You can make the permitting process easier by first taking time to consider how your project will impact waters of the United States, and then finding alternatives to avoid, minimize or compensate for those impacts. An alternatives analysis may be a required as a part of the Corps’ review. But whether it’s a formal report or information provided in the application form, the design stage is the best time to identify alternatives in order to avoid or minimize impacts to waters of the United States, while still meeting your project’s purpose.
The alternatives analysis is documentation that explains the range of alternatives that you have considered. It describes alternative sites and project designs that were considered to avoid or minimize impacts to waters of the United States. This analysis should include alternative designs with less impact and reasons why the alternatives were not chosen.
This is a requirement under the National Environmental Policy Act and Section 404(b)(1) Guidelines of the Clean Water Act for projects that would involve placing dredge or fill material into waters of the United States.
What the 404(b)(1) Guidelines say about alternatives:
“No discharge of dredged or fill material shall be permitted if there is a practicable [Definition] (rollover definition: Practicable: If it is available and capable of being done after considering cost, existing technology, and logistics in light of overall project purpose (40 CFR 230.10(a)).) 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.” (40 CFR 230.10(a))
Where does this fit into the permit process?
Nationwide Permits: If your project fits under a nationwide permit you don’t have to complete a detailed alternatives analysis. However, you still must also comply with the General Condition for Mitigation that requires:
- You design and construct your project to minimize adverse effects to Waters of the United States
- You incorporate avoidance, minimization, and compensation measures to the extent necessary to ensure adverse effects are minimal
Individual Permits: An alternatives analysis is a requirement of National Environmental Policy Act for all permits and a requirement of the Section 404(b)(1) Guidelines for Section 404 permits. The Section 404(b)(1) Guidelines prohibit discharges into aquatic areas where less environmentally damaging, practicable alternatives exist. If the alternatives analysis does not clearly demonstrate that your project is the least environmentally damaging practicable alternative (LEDPA), then your permit must be denied by the Corps.
Appropriate level of analysis in the documentation
The level of detail and documentation is flexible depending on the project, but should reflect the significance and complexity of the discharge activity. The level of scrutiny should be commensurate with the severity of the environmental impact as well as the scope and cost of the project. The burden of proof to demonstrate compliance with Section 404(b)(1) Guidelines rests with the applicant. If there is not sufficient information to clearly demonstrate compliance, the permit will be denied (40 CFR 230.12(a)(3)(iv)).
Consideration of small landowners (RGL 95-01)
(Rollover definition: Regulatory Guidance Letter 95-01: Regulatory Guidance Letters provide practical guidance and interpretation from HQ on how to interpret or implement policy that may be unclear. Regulatory Guidance Letters are used only to interpret or clarify existing Regulatory Program policy, but do provide mandatory guidance to the Corps Districts. Regulatory Guidance Letters are sequentially numbered and expire on a specified date. However, unless superseded by specific provisions of subsequently issued regulations or Regulatory Guidance Letters, the guidance provided in the Regulatory Guidance Letters generally remains valid after the expiration date. These can be found on the HQ website under Regulatory Guidance Letters.)
The Corps presumes that off-site alternatives located on property not currently owned by the applicant are not practicable for the following types of small landowners:
- single family home
- expansion of a barn or farm building
- expansion of a small business facility
However, these small land owners still must minimize impacts and compensate if appropriate. Some factors to consider in the alternatives analysis include:
- Project purpose
- Acreage needed for proposal
- Utilities, including cost
- Infrastructure, including cost
- Water dependency [Definition] (Rollover definition: Water Dependency: Examples of water dependent activities: marina and/or boat dock construction or wetland restoration. Examples of activities that are NOT water dependent: housing developments or roads.)
- Availability of alternative sites
Reasons a proposal might not comply with the 404(b)(1) Guidelines
- Feasible alternatives with less adverse impact on the aquatic ecosystem exist
- he project significantly degrades the aquatic ecosystem
- The application does not include all appropriate and practicable measures to minimize harm to the aquatic ecosystem
- Violates state water quality standards
- Jeopardizes the continued existence of a species listed under the Endangered Species Act
- Insufficient information to make a determination