Practicable Alternatives for Wetlands Development Under the Clean Water Act
| Date | 01 October 2018 |
| Author |
48 ELR 10894 ENVIRONMENTAL LAW REPORTER 10-2018
Practicable
Alternatives for
Wetlands
Development
Under the Clean
Water Act
by Daniel R. Mandelker
Daniel R. Mandelker is the Stamper Professor of
Law at Washington University in Saint Louis.
Summary
Section 404(b) of the Clean Water Act authorizes a
“practicable alternatives” requirement for dredge and
ll permits. EPA has adopted guidelines that set out
and interpret that requirement, but the U.S. Army
Corps of Engineers has substantial discretion in
deciding its application to specic sites, and there can
be signicant variation in practice. is Article exam-
ines the practicable alternatives requirement, includ-
ing comparisons with similar requirements in federal
law; discusses other federal, state, regional, and local
requirements that intersect with and shape the §404
process; and analyzes how practicable alternatives and
other CWA requirements can be met. It makes rec-
ommendations for revising the practicable alternatives
requirement, process, and decision criteria to improve
its role in protecting wetlands resources.
A
major homebuilder has propose d a master-pla nned
community for an attractive nat ural area.1 Due dil-
igence discovered that part of the site is a designated
wetland . e homebuilder obtained a rezoning under the
local zoning ordinance, but rea lized she may also need a
§404 permit under the Clean Water Act (CWA)2 to move
forward,3 which is granted by the U.S. Army Corps of
Engineers (the Corps). Getting a permit can take up to one
year or more, and guidelines adopted under the Act require
the homebuilder to accept a “practicable alternative.”4 is
requirement was not welcome. e homebuilder looked at
the market and chose a site that best t her project. After
much discussion and analysis, she wa s allowed to reject
alternate sites as impracticable. However, she agreed to on-
site design changes that avoided and minim ized the proj-
ect’s impact on wetlands, such as the relocation of roads
and design modicat ions.
Another family owns a lot adjacent to a river that is
partly a wetland. ey want to build a home on the lot,
Author’s Note: Some statements in this Article are based on telephone
interviews. Persons interviewed are identied when permission was
given. Aaron Allen, Jon Devine, Douglas M. Garman, Robert Kuehn,
Ronald Levin, Dwight Merriam, David B. Olson, Nancy Stroud,
and Edward Sullivan reviewed the Article and provided helpful
comments. I would like to thank Kathie Molyneaux, interlibrary
loan assistant, Access Services, Washington University Law School for
her help in nding resources. I would also like to thank Dean Nancy
Staudt and the law school for their nancial support of my research
on this Article. Statutes and regulations cited in this Article were
current as of the date of publication.
1. See T L ., RCLCO, T V I B T: T T-
S M-P C 2017 (2018) (“Overall, home
sales at the nation’s 50 top-selling master-planned communities (MPCs)
surpassed 2016 totals by over 17%.”), available at http://www.rclco.com/
advisory-mpc-survey-2017-year-end-2018-01-04; Daniel R. Mandelker,
New Perspectives on Planned Unit Developments, 52 R P. T. P.
L.J. 229 (2017); F C W A S 404()(1) G
E N R F C’ N
R R M D P [hereinaf-
ter N R P] (on le with author). See Friends of the Santa
Clara River v. U.S. Army Corps of Eng’rs, 887 F.3d 906, 48 ELR 20054
(9th Cir. 2018) (upholding practicable alternatives analysis for Newhall
Ranch project).
called the §404 permit after the section of the bill in which it appeared. e stat-
ute does not contain criteria that determine whether a permit should be issued.
3. e project may or may not be in a wetland that requires a federal per-
mit from the Corps. e Corps denes “wetlands” in 33 C.F.R. §328.3(b)
as: “ose areas that are inundated or saturated by surface or groundwater
at a frequency and duration sucient to support, and that under normal
circumstances do support, a prevalence of vegetation typically adapted for
life in saturated soil conditions .. . Wetlands generally include swamps,
marshes, bogs, and similar areas.” See J K, C Q:
W D, D, M, available at https://
www.aswm.org/pdf_lib/14_mapping_6_26_06.pdf; U.S. A C
E, C E W D M
(2013).
4. 40 C.F.R. §230.10(a) (2018).
