Wetlands permitting under § 404 of the Clean Water Act (CWA)¹ presents many complex and challenging issues, ranging from the extent of the federal government's jurisdiction over potential "waters of the United States," to controversies over the definition of "dredge" and "fill" activities, to appropriate forms and amounts of mitigation for wetlands impacts. Additionally, beyond § 404 itself, numerous other federal, state, and local requirements complicate the § 404 permitting process, making even the most simple permitting action a time-consuming and potentially controversial affair. One of the important federal statutes that is implicated to some extent in every § 404 permitting action is the National Environmental Policy Act (NEPA). This Dialogue examines some of the issues that have arisen over the years in the intersection between § 404 and NEPA.

The first section of this Dialogue presents a brief overview of NEPA and the environmental impact statement (EIS) preparation process. The next section then examines the application of NEPA in the § 404 permitting context, focusing particularly on the continuing controversy surrounding the U.S. Army Corps of Engineers' (Corps') "scope of analysis" under NEPA for § 404 permitting actions. This section particularly examines a handful of recent cases that demonstrate that this area of law is far from settled and will continue to pose difficult challenges for § 404 practitioners. The following section briefly examines a handful of additional issues that arise in the NEPA/§ 404 nexus, including the definition of project purpose, substantive versus procedural requirements, NEPA/§ 404 process integration, and the analysis of environmental effects under both statutes.