Practicable Alternatives for Wetlands Development Under the Clean Water Act

21 Pages Posted: 21 Nov 2018 Last revised: 29 Nov 2018

See all articles by Daniel R. Mandelker

Daniel R. Mandelker

Washington University in St. Louis - School of Law

Date Written: October 29, 2018

Abstract

Section 404(b) of the Clean Water Act authorizes a “practicable alternatives” requirement for dredge and fill permits. EPA has adopted guidelines that set out and interpret that requirement, but the U.S. Army Corps of Engineers has substantial discretion in deciding its application to specific sites, and there can be significant variation in practice. This Article examines the practicable alternatives requirement, including comparisons with similar requirements in federal law; discusses other federal, state, regional, and local requirements that intersect with and shape the §404 process; and analyzes how practicable alternatives and other CWA requirements can be met. It makes recommendations for revising the practicable alternatives requirement, process, and decision criteria to improve its role in protecting wetlands resources.

Keywords: Wetlands, National Environmental Planning Act, Planning, Clean Water Act, Permit

Suggested Citation

Mandelker, Daniel R., Practicable Alternatives for Wetlands Development Under the Clean Water Act (October 29, 2018). Environmental Law Reporter, Vol. 48, No. 10, 2018, Available at SSRN: https://ssrn.com/abstract=3274767

Daniel R. Mandelker (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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