Gravel2Gavel Construction & Real Estate Law Blog
On April 9, the U.S. Court of Appeals for the Ninth Circuit, in a unanimous opinion, rejected the challenges to the U.S. Army Corps of Engineers’ (Corps) decision to issue a Clean Water Act (CWA) Section 404 permit to the Newhall Land and Farming Company (Newhall), which is planning a large residential and commercial project in Los Angeles County near Santa Clarita, CA (the Newhall Ranch project). The Newhall Ranch project, which involves the discharge of dredge and fill materials into the Santa Clara River, has been scaled back and modified, and the Ninth Circuit held that it is consistent with the CWA, the Corps’ regulations and procedures, as well as the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA). The Ninth Circuit provides an excellent primer on the Section 404 permitting process. The case is Friends of the Santa Clara River v. U.S. Army Corps of Engineers.
The Ninth Circuit begins its review by discussing the requirements of the CWA and the Section 404 permitting process, the applicable NEPA requirements, and the ESA. The Ninth Circuit then outlines the history of this project. The Newhall Ranch project, which when completed, will result in thousands of new homes in Los Angeles County and new commercial developments.
Since the excavation work will require the discharge of materials into the Santa Clara River, a Section 404 permit is required, and an application was submitted to the Corps in December 2003. Years later, in August 2011, the Corps issued a Record of Decision and a provisional Section 404 permit, taking into consideration the comments that had been received in connection with the Section 404 permit review and NEPA processes. The Corps selected “Modified Alternative 3” as the least environmentally damaging alternative, which is still fairly costly for Newhall to undertake.
Pursuant to the Administrative Procedure Act, the Santa Clarita Organization for Planning the Environment and Friends of the Santa Clara River challenged this permitting decision in the U.S. District Court for the Central District of California, and the District Court granted the defendants’ motion for summary judgment on June 30, 2015.
On appeal, the Ninth Circuit held that: (a) the plaintiffs had standing to contest this permit; (b) the Corps’ action was not arbitrary and capricious with regard to the requirements of NEPA and the ESA; and (c) the District Court properly granted summary judgment in favor of the Corps.