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

Article excerpt

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. …