The steepest hurdle in obtaining a Clean Water Act section 404 permit: complying with EPA's 404(b) (1) guidelines' least environmentally damaging practicable alternative requirement.

• Author: Schutz, Jon

I.

INTRODUCTION

To construct any project involving the discharge of dredged or fill material into U.S. waters, one must obtain a 404 permit from the United States Army Corps of Engineers (Corps). An applicant for a 404 permit must demonstrate to the Corps that, among other things, the proposed project is the least environmentally damaging practicable alternative (LEDPA) to achieve the project's purpose. To determine the LEDPA, an applicant conducts a 404(b)(1) Alternatives Analysis. Though the LEDPA determination is only one of many determinations the Corps will make for a project and that the applicant must pass, the LEDPA determination is often the "steepest hurdle" in obtaining a 404 permit. (1) Practitioners should be aware that where a proposed project is not the LEDPA, the Corps may not approve the project or grant the applicant a 404 permit. In other words, the LEDPA determination can be fatal to the project.

This article explains how the Corps determines whether an applicant's project is the LEDPA. Because the LEDPA is one determination among many that the Corps will make in deciding whether a project is in the public interest and complies with the 404(b)(1) Guidelines, this article also explains the context in which the LEDPA review is undertaken. A flow chart of the LEDPA determination process is included as Appendix 1.

II.

404(B)(1) GUIDELINES COMPLIANCE

Section 404 of the Clean Water Act (CWA) requires a permit for the discharge of "dredged or fill materials" into "waters of the United States." (2) Therefore, a permit to discharge dredged or fill materials into waters of the U.S. is referred to as a 404 permit. (3) To issue a 404 permit, the Corps must ensure, among other things, that the activity complies with the U.S. Environmental Protection Agency's (EPA) 404(b)(1) Guidelines, set out in 40 C.F.R. section 230. (4) The purpose of the Guidelines is "to restore and maintain the chemical, physical, and biological integrity of waters of the United States through the control of discharges of dredged or fill material." (5) The project applicant is required to prepare a 404(b)(1) analysis to provide the Corps with the necessary information to determine whether the Guidelines have been followed. (6) Such an analysis is required for water and non-water-dependent projects, but certain presumptions will apply to non-water-dependent projects, discussed below. (7) The amount of information necessary to make this determination is commensurate with the level of the project's impacts--more information is required for large and complex projects. (8)

The 404(b)(1) Guidelines are the substantive criteria the Corps will use in determining a project's environmental impacts on aquatic resources from discharges of dredged or fill material. (9) The Guidelines are binding regulations, meaning a project that does not comply with these guidelines will be denied a 404 permit. (10) If the project does comply with the Guidelines, a permit will be granted "unless issuance would be contrary to the public interest." (11) While the Guidelines are binding, they are also inherently flexible, leaving room for judgment in determining compliance on a case-by-case basis. (12)

The 404(b)(1) Guidelines establish four prerequisites to approval, one of which, the basis for the LEDPA requirement, requires that there are no practicable alternatives to the proposed discharge that would have a less adverse effect on the aquatic environment. (13) Noncompliance with this requirement is a sufficient basis for the Corps to deny the project permit. (14) The LEDPA determination is thus most important of the four prerequisites for determining compliance with the Guidelines. (15)

The 404(b)(1) Guidelines compliance process will be managed by the Corps and the Corps will make all final permit decisions including whether the Guidelines have been satisfied; EPA and other resources agencies usually comment on the Corps' public notice. (16) However, EPA, the Department of the Interior (Interior), and other resource agencies may become very involved in the 404(b)(1) compliance process pursuant to memoranda of agreement between the Corps and EPA and the Corps and Interior. (17) For example, EPA and Interior are encouraged to participate in preapplication meetings with the applicant; (18) EPA or Interior may elevate a Corps decision; (19) and the Corps must fully consider EPA's and Interior's comments when determining whether the applicant has complied with the 404(b)(1) Guidelines, whether to issue a permit, and what conditions should be placed on the permit. (20) EPA involvement early in the 404(b)(1) Guidelines compliance process may be advantageous for a project applicant because the applicant can address EPA's concerns early in the review process. (21)

III.

