27 F.3d 1341
SYNOPSIS: Plaintiff environmentalists sought review of the United States District Court for the District of North Dakota's denial of their complaint to enjoin defendant United States government from issuing a permit to provide water access to a planned residential development. The environmentalists argued that the government did not perform an alternatives analysis as required by 40 C.F.R. § 230.10, and that it reached an arbitrary and capricious result.
-The developer sought a permit under § 10 of the Rivers and Harbors Act, 33 U.S.C.S. § 403, and § 404(b) of the Clean Water Act, 33 U.S.C.S. § 1344(b).
-The environmentalists sought to bar construction of a development of docks on wetlands.
-The government accepted the developer's characterization of the overall project as encompassing two severable projects, a housing development on uplands and docks on wetlands.
-The government found that the project, as modified to include the wetland mitigation, resulted in little or no net loss to the nation's wetlands and that the uplands housing development would have proceeded even without the creation of water access.
The court held that the government considered a nearby public boat dock but dismissed it as an inadequate alternative because the developer's docks were a separate project that was clearly water dependant.
Thus, the court held that the government adequately performed the required alternatives analysis. The court held that the government's decision that no practicable alternatives existed and to issue the permit was not arbitrary or capricious.
OUTCOME: The denial of the environmentalists' complaint for injunctive relief was affirmed.
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