How does the "least adverse impact" requirement limit the Corps of Engineer's discretion in approving a 404 permit? Johnson v. U.S. Army Corps of Engineers, 6 F. Supp.2d 1105 (D.Minn. 1998) The Red Lake Band of Chippewa Indians (the "Band"), the United States Bureau of Indian Affairs (the "BIA"), and Pennington County attempted to realign and reconstruct a portion of BIA Route 19, located on the Red Lake Indian Reservation. The Band prepared an environmental assessment ("EA") for the project pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. The stated purpose of the project was to address safety and traffic concerns. The EA identified six alternatives for the site: one no-action, two off-Reservation, and three on-Reservation alternatives. The preferred alternative required the filling of some 30 acres of wetland. Other alternatives would destroy less than one acre of wetland. The District Engineer from the U.S. Army Corps of Engineers issued a permit to the Band to allow construction of the preferred alternative. The plaintiffs were landowners whose land would be severed in two by the project, resulting in disruption of their farming operations. They sought an injunction to stop condemnation proceedings against them that would grant an easement for construction of the project. They also sought an injunction to suspend the permits issued by the Corps of Engineers. U.S. COE regulations implement § 404 prohibit permit issuance if a practicable alternative exists with less adverse impact on wetlands. 40 CFR 230.10. The District Engineer determined that the less-damaging alternatives would not address safety concerns, because those alternatives would not bypass traffic, but would simply upgrade or would intersect the existing road system. Moreover, the alternatives were determined to have an unacceptable impact on the socioeconomic resource, consuming 75 acres of agricultural land and causing considerable loss of income and a higher burden on taxpayers. Accordingly, the Court found that the District Engineer's decision was not arbitrary and capricious. The Court also rejected Plaintiff's argument that permit issuance, delegable to the U.S. CEO Chief of Engineers under the Clean Water Act, could not be redelegated to the District Engineer. In so doing, the Court explicitly rejected the contrary holding in U.S. v. Mango, 997 F. Supp. 264 (N.D.N.Y. 1998).
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