Flowers

In this appeal, we consider the management of the waterways in Arizona’s Sono-ran 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:

In our case, it was not Rick Blaine, but the United States Army Corps of Engineers that came to the desert for the waters. An aspiring desert developer, 56th & Lone Mountain, L.L.C. (“Lone Mountain”), sought and obtained a Clean Water Act (“CWA”) dredge and fill permit from the Corps for the construction of a gated community near Phoenix. The permit was required, and the Corps’ jurisdiction invoked, because water courses through the washes and arroyos of the arid development site during periods of heavy rain. The desert washes are considered navigable waters, and therefore fall under the jurisdiction of the federal government. See 33 C.F.R. § 328.3 (a)(3).

At some point, a non-profit environmental organization, Save Our. Sonoran (“SOS”), became aware of the project. It was not, shall we say, the beginning of a beautiful friendship. SOS eventually filed this action against the Corps and Lone Mountain, alleging…