ELR Citation: ELR 21609
No(s). 93-1729 (8th Cir. Jun 29, 1994)

The court upholds the U.S. Army Corps of Engineers' grant of a Federal Water Pollution Control Act §404 dredge and fill permit to a development company, allowing it to destroy 14.5 acres of wetlands by reopening an old river channel in order to provide boat access to a planned residential development. The Corps conditioned the permit on the enhancement of a 20-acre mitigation area. The court first holds that the Corps properly considered the availability of other alternatives to the proposed project, including a local public boat ramp, that the Corps dismissed as inadequate. The court next holds that the Corps properly defined the purpose of the project as water-dependent. Although the residential development itself was on uplands and did not require a §404 permit, the Corps limited its analysis of the project to the provision of boat access. The court holds that the project, so defined, is clearly water-dependent. The court holds that the Corps' findings that the project, as modified to include the mitigation site, resulted in little or no net loss to the nation's wetlands and that the housing development would proceed even without the creation of water access were not arbitrary and capricious.

Counsel for Plaintiff
Lyle H. Moe
P.O. Box 269, Grand Forks ND 58206
(701) 795-5100

Counsel for Defendants
John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before MORRIS SHEPPARD ARNOLD, Circuit Judge, JOHN R. GIBSON,^* Senior Circuit Judge, and BARTLETT,^** District Judge.