Practicable Alternatives for Wetlands Development Under the Clean Water Act

• Date: 01 October 2018

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 specic sites, and there can

be signicant 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 proposed a master-planned

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 realized 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 was allowed to reject

alternate sites as impracticable. However, she agreed to on-

site design changes that avoided and minimized the proj-

ect’s impact on wetlands, such as the relocation of roads

and design modications.

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 identied 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. SeeT 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).

2. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607. Section 1344 is

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 denes “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 sucient 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.” SeeJ 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 are 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-planned community example indicates. More typi-

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 conicting regu lations, memoranda, regu-

latory guidance letters (RGLs), and cases elevated to Corps

headquarters for decision. Many of these documents are

unpublished a nd dicult to nd.

Especially absent is gu idance on how to deal with dierent

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 damaging 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 §404(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 allows it to decide whether a permit

applicant is entitled to a full evidentiary 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 alter-

natives requirement, and Corps decisions are upheld in

almost all cases.

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 certications.

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 VI 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 “signicant 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 the 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 signicant

degradation and public interest tests also contained in the

regulations. Compliance with other federal laws must be

satised 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 asks for a rezoning

does not have to show that alternate locations are practica-

ble.7 Other issues dominate this decision, such as compli-

ance with 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 aect 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.