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Practicable Alternatives for Wetlands Development Under the Clean Water Act

October 2018

Citation: 48 ELR 10894

Issue: 10

Author: Daniel R. Mandelker

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.

Daniel R. Mandelker is the Stamper Professor of Law at Washington University in Saint Louis.

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