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<br />~! <br /> <br />Federal Register / Vol. 45, No. 249 / Wednesday. December 24. 1980 / Rules and Regulations 85339 <br /> <br />practicable alternatives were available <br />In non-aquatic areas to achieve the <br />basic purposes of the proposal. We still <br />support this goal. but we have changed <br />the water-dependency test to better <br />achieve it. <br />First. we agree with the comments <br />from both sides that the "necessary" test <br />imposed by the 1979 proposal is not <br />likely to be workable in practice. and <br />may spawn more disputes than it settles. <br />However, if the "necessary" test is <br />simpl}' deleted. section 230.to(e) does <br />not provide any special recognition of or <br />protection for wetlands. and thus <br />defeats its purpose. Furthermore. even if <br />the "necessary" test were retained. the <br />provision applies only to discharges of <br />fiH materi3.l, not discharges of dredged <br />material. a distinction which lessens the <br />effectiveness of the provision. Thus, we <br />hdve decided. in accordance with the <br />comments. that the proposal is <br />unsatisfactory. <br />We have therefore decided to focus <br />on. round out, and strengthen lhe <br />approach of the so-called "WAter <br />dependency" provision of the 1975 <br />regulation. We have rejected the <br />suggestion that we simply go back to the <br />1975 language. in part because it would <br />nat mesh easiiv with the rcvised general <br />provisions of tile Guidelines. Instead. <br />cur revised "wa ter dependenci' <br />provi3ion creates a presumption that <br />th"!re are practicable alternatives to <br />"non.water dependent" discharges <br />proposed for spEcial aquatic sites. "Non. <br />water dependent"' discharges are those <br />associated with activities which do not <br />require access or proximity to or siting <br />within the special aquatic site to fulfill <br />their basic purpose. An example is a fill <br />to create a restaurant site. since <br />restaurants do not need to be in <br />wetlands to fulfill their basic purpose of <br />feeding people. In the case of such <br />activities. it is reasonable to assume <br />there will generally be a practicable site <br />available upland or in a less vulnerable <br />part of the aquatic ecosystem. The mete <br />fact that an alternative may cost <br />somewha t more does not necessarily <br />mean it is not practicable (see <br />! 230.1O[a)(2) and discussion below). <br />Because the applicant may rebut the <br />prc;sumption through a clear showing in <br />a given case. no unreasonable hardship <br />should be wcrked. At the same time, <br />this presumption should have the effect <br />of furcing a hard look at the feasibility <br />of usin~ environmentally preferable <br />sites. This presumption responds to the <br />overwhelming number of c:ommenters <br />who urged us to retain a wat~r <br />dependency test to discourage <br />avoidable discharges in wetlands. <br /> <br />In addition. the 1975 provision <br />effectively created a special. <br />irrebuttable presumption that <br />alternatives to wetlands were always <br />less damaging to the aquatic ecosystem. <br />Because our experience and the <br />comments indicate that this is not <br />always the case. and because there <br />cou!d be substantial impacts on other <br />.elements of the environment and only <br />minor impacts on wetlands. we have <br />chosen instead to impose an explicit. but <br />rebuttable. presumpticn that <br />alternatives to discharges in special <br />aquatic sites are less damaging to the <br />aquatic ecosystem and are <br />environmentally preferable. Of course. <br />the general requirement that impacts on <br />the aquatic ecosystem not be <br />unacceptable also applies, The <br />legislative history of the Clean Water <br />Act. Executive Order 11990. and a large <br />body of scientific information support <br />th!~ presumption. <br />Apart from the fact that it may be <br />rebutted. this second presumption <br />reincorporates the key elements of the <br />1Bi5 provision. Moreover. it strengthens <br />it becausc the recognition of the special <br />environmental role of wetlands now <br />applies to all discharges in special <br />aquatic sites. whether of dredged or fill <br />material. and whether or not water <br />dependent. At the same time. this <br />presumption. like the first Gne described <br />above, retains sufficient flexibility to <br />reflect the circumstances of unusual <br />cases, <br />Consistent with the general burden of <br />proof under these Guidelines. where an <br />applicant proposes to discharge in a <br />special aquatic site it is his <br />responsibility to persuade the pennitting <br />authority that both of these <br />presumptions have clearly been rebutted <br />in order to pass the alternatives portion <br />of these Guidelines. <br />Therefore, we believe that the new <br />! 230.10(a)(3). which replacea proposed <br />230.10(e). will give special protection 10 <br />wetlands and other special aquatic sites <br />regardless of material discharged. allay <br />industry's concerns about the <br />"necessary" test. recognize the <br />possibility of impacts on air and upland <br />svstems, and acknowledge the <br />v~riability among aquatic sites and <br />discharge activities. <br /> <br />Alternatives <br /> <br />Some commenters objected at length <br />to the scope of alternatives which the <br />Guidelines require to be considered. and <br />to the requirement that a permit be <br />denied unless the least harmful such <br />alternative were selected. Others wrote <br />to urge us to retain these requirements. <br />In our judgment. a number of the <br />objections were based on a <br /> <br />misunderstanding of what the proposed <br />alternatives analysis required. <br />Therefore. we have decided to clarify <br />the regulation. but have not changed its <br />basic throst. <br />Section 403(c) clearly requires that <br />alternatives be considered. and provides <br />the basic legal basis for our requirement. <br />While the statutory provision leaves the <br />Agency some discretion to decide how <br />alternatives are to be considered. we <br />believe that the policies and goals of the <br />Act. as well as the other authorities <br />cited in the Preamble to the proposed <br />Guidelines. would be beat served by the <br />approach we have taken. <br />First. we emphasize that tha only <br />alternatives which must be considered <br />are practicable alternatives. What is <br />practicable depends on cost.. technical. <br />and logistic factors, We have changed <br />the word "economic" to "cost". Our <br />intent is to consider those alternatives <br />which are reasonable in terms of the <br />overall scope/cost of the proposed <br />project. The term economic might be <br />construed to include consideration of <br />the applicant's financial standing. or <br />investment. or market share. a <br />cumbersome inquiry which is not <br />necessarily material to the objectives of <br />the Guidelines. We consider it implicit <br />that. to be practicable, an alternative <br />must be capable of achieving the basic <br />purpose of the proposed activity. <br />Nonetheless. we have made this explicit <br />to allay widespread concern. Both <br />"internal" and "external" alternatives. <br />as described in the September 18. 1979 <br />Preamble. must satisfy the practicable <br />test. In order for an "external" <br />alternative to be practicable, it must be <br />reasonably available or obtainable. <br />However. the mere fact of ownership or <br />lack thereof. does not necessarily <br />determine reasonable availability. Some <br />readers were apparently confused by <br />the Preamble to the Proposed <br />Regulation, which referred to the fact <br />the National Environmental Policy Act <br />(NEPA) may require consideration of <br />courses of action beyond the authority <br />of the agency involved. We did not <br />mean to suggest that the Guidelines <br />were necessarily imposing such a <br />requirement on private individuals hut. <br />rather. to suggest that whafwe were <br />requiring was well within the <br />alternatives analyses required by NEPA. <br />Second. once these practicable <br />alternatives have been identified in this <br />fashion. the permitting authority should <br />consider whether any of them. including <br />land disposal options. are less <br />environmentally harmful than the <br />proposed discharge project. Of course, <br />where there is no significant or easily <br />identifiable difference in impact. the <br />