United States Environmental Protection Agency
Office of Wetlands, Oceans and Watersheds
Washington, D.C. 20460
: United States Department of the Army
, U.S. Army Corps of Engineers
Washington, D.C. 20314
23 1993
MEMORANDUM TO THE FIELD
SUBJECT: APPROPRIATE LEVEL OF ANALYSIS REQUIRED FOR
EVALUATING COMPLIANCE WITH THE SECTION 404(b)(l)
GUIDELINES ALTERNATIVES REQUIREMENTS
?
1. PURPOSE: The purpose of this memorandum is to clarify the appropriate level of
analysis required fcjr evaluating compliance with the Clean Water Act Section 404(b)(l)
Guidelines' (Guidelines) requirements for consideration of alternatives. 40 CFR 230.10(a).
Specifically, this memorandum describes the flexibility afforded by the Guidelines to make
regulatory decisions based on the relative severity of the environmental impact of proposed
discharges of dredged or fill material into waters of the United States.
2. BACKGROUND: The Guidelines are the substantive environmental standards by which
all Section 404 permit applications are evaluated. The Guidelines, which are binding
regulations, were published by the. Environmental Protection Agency at 40 CFR Part 230 on
December 24, 1980. -The fundamental precept of the Guidelines is that discharges of
dredged or fill material into waters of the United States, including wetlands, should not occur
unless it can be demonstrated that such discharges, either individually or cumulatively, will
not result in unacceptable adverse effects on the aquatic ecosystem. The.Guidelines
specifically require.'that "no discharge of dredged or fill material shall be permitted if there is
a practicable 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). Based on this provision, the applicant is
required in every case (irrespective of whether the discharge site is a special aquatic site or
whether the activity associated with the discharge is water dependent) to evaluate
opportunities for use of non-aquatic areas and other aquatic sites that would result in less
adverse impact on the aquatic ecosystem. A permit cannot be issued, therefore, in
circumstances where a less environmentally damaging practicable alternative for the proposed
discharge exists (except as provided for under Section 404(b)(2)).
3. DISCUSSION: j The Guidelines are, as noted above, binding regulations. It is important
to recognize, however, that this regulatory status does not limit the inherent flexibility
provided in the Guidelines for implementing these provisions. The preamble to the
Guidelines is very clear in this regard:
-------
Of course, as the regulation itself makes clear, a certain amount of flexibility
is still intended. For example, while the ultimate conditions of compliance are
"regulatory*, the Guidelines allow some room for judgment in determining
what must be done to arrive at a conclusion that those conditions have or have
not been met.
Guidelines Preamble, 'Regulation versus Guidelines', 45 Federal Register 85336 (December 24, 1980).
Notwithstanding this flexibility, the record must contain sufficient information to
demonstrate that the proposed discharge complies with the requirements of Section 230.10(a)
of the Guidelines. The amount of information needed to make such a determination and the
level of scrutiny required by the Guidelines is commensurate with the severity of the
environmental impact (as determined by the functions of the aquatic resource and the nature
of the proposed activity) and the scope/cost of the; project.
a. Analysis Associated with Minor Impacts:
The Guidelines do not contemplate that the same intensity of analysis will be required
for all types of projects but instead envision a correlation between the scope of the evaluation
and the potential extent of adverse impacts on the aquatic environment. The introduction to
Section 230.10(a) recognizes that the level of analysis required may vary with the nature and
complexity of each individual case: \
Although all requirements in § 230.10 must be met, the compliance evaluation
procedures will vary to reflect the seriousness of the potential for adverse
impacts on the aquatic ecosystems posed by specific dredged or fill material
discharge activities.
40 CFR 230.10
Similarly, Section 230.6 ("Adaptability") makes clear that the Guidelines:
allow evaluation and documentation for a variety of activities, ranging from
those with large, complex impacts on the aquatic environment to those for
which the impact is likely to be innocuous. \ It is unlikely that the Guidelines
will apply in their entirety to any one activity, no matter how complex. It is
anticipated that substantial numbers of permit applications will be for minor,
routine activities that have little, if any, potential for significant degradation of
the aquatic environment. It generally is not intended or expected that
extensive testing, evaluation or analysis will be needed to make findings of
compliance in such routine cases.
