CHAPTER 15 LEDPA: THE LEAST ENVIRONMENTALLY DAMAGING PRACTICABLE ALTERNATIVE UNDER SECTION 404(B)(1) OF THE CLEAN WATER ACT

• Jurisdiction: United States

Federal Regulation of Cultural Resources, Wildlife & Waters of the U.S.
(Apr 2012)
CHAPTER 15
LEDPA: THE LEAST ENVIRONMENTALLY DAMAGING PRACTICABLE ALTERNATIVE UNDER SECTION 404(B)(1) OF THE CLEAN WATER ACT
Joan E. Drake
Modrall Sperling
Albuquerque, New Mexico

JOAN DRAKE is an attorney with Modrall Sperling in Albuquerque. Prior to her legal career, Joan was a regulatory and environmental specialist for fourteen years with the US Army Corps of Engineers in the Los Angeles District and New England Division. Joan now advises clients on NEPA and Clean Water Act compliance and related federal permitting matters. Joan also advises clients on public utility and transmission issues.

By

Joan E. Drake

Modrall Sperling

P.O. Box 2168

Albuquerque, NM 87103-2168

(505) 848-1850

jdrake@modrall.com

This paper reviews the regulatory requirements for consideration of alternatives under Section 404 of the Clean Water Act ("CWA" or "Act"), 13 U.S.C. § 1344 . The paper describes the regulatory guidelines that govern the alternatives evaluation for issuance of Section 404 permits, and explains the various factors that comprise the alternatives evaluation and how those factors have been applied in various permitting situations and by courts, particularly in the context of mining,

I. Section 404 Permits and the 404(b)(1) Guidelines

Section 404 requires issuance of a permit from the U.S. Army Corps of Engineers ("Corps") prior to discharge of dredged or fill material in waters of the United States.¹ Section 404(b)(1) of the Act requires the U.S. Environmental Protection Agency ("EPA") to develop guidelines to be applied in the specification of each "disposal site." 13 U.S.C. § 1344(b)(1) . The EPA's Guidelines for the Specification of Disposal Sites for Dredged or Fill Material (the "Guidelines") are found at 40 C.F.R. Part 230.² The Guidelines establish substantive standards

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for evaluation of alternatives to a proposed discharge.³ In most circumstances, non-compliance with the Guidelines results in permit denial or project modification.⁴

The Guidelines' fundamental precept is that dredged or fill material should not be discharged into waters of the U.S. unless it can be demonstrated that such a discharge will not result in unacceptably adverse effects, either individually or cumulatively, to the aquatic ecosystem. Further, a guiding principle is that degradation or destruction of aquatic sites with special functions and values may represent an irreversible loss of valuable aquatic resources that should be avoided. 40 C.F.R. §§ 230.1(c) and (d). The Guidelines' alternatives evaluation applies those principles but also takes the applicant's objectives into account, essentially requiring "a balancing of the applicant's needs and environmental concerns." Fund for Animals, Inc. v. Rice, 85 F.3d 535, 543 (11th Cir. 1996).

While EPA's Preamble to 1980 rulemaking on the Guidelines ("Preamble") notes, "Congress contemplated that discharges could be 'prohibited' by the Guidelines," it also notes EPA intends a certain amount of flexibility in application of the Guidelines as well as reliance on agency judgment based on the general criteria established in the Guidelines, to determine compliance in individual permitting situations. See Preamble, 45 Fed. Reg. 85336 (December 24, 1980). That provision implicitly recognizes that, while Congress tasked the EPA with development of the Guidelines to be applied in the permitting process, it also delegated permit issuance authority to the Corps and anticipated the Corps would employ its own discretion in applying the Guidelines and in making permitting decisions. Nevertheless, Section 404(c) provides EPA veto authority over permit issuance in certain circumstances, which authority EPA has exercised on several occasions.⁵ This paper discusses relevant examples of EPA's Section

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404(c) veto actions and high-level pre-permit issuance coordination between the Corps and EPA under Section 404(q) ("Elevations") regarding the Guidelines' alternatives requirements.⁶

