ELR Citation: ELR 20144
No(s). 09-15363 (9th Cir. Jun 1, 2010)

The Ninth Circuit upholds the U.S. Army Corps of Engineers' and the FWS' approval of a business park construction project on protected wetlands in California. The Corps' decision to issue a city a CWA §404 permit for the project was not arbitrary or capricious. The Corps stated a rational connection between the facts found and the conclusion that the proposed site was the least environmentally damaging practicable alternative. After acknowledging that the proposed project was not water dependent, the Corps reasonably concluded, based on a review of over a dozen alternative sites, that the city had "clearly demonstrated that there are no practicable alternative sites available." In addition, the Corps' consideration of the project's stated purpose was not unreasonable, and the Corps did not improperly rely on the city's proposed off-site mitigation as part of its analysis. Likewise, the FWS’ finding of no "adverse modification" was neither arbitrary nor capricious.