Dredge and fill one

The Army Corps of Engineers (Corps) is the lead agency for issuing and enforcing 404 permits owing to its historical jurisdiction over navigable waters. The EPA also plays an advisory and oversight role. In practice, the Corps is the agency that most citizens will deal with.

Requirements under 404

Under Section 404, anyone who proposes an activity that would discharge dredged or fill material into waters of the United States is required to apply for a permit from the U.S. Army Corps of Engineers.

The 404 permit process requires applicants to demonstrate that they have followed certain steps in a particular order, known as “sequencing”:

• AVOID the impact: First, applicants must identify and evaluate alternatives. If the proposed activity does not absolutely have to be conducted in or near the water (i.e., is not “water-dependent”), the permitting agency is supposed to presume that there is a practicable alternative that would have a less adverse impact on the aquatic ecosystem (40CFR230.10(a)(3)).

• MINIMIZE the impact: Second, if there is no alternative site or method for the activity, the applicant is required to demonstrate how it can occur with minimal impact to the water body by specifying particular practices that take the location, nature and dispersion of the discharge into account (40CFR230.70-77).

• MITIGATE any impact: Third, only after the applicant and the Corps determine that the impact is unavoidable and will be minimized should plans for mitigation be discussed.

Theoretically, any activity that causes an appreciable impact by moving even a small amount of earth (discharging) into a water body (such as mud from the wheels of construction vehicles) is regulated under Section 404.

If an activity is regulated under Section 404, then a permit is required before the activity can proceed. Because the 404 permit is federal, it triggers the need for state water quality certification and, in some cases, an Endangered Species Act consultation. The trigger for additional review can be the most powerful aspect of Section 404.

In reality, however, many activities that require 404 permits are carried out without going through the permitting process. Unfortunately, none of the protections in Section 404 can be exercised unless the activity is permitted. For this reason, citizens need to make sure that activities in their watershed are formally permitted by the Corps.

Burden of proof on alternatives

The law places the burden of proof squarely on a permit applicant to demonstrate that any particular dredge or fill discharge into any waters of the U.S. is (a) unavoidable and (b) the least environmentally-damaging practicable alternative to achieve the basic purpose of the project (40CFR230.10(a)).

Defining are practicable alternatives

Practicable alternatives are those that achieve the same basic project purpose, are not unreasonably costly (though they may produce less return on investment), are owned by the applicant or are available during permitting and are feasible.

Some examples of practicable alternatives to a development project are:

• Relocating the project to environmentally-preferable site.
• Reconfiguring the footprint of the project or increasing the density of development.
• Reducing the scale or number of planned residential or commercial units.