II. The LEDPA Requirement

The Guidelines prohibit discharges of dredged or fill material "if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences." 40 C.F.R. § 230.10(a) (emphasis added). This is known as the Least Environmentally Damaging Practicable Alternative, or "LEDPA." Under the Guidelines, the Corps may only authorize the LEDPA. The LEDPA has three components: (1) it must be practicable, (2) there must not be another practicable alternative that would have less adverse impact on the aquatic environment, unless (3) other practicable alternatives would have other significant adverse environmental consequences. An alternative is "practicable" if it is "available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." 40 C.F.R. § 230.10(a)(2) (emphasis added). Further, the Guidelines take into consideration whether the proposed activity needs to be located in waters of the U.S., and establishes two rebuttable presumptions that recognize the relative sensitivity and importance of wetlands and other special aquatic sites.⁷

Each of these components is discussed further below. Because of the importance of project purpose in setting the appropriate range of alternatives to be considered and determining whether those alternatives are practicable, that component is discussed first. The notion of "water dependency" of a proposed discharge is discussed because it is determinative of whether certain rebuttable presumptions apply in the LEDPA analysis. The paper then reviews each of the practicability and the environmental impact factors, and discusses how these are assessed in the LEDPA determination.

A. Basic Project Purpose and Overall Project Purpose

The first step in the process of determining the LEDPA is the establishment of the project purpose. This is a key consideration in setting the range of alternatives that must be examined and the presumptions that apply to the LEDPA determination. The Guidelines require the Corps to consider practicability in light of "overall project purposes." 40 C.F.R. § 230.10(a)(2). That

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same subsection provides that an area that could reasonably be obtained to fulfill the "basic project purpose" should be considered. The Guidelines do not define either of those terms, and that has led to some confusion. However, the Corps and EPA have provided guidance on the difference between the two terms and how they are to be applied. The basic project purpose is broadly defined and is used to determine whether a project is water dependent and therefore subject to limiting presumptions regarding practicable alternatives. The overall project purpose is more narrowly defined to reflect the applicant's project purpose and is used to determine practicability. The Corps is responsible for establishing both the basic project purpose and the overall project purpose.

1. Basic Project Purpose. Water Dependency, and Rebuttable Presumptions.

The "basic project purpose" defines the project purpose in broad and simple terms, with the objective of determining whether the proposed activity is "water dependent."⁸ That is important in determining whether two rebuttable presumptions apply to the LEDPA analysis.

Where the activity is proposed to be located in a special aquatic site, the Guidelines require the Corps to determine whether the activity is "water dependent." A proposed activity is "water dependent" if it requires access or proximity to or siting within a special aquatic site to fulfill its "basic purpose." 40 C.F.R. § 230.10(a)(3). Examples of water dependent projects include dams, marinas, mooring facilities, and docks, because the basic purpose of these projects is to provide access to water. See Corps Regulatory SOP, § 8.

If the project is not water dependent, the Corps presumes: (1) practicable alternatives that do not involve special aquatic sites are available, and (2) all practicable alternatives that do not involve a discharge to a special aquatic site have less adverse impact on the aquatic environment. 40 C.F.R. § 230.10(a)(3). Both presumptions are rebuttable in that they apply "unless clearly demonstrated otherwise." 40 C.F.R. § 230.10(a)(3). Once a project proposing fill in a special aquatic site is determined to be non-water dependent, the burden shifts to the applicant to rebut the presumptions and clearly show that less damaging practicable alternatives do not exist.

EPA's Preamble to the Guidelines 1980 rulemaking ("Preamble") identifies fill for a restaurant site as an example of a non-water dependent project, "since restaurants do not need to be in wetlands to fulfill their basic project purpose of feeding people." 45 Fed. Reg. 85336, 85339. The Corps points to fill for residential development as an example of a non-water dependent project, since "the purpose of a residential development is to provide housing for people. Houses do not have to be located in a special aquatic site to fulfill the basic project purpose of the project, i.e., providing shelter. Therefore, a residential development is not water dependent." Corps Regulatory SOP, § 8. If a proposed project is non-water dependent, the EPA and Corps presume less damaging practicable alternatives that do not involve special aquatic

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sites are available to the applicant unless clearly demonstrated otherwise. "In the case of such activities, it is reasonable to assume there will generally be a practicable site available upland or in a less vulnerable part of the aquatic ecosystem." Preamble, 45 Fed. Reg. 85336, 85339.

The applicant may rebut the presumptions upon a clear showing that less damaging practicable alternatives...