National Wildlife Federation v. Whistler

The Turnbow Development Corporation (Turnbow) (defendant) sought to provide water access to a planned residential development near the Missouri River. The residential development was to be located on uplands near the river. Turnbow requested a permit from the United States Army Corps of Engineers (the corps) (defendant) pursuant to § 404 of the Clean Water Act to convert 14.5 acres of wetlands into deep-water habitat to provide the residential development with boat access to the river. The corps found that no other alternative would serve Turnbow’s purpose of providing water access to the residential development. The corps ultimately concluded that issuance of the permit did not conflict with the public interest and that the project involved no significant impact on the environment. Thus, the corps issued Turnbow a permit subject to a requirement that Turnbow complete enhancements to a 20-acre mitigation area prior to any construction in the wetlands. The corps did not consider the residential development to be part of the project for which Turnbow sought a permit because it was not located on wetlands and did not require a permit to proceed with construction. The corps acknowledged the existence of a public boat ramp nearby, but the corps dismissed use of the public ramp as inadequate. The National Wildlife Federation and Michael Donahue (plaintiffs) filed suit in the district court, requesting a temporary restraining order and preliminary injunction to suspend the permit. The district court denied the requests and granted summary judgment in favor of the corps, finding that the corps did not act arbitrarily and capriciously and that no other properties were suitable to provide the residential lots with boat access to the river. Donahue appealed, arguing that the corps did not perform an adequate analysis of alternatives and failed to consider the use of the public boat ramp for water access.