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United States Environmental Protection Agency
Office of Water
' Washington, D.G 20460
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S United States Department of the Army
Office of the Assistant Secretary
Washington, D.C 20310-0103
MAR 6
MEMORANDUM FOR THE FIELD
SUBJECT: Individual Permit Flexibility for Small Landowners
In order to clearly affirm the flexibility afforded to small landowners under
Section 404 of the Clean Water Act, this policy clarifies that for discharges of dredged or
fill material affecting up to two acres of non-tidal wetlands for the construction or
expansion of a home or farm building, or expansion of a small business, it is presumed
that alternatives located on property not currently owned by the applicant are not
practicable under the Section 404(b)(l) Guidelines.
Specifically, for those activities involving discharges of dredged or fill material
affecting up to two acres into jurisdictional wetlands for:
1) the construction or expansion of a single family home and attendant features,
. such as a driveway, garage, storage shed, or septic field;
2) the construction or expansion of a barn or other farm building; or
3) the expansion of a small business facility;
which are not otherwise covered by a general permit, it is presumed that alternatives
located on property not currently owned by the applicant are not practicable under the
Section 404(b)(l) Guidelines. The Guidelines'requirements to appropriately and
practicably minimize and compensate for any adverse environmental impacts of such
activities remain.
Discussion
The Clean Water Act Section 404 regulatory program provides that the Army
Corps of Engineers evaluate permit applications for the discharge of dredged or fill
material into waters of the U.S., including wetlands, in accordance with regulatory
requirements of the Section 404(b)(l) Guidelines (Guidelines). The Guidelines are the
substantive environmental criteria used in evaluating discharges of dredged or fill
material.
The Section 404(b)(l) Guidelines establish a mitigation sequence that provides a
sound framework to ensure that the environmental impacts of permitted actions are
acceptable. Under this framework, there is a three-step sequence for mitigating
potential adverse impacts to the aquatic environment associated with a proposed
discharge -- first avoidance, then minimization, and lastly compensation for unavoidable
impacts to aquatic resources. '
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The Guidelines' mitigation sequence is designed to establish a consistent
approach to be used in ensuring that all practicable measures have been taken to reduce
potential adverse impacts associated with proposed projects in wetlands and other
aquatic systems. The Guidelines define the term "practicable" as "available and capable
of being done [by the applicant] after taking into consideration cost, existing technology
and logistics in light of overall project purposes." (40 CFR 230.3(q)). The first step in
the sequence requires the evaluation of potential alternative sites under §230.10(a) of
the Guidelines, to locate the proposed project so that aquatic impacts are avoided to the
extent practicable.
This policy statement clarifies that, for the purposes of the alternatives analysis, it
is presumed that practicable alternatives are limited to property owned by the permit'
applicant in circumstances involving certain small projects affecting less than two acres of
non-tidal wetlands. This presumption is consistent with the practicability considerations
required under the Guidelines and reflects the nature of the projects to which the
presumption applies -- specifically, the construction or expansion of a single family home
and attendant features, the construction or expansion of a barn or other farm building,
or the expansion of a business. For such small projects that would solely expand an
existing structure, the basic project purpose is so tied to the. existing structures owned by
the applicant, that it would be highly unusual that the project could be practicably
located on other sites not owned by the applicant In these cases, such as construction
of driveways,_ garages, or storage sheds, or with home and barn additions, proximity to
the existing structure is typically a fundamental aspect of the project purpose.
In the evaluation of potential practicable alternatives, the Guidelines do not
exclude the consideration of sites that, while not currently owned by the permit
applicant, could reasonably be obtained to satisfy the project purpose. However, it is the
experience of the Army Corps of Engineers and EPA that areas not currently owned by
the applicant have, in the great majority of circumstances, not been determined to be
practicable alternatives in cases involving the small landowner activities described above.
Cost, availability, and logistical and capability considerations inherent in the
determination of practicability under the Guidelines have been the basis for this
conclusion by the agencies.
The agencies recognize that the presumption characterized in this policy
statement may be rebutted in certain circumstances. For example, a more thorough
review of practicable alternatives would be warranted for individual sites comprising a
subdivision of homes, if following issuance of this policy statement, a real estate
developer subdivided a large, contiguous wetlands, parcel into numerous parcels. In
addition, the presumption is applicable to the expansion of existing small business
facilities. Small businesses are typically confined to only one location and with economic
and logistical limiations that generally preclude the availability of practicable alternative
locations to meet their expansion needs. Conversely, larger businesses with multiple
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locations and greater resources are expected to consider opportunities to practicably
avoid adverse aquatic impacts by evaluating off-site alternatives.
Finally, it is important to note that this presumption of practicable alternatives is
intended to apply to the individual permit process. Alternatives are not evaluated for
activities covered by general permits. Many activities related to the construction or
expansion of a home, farm, or business, are already covered by a general permit In
addition, in conjunction with the issuance of this policy statement, a nationwide general
permit authorizing discharges related to single family residential development is being
proposed and will be available for public comment
If you have any questions regarding this memorandum, please contact Gregory
Peck of EPA's Wetlands Division at (202) 260-8794 or Michael Davis of the Corps of
Engineer's Regulatory Branch at (202) 272-0199.
Robert Perciasepe JoWzirsciky
Assistant Administrator for Water VActing Assistant Secretary
U.S. Environmental Protection Agency of the Army (Civil Works)
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