz River, the Sahuarita Farms development may require a permit under this statute as well to ensure that navigation is not impaired.
3.Endangered Species Act. The Endangered Species Act (ESA) prohibits activities that “take” (i.e., kill or injure) members of a listed species. 16 U.S.C. § 1538(a)(1). When a listed species occupy a private landowner’s property, the landowner will need to obtain a permit from the Fish and Wildlife Service authorizing the “incidental taking” of members of a listed species to avoid violating the ESA in connection with development activities. The issuance of an incidental take permit is a federal action that triggers compliance with NEPA. See 50 C.F.R. § 13.11(c).
- Sahuarita Farms may contain listed species of wildlife and plants, which would necessitate obtaining authority for an incidental taking.
4. Migratory Bird Treaty Act. The Migratory Bird Treaty Act (MBTA) protects over 800 bird species, many of which are not migratory. See 50 C.F.R. § 10.13. The MBTA makes it “unlawful at any time, by any means, or in any manner to … take … any migratory bird.” 16 U.S.C. § 703(a). Fish and Wildlife Service regulations define “take” broadly to mean “pursue, hunt, shoot, wound, kill,” etc., regardless of intent. 50 C.F.R. § 10.12. Unlike the ESA, the MBTA contains no provisions that authorize incidental take. However, it is possible to seek a special purpose permit, 50 C.F.R. § 21.27, or prepare an avian protection plans and negotiate a memorandum of understanding with the Fish and Wildlife Service. In either case, the federal authorization would trigger NEPA.
- The development of Sahuarita Farms would involve the destruction of thousands of acres of mature trees, which are likely occupied by bird species protected under the MTBA. Therefore, federal authorization to “take” migratory birds will likely be needed for the project.
5. National Flood Insurance Program. The Federal Emergency Management Agency (FEMA) manages the National Flood Insurance Program (NFIP). Nearly 20,000 communities participate in the NFIP by adopting and enforcing floodplain management ordinances to reduce future flood damage. In exchange, the NFIP makes federally backed flood insurance available to landowners in these communities. In addition to providing flood insurance and reducing flood damages through floodplain management regulations, the NFIP identifies and maps the Nation’s floodplains.
- FEMA issues various approvals in connection with administering the program, including, for example, Conditional Letters of Map Change, which are issued before a physical action occurs in the floodplain and are FEMA’s comments as to whether the proposed project would meet minimum NFIP requirements. These approvals will be critical to the Sahuarita Farms development given the extensive floodway and floodplain modifications that are planned.
6. Federal Land Use Authorizations. Large, master-planned developments such as Sahuarita Farms often require rights-of-way and similar land use authorizations from the Bureau of Land Management and other federal agencies. These authorizations may be needed for critical infrastructure, such as power lines, natural gas and water transmission facilities and major roadways. Such authorizations are federal actions that would trigger NEPA.
Federally owned lands or protected resources may also be located as in-holdings within the >Sahuarita Farms development. For example, the Juan Bautista de Anza National Historic Trail that retraces the route taken by Juan Bautista de Anzain 1775-1776 from Mexico to California where he founded the City of San Francisco. This trail runs along the Santa Cruz River through the development. According to the materials on FICO’s website, this federally protected historic trail will be improved and/or re-routed in connection with the project. These impacts would require federal authorization, triggering NEPA.
- Central Arizona Project Water. The Central Arizona Project (CAP) is administered by the federal Bureau of Reclamation. Consequently, matters concerning the transfer and use of CAP (such as building delivery structures) are subject to federal contract and would trigger NEPA.
FICO states that it is working to extend the CAP pipeline to the Santa Cruz Valley to recharge groundwater and offset groundwater pumping. These improvements would require federal authorization, triggering NEPA.
8. Federal Funding. Private projects can be “federalized” for NEPA purposes by virtue of federal grants and other types of federal funding. Given the vast number of federal programs that currently provide funding to states and local governments for regional transportation improvements (i.e., regional highways, rail, or bridges), public works and related improvements, an increasing number of private projects have a component that is supported by federal funds. In these cases, NEPA is triggered.
In conclusion, federal involvement in and control over the Sahuarita Farms development will be extensive. Not only will NEPA be triggered by these federal permits and approvals, but the level of federal involvement, particularly with regard to the improvements within and adjacent to the Santa Cruz River – which will serve as the centerpiece of the development – will require that the scope of analysis include all direct, indirect and cumulative impacts generally associated with the development. Given the magnitude of the Sahuarita Farms development and its reasonably foreseeable impacts on the Sahuarita/Green Valley area, an EIS will be required.
It is obvious the environmental impact study work needs be done beforethe Town of Sahaurita moves forward on the FICO land use plan because maybe as a result of the EIS studies the whole idea of channelizing the Santa Cruz River to build thousands of new homes is going to be rejected.