LEDPA DETERMINATION

40 C.F.R. section 230.10(a), the basis for the LEDPA determination, states that, except as provided in CWA section 404(b)(2), (22) a permit will not be issued "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." (23) The LEDPA requirement is an attempt to avoid environmental impacts instead of mitigating them; "if destruction of an area of water of the United States may be avoided, it should be avoided." (24) The Corps may only approve a project that is the LEDPA. (25) The LEDPA involves two separate determinations; it must be both practicable and the least environmentally damaging. The LEDPA requirement's purpose is "avoiding significant impacts to the aquatic resources and not necessarily providing either the optimal project location or the highest and best property use." (26) EPA Region IX feels that the LEDPA analysis functions most effectively when it is applied by the project applicant to the project early in the permitting process. (27) EPA believes that the LEDPA requirement compels a project applicant to evaluate non-aquatic sites or less environmentally damaging aquatic site alternatives regardless of whether a project is water dependent or proposed for a special aquatic site. (28) The LEDPA determination functions to identify and rank project alternatives; the LEDPA requirement "prohibits discharges if avoidance is practicable and sets the order of development between competing sites. (29)

To determine the LEDPA, the project applicant is required to generate a list of alternatives, including the proposed project, from which the LEDPA will be determined. (30) This process of identifying alternatives and determining the LEDPA is commonly called the "404(b)(1) Alternatives Analysis." (31) The list of alternatives from which the LEDPA is selected is created after the basic purpose of the project is identified because only alternatives that meet the project's basic purpose need be considered. (32) All alternatives that achieve "the basic project purpose practicably should be considered." (33) The geographic scope of the alternatives considered will in most cases be determined by the basic purpose of the project and will include areas typically considered in the particular industry. (34) If the list of alternatives is inadequate the Corps may require the applicant to expand its analysis. (35)

The applicant will also establish specific criteria to use in determining the practicability of the alternatives and eliminating the non-practicable alternatives--those that do not meet the screening criteria. (36) The Corps will review the applicant's screening criteria and document how the criteria were developed and utilized. (37) The criteria allow the Corps to justify why some alternatives are practicable and others are not. The alternatives analysis must be fair, balanced, and objective, "and not used to provide a rationalization for the applicant's preferred result (i.e., that no practicable alternatives exist)." (38)

The project applicant must provide sufficient evidence to the Corps demonstrating that the proposed project is the LEDPA and that all impacts to the selected site have been avoided to the extent practicable. (39) The applicant bears the burden of demonstrating to the Corps that no less environmentally damaging practicable alternative is available and that the project complies with the 404(b)(1) Guidelines. (40) The Corps will determine whether the LEDPA has been selected. (41)

1. Practicability Determination and Presumption

   Only practicable alternatives to the proposed project need be considered in determining the LEDPA. (42) An alternative is practicable where "it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." (43) The Corps will determine whether practicable alternatives are available. (44)

   1. "Overall Project Purpose" and "Basic Project Purpose"

      An alternative is only practicable if it capable of being done taking into consideration the overall project purpose. Region IX opines that "overall project purpose" means the "basic project purpose plus consideration of costs and technical and logistical feasibility." (45) Overall project purpose does not include secondary project purposes, site-specific secondary requirements, project amenities, desired size requirements, or desired return on an investment. (46) For example, EPA disallowed a proposed dam's proposed project purpose which included flow releases for the enhancement of downstream fish habitat. (47) EPA also disallowed a proposed dam's proposed overall project purpose to capture run-off in the specific stream where the dam was to be constructed. (48) EPA disallowed each project's stated overall project purpose because to accept them would preclude an analysis of otherwise legitimate options. (49)

      A project's "basic purpose" is its generic purpose or function. (50) The Corps will define the basic purpose, not the project...