40 CFR 230.6(9) (emphasis added)
-------
Section 230.6 also emphasizes that when making determinations of compliance with
the Guidelines, users:
must recognize the different levels, of effort that should be associated with
varying degrees of impact and require or prepare commensurate
documentation. The level of documentation should reflect the significance and.
complexity 'of the discharge activity.
40 CFR 230.6(b) (emphasis added)
Consequently, the Guidelines clearly afford flexibility to adjust the stringency of the
alternatives review;for projects that would have only minor impacts. Minor impacts are
associated with activities that generally would have little potential to degrade the aquatic
environment and include one, and frequently more, of the following characteristics: are
located in aquatic resources of limited natural function; are small in size and cause little
direct impact; have little potential for secondary or cumulative impacts; or cause only
temporary impacts.; It is important to recognize, however, that in some circumstances even
small or temporary,fills result in substantial impacts, and that in such cases a more detailed
evaluation is necessary. The Corps Districts and EPA Regions will, through the standard
permit evaluation process, coordinate with the U.S. Fish and Wildlife Service, National
Marine Fisheries Service and other appropriate state and Federal agencies in evaluating the
likelihood that adverse impacts would result from a particular proposal. It is not appropriate
to consider compenjsatory mitigation in determining whether a proposed discharge will cause
only minor impactsjfor purposes of the alternatives analysis required by Section 230.10(a).
In reviewing projects'that have the potential for only minor impacts on the aquatic
environment, Corps and EPA field offices are directed to consider, in coordination with state
and Federal resource agencies, the following factors:
i
i) Such projects by their nature should not cause or contribute to significant
degradation Individually or cumulatively. Therefore, it generally should not be
necessary to [Conduct or require detailed analyses to determine compliance with
Section 230. |10(c).
ii) Although sufficient information must be developed to determine whether the
proposed activity is in fact the least damaging practicable alternative, the Guidelines
do not- require an elaborate search for practicable alternatives if it is reasonably
anticipated that there are only minor differences between the environmental impacts of
•:- the proposed activity and potentially practicable alternatives. This decision will be
made after consideration of resource agency comments on the proposed project. It
often makes sense to examine first whether potential alternatives would result in no
identifiable or discernible difference in impact on the aquatic ecosystem. Those
alternatives that do not may be eliminated from the analysis since Section 230.10(a) of
the Guidelines only prohibits discharges when a practicable alternative exists which
-------
would have less adverse impact on the aquatic ecosystem. Because evaluating
practicability is generally the more difficult aspect of the alternatives analysis, this
approach .should save time and effort for both the applicant and the regulatory
agencies.1 By initially focusing the alternatives analysis on the question of impacts
on the aquatic ecosystem, it may be possible to limit (or in some instances eliminate
altogether) the number of alternatives that have to be evaluated for practicability.
Hi) When it is determined that there is no; identifiable or discernible difference in
adverse impact on the environment between the applicant's proposed alternative and
all other practicable alternatives, then the applicant's alternative is considered as
'satisfying the requirements of Section 230.10(a).
iv) Even where a practicable alternative exists that would have less adverse impact
on the aquatic ecosystem, the Guidelines allow it to be rejected if it would have
"other significant adverse environmental consequences." 40 CFR 230.10(a). As
explained in the preamble, this allows for consideration of "evidence of damages to
other ecosystems in deciding whether there is a 'better' alternative." Hence, in
applying the alternatives analysis required toy the Guidelines, it is not appropriate to
select an alternative where minor impacts on the aquatic environment are avoided at
the cost of substantial impacts to other natural environmental values.
v) In cases of negligible or trivial impacts (e.g., small discharges to construct
individual driveways), it may be possible to conclude that no alternative location
could result in less adverse impact on the aquatic environment within the meaning of
the Guidelines. In such cases, it may not be necessary to conduct an offsite
alternatives analysis but instead require only any practicable onsite minimization.
