## Facts

- A developer planned a residential subdivision near Bismarck, North Dakota, on the east side of the Missouri River.
- To provide boat access from the subdivision, the developer sought a permit from the U.S. Army Corps of Engineers to reopen and modify an old river channel.
- The work included removing an earthen roadway, dredging and widening the old channel, widening its connection to the Missouri River, and replacing bank stabilization along the river.
- The Corps determined the project would convert about 14.5 acres of wetlands to deep-water habitat.
- The Corps processed the application under § 10 of the Rivers and Harbors Act and § 404(b) of the Clean Water Act, provided public notice, and solicited agency comments.
- Agencies recommended conditioning any permit on mitigation; they raised no further objections after mitigation was proposed.
- The developer proposed enhancing an existing 20-acre wetlands area to provide year-round water and saturated soil conditions.
- The Corps issued an Environmental Assessment, found no significant environmental impact, and issued a permit with 42 conditions, including the required 20-acre mitigation enhancement.
- The Corps defined the project’s purpose as providing boat access to the Missouri River from the planned subdivision and treated the project as water-dependent and site-specific; it rejected other options, including a nearby public boat ramp, as not meeting that purpose.
- An environmental organization and a neighboring landowner sued to stop the permit; the district court denied interim relief and entered summary judgment for the Corps and other defendants, and only the landowner appealed.

## Issues

1. Whether the Corps acted arbitrarily or capriciously under the APA in defining the project purpose as boat access from the specific development and treating the project as water-dependent and site-specific.
2. Whether the Corps complied with the Clean Water Act § 404(b)(1) guidelines by adequately evaluating practicable alternatives that would avoid or reduce wetland impacts, including use of an existing public boat ramp.
3. Whether the Corps violated NEPA by issuing a FONSI and declining to prepare an Environmental Impact Statement despite the wetland conversion.

## Decision

- The Eighth Circuit affirmed summary judgment for the Corps and upheld the permit.
- The court held the Corps reasonably defined the project purpose by considering the applicant’s legitimate objectives and did not act arbitrarily in concluding the project was water-dependent and site-specific.
- The court held the Corps’ § 404(b)(1) alternatives analysis was adequate given the defined purpose and the record’s discussion of no-action and design-related alternatives.
- The court held the Corps reasonably rejected the public boat ramp as a practicable alternative because it did not provide direct access from the subdivision.
- The court held the Corps’ FONSI and decision not to prepare an EIS were not arbitrary or capricious where the EA evaluated environmental effects and the permit required mitigation conditions.

## Legal Principles

- Under APA review, a court asks whether the agency considered relevant factors and articulated a rational connection between the record and its decision; technical judgments in environmental permitting receive substantial deference.
- In applying Clean Water Act § 404(b)(1), the Corps may define a project’s basic purpose with reference to an applicant’s legitimate objectives; the scope of “practicable alternatives” is assessed in light of that purpose.
- An alternatives analysis is sufficient when the agency meaningfully considers reasonable options (including no-action and less-damaging configurations) and explains why alternatives would not meet the project purpose.
- Under NEPA, an agency may issue a FONSI without an EIS when an Environmental Assessment supports a reasoned conclusion that impacts are not significant, including consideration of permit conditions and mitigation measures.

## Conclusion

The court upheld the Corps’ issuance of a wetlands permit because the Corps reasonably framed the project purpose around subdivision-specific boat access, adequately evaluated practicable alternatives under § 404(b)(1), and reasonably found no significant impact under NEPA based on the Environmental Assessment and mitigation conditions.


Nat'l Wildlife Fed'n v. Whistler, 27 F.3d 1341 (8th Cir. 1994)