Wetlands protection through impact avoidance: A discussion of the 404(b)(1) alternatives analysis
Abstract
In order to receive a Department of Army permit to discharge dredged or fill material into “waters of the United States,” including wetlands, a permit applicant may have to clearly demonstrate that the proposed discharge is unavoidable and the least environmentally-damaging practicable alternative. Failure to do so as required under EPA’s 404(b)(1) Guidelines (40 CFR 230) may result in permit denial. Generally, the practicable alternative that involves the least amount of filled “waters” will be considered the least damaging; practicable alternatives that avoid “special aquatic sites” such as wetlands are always presumed to be less damaging environmentally than those that do not. “Practicable” alternatives are not unreasonably costly, but may produce less return on investment than is desired by the permit applicant. Such alternatives are considered available if they are owned by the applicant or if they can be obtained, utilized, expanded, or managed during the planning and permitting phases of the proposed project. In order for the analysis of alternatives to be useful to the permitting process, the project purpose must be defined generically, and separate analyses may be required for each component of a multiple-purpose project. The geographic scope of analysis must remain broad enough to reasonably consider all environmentally-preferable sites where the basic project purpose could be achieved. We conclude that an alternative analysis, performed properly and early in the project formulation stage can reduce project costs, increase certainty, and most importantly, result in avoidance and protection of valuable wetland resources.
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Yocom, T.G., Leidy, R.A. & Morris, C.A. Wetlands protection through impact avoidance: A discussion of the 404(b)(1) alternatives analysis. Wetlands 9, 283–297 (1989). https://doi.org/10.1007/BF03160749
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DOI: https://doi.org/10.1007/BF03160749