This guidance concerns application of the Section 404(b)(l) Guidelines to projects
with minor impacts. Projects which may cause more than minor impacts'on the aquatic
environment, either individually or cumulatively,;should be subjected to a proportionately
more detailed level of analysis to determine compliance or noncompliance with the
Guidelines. Projects which cause substantial impacts, in particular, must be thoroughly
evaluated through the standard permit evaluation process to determine compliance with all
provisions of the Guidelines.
lln certain instances, however, it may be easier to examine practicability first. Some
projects may be so site-specific (e.g., erosion control, bridge replacement) that no offsite
alternative could be practicable.' In such cases the alternatives analysis may appropriately be
limited to onsite options only.
-------
b. Relationship between the Scope of Analysis and the Scope/Cost of the
Prciposed Proj ect:
The Guidelines provide the Corps and EPA with discretion for determining the
necessary level of analysis to support a conclusion as to whether or not an alternative is
practicable. Practicable alternatives are those alternatives that are "available and capable of
being done after taking into consideration cost, existing technology, and logistics in light of
overall project purposes." 40 CFR 230.10(a)(2). The preamble to the Guidelines provides
clarification on how cost is to be considered in the determination of practicability:
Our intent is to consider those alternatives which are reasonable, fr terms nftk?
overall scope/cost of the proposed protect.' The term economic [for which the term
"cost' was substituted in the final rule] might be construed to include consideration of
the applicant's financial standing, or investment, or market share, a cumbersome
inquiry -which is not necessarily material to the objectives of the Guidelines.
Guidelines Preamble, "Alternatives", 45 Federal Register 85339 (December 24, 1980) (emphasis added).
Therefore, the level of analysis required for determining which alternatives are
practicable will vary depending on the type of project proposed. The determination of what
constitutes an unreasonable expense should generally consider whether the projected cost is
substantially greater than the costs normally associated with the particular type of project
Generally, as the scope/cost of the project increases, the level of analysis should also
increase. To the extent the Corps obtains information on the costs associated with the
project, such information may be considered when making a determination of what
constitutes an unreasonable expense.
The preamble to the Guidelines also states that H[i]f an alleged alternative is
unreasonably expensive to the applicant, the alternative is not 'practicable '" Guidelines
Preamble, "Economic Factors", 45 Federal Register 85343 (December 24, 1980)
Therefore, to the extent that individual homeowners and small businesses may typically be
associated with small projects with minor impacts, the nature of the applicant may also be a
relevant consideration in determining what constitutes a practicable alternative It is
important to emphasize, however, that it is not a particular applicant's financial standing that
is the primary consideration for determining practicability, but rather characteristics of the
project and what constitutes a reasonable expense for these projects that are most relevant to
practicability determinations.
4. The burden of proof to demonstrate compliance with the Guidelines rests with the
applicant; where insufficient information is provided to determine compliance, the Guidelines
require that no permit be issued. 40 CFR 230.12(a)(3)(iv).
i
5. A reasonable, common sense approach in applying the requirements of the Guidelines'
alternatives analysis is fully consistent with sound environmental protection. The Guidelines
i
-------
contemplate that reasonable discretion should be applied based on the nature of the
aqcSJe and potential impacts of a proposed activity in determining compliance with
Sernatives test. Such an approach.encourages effective decisionmakmg and fosters a
better understanding and enhanced confidence in the Section 404 program.
6 This guidance is consistent with the February 6, 1990 "Memorandum of Agreement
Between L Environmental Protection Agency and the Department
Determination of Mitigation under the Clean Water Act Section
ROBERT H. WYLAND, El (date)
Director,
Office of Wetlands, Oceans,
and Watersheds
U.S. Environmental Protection Agency
MICHAEL L. DAVIS
Office of the Assistant Secretary
of the Army (Civil Works)
Department of the Army
6
------- |