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
10-2018 NEWS & ANALYSIS 48 ELR 10895
but are told they must move it to an upland location on the
lot that avoids discharges of ll materia l into the wetlands,
eliminating the need to obtain a §404 permit. eir archi-
tect did not see this request as a problem, and they made
the change.
ese two cases a re outermost examples of how the
practicable alternatives requirement works.5 ough it can
require o-site alternatives to avoid damage to wetlands, a
change in project location does not usually occur, as the
master-plan ned community exa mple indicates. More ty pi-
cal is a conditioned development approval that requires
on-site project changes to avoid and minimize impacts to
wetlands, which occurred in both examples.
is application of the §404 practicable alternatives
requirement occurs because of program features that give
the Corps substantial discretion in deciding how it should
be applied. Criteria for deciding when alternatives are
required are contained in a complex and scattered set of
incomplete and conict ing regu lations, memoranda, regu-
latory guidance letters (RGLs), and cases elevated to Corps
headquarters for decision. Many of these documents are
unpublished a nd dicult to nd.
Especially absent is gu idance on how to deal with dierent
types of projects and the alternative s they require. e inclu-
sion of cost as a factor to consider allows the Corps to reject
alternatives that would have a less dama ging environmental
impact if costs to the developer are excessive. Applica nts must
also prepare a purpose and need statement for their project,
and Corps practice, approved by the courts, often considers
statements based on an applicant’s general project objectives
when developing the overall project purpose for the §40 4(b)
(1) alternatives analysis. is concession narrows the scope of
any project alternatives that have to be considered.
Another important factor is Corps gu idance, also upheld
by the courts, that al lows it to decide whether a permit
applicant is entitled to a full evidentiar y hearing. Permit
applications are usually reviewed in an informal process
that allows courts to take a deferential view of Corps deci-
sions. Courts provide only limited guidance on the a lter-
natives requirement, and Corps decisions are upheld in
almost all ca ses.
Part I of this Article provides background by discuss-
ing alternatives requirements in other federal environmen-
tal legislation that the U.S. Congress adopted before this
requirement appeared in the CWA. Part II discusses the
§404 permit and the practicable alternatives requirement
under the CWA. Part III discusses other federal legislation
that applies to §404 permits, such as the National Envi-
5. A §404 permit is also required for public projects, such as roads and high-
ways, but this Article concentrates on the permit requirement as it applies
to private development.
ronmental Policy Act (NEPA),6 and federal legislation that
delegates authority to states they can apply to §404 per-
mits, such as state water quality certications.
Part IV considers compliance with state, regional, and
local planning a nd land use regulation. Part V discusses t he
permit application review process, while Part V I explains
the requirement that applicants must provide a purpose
and need statement for their project. Part VII discusses
how the practicable alternatives requirement is applied,
while Part VIII reviews the “signicant degradation” and
“public interest” requirements that must also be met before
a permit can issue. Part IX concludes.
When reading this Article, it will be helpful to keep in
mind that the Corps has t he authority to apply the practi-
cable alternatives requirement when it reviews applications
for §404 permits. e Corps applies guidelines for this
requirement adopted by the U.S. Environmental Protec-
tion Agency (EPA), but EPA does not have decision author-
ity though the Corps may consult it and other agencies on
permit applications. e rst step in applying the practi-
cable alternatives requirement is to decide on the project
purpose, which determines the alternatives that must be
considered. Deciding whether the project is water-depen-
dent is the next step, which determines whether presump-
tions apply that can make alternatives practicable. e
practicable alternatives requirement is applied once these
decisions are made, and the Corps then applies signicant
degradation and public interest tests also contained in the
regulations. Compliance with other federa l laws must be
satised during this process. ese concepts and require-
ments are explained in the sections that follow.
I. The Alternatives Requirement in
Federal Environmental Legislation
A requirement that a developer must consider alterna-
tives to a proposed development is a new concept that rst
appeared in federal environmental legislation. It does not
usually exist in zoning. A business that ask s for a rezoning
does not have to show that alternate locations are practica-
ble.7 Other issues dominate this decision, such as compli-
ance wit h the loca l comprehensive plan.
Congress rst adopted an environmental statute with an
alternatives requirement in 1968. It demands the selection of
6. 42 U.S.C. §§4321-4370h, ELR S. NEPA §§2-209.
7. Land use regulations subject to free speech limitations may be an exception.
ey must satisfy the U.S. Supreme Court’s time, place, and manner re-
quirement by showing that a regulation leaves open “ample alternative chan-
nels for communication.” D R. M, F S L
P S §2:7(1) (2016 & Supp. 2017), available at http://law.
wustl.edu/landuselaw/Articles/Handbook%202016%20Clean.pdf. Other
federal statutes that aect local land use regulation may also require con-
sideration of alternatives. E.g., Telecommunications Act of 1996, 47 U.S.C.
§332(c)(7)(B).
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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