2605.1 The Department may issue a permit or certification for an activity only if the Department finds that:

1. (a) The proposed project is water-dependent; or
2. (b) The proposed project is not water-dependent and has no practicable alternative, as specified in this section.

2605.2 The Department will apply the following criteria to determine whether a proposed project is water-dependent:

1. (a) Whether an alternate water source is available for use, including surface water or groundwater, that may result in less adverse impacts to or streams; and
2. (b) Whether the use of a wetland or stream would only enhance a project rather than function as an essential element of a project.

2605.3 In determining whether the proposed project requires access to a wetland or stream as a central element of its basic project purpose, the Department will consider whether access could be accomplished at another location that would first avoid, or if avoidance is not possible then minimize, impacts to wetlands or streams.

2605.4 For a multiple-use project that has both water-dependent and non-water dependent features, the Department will determine the features that are water dependent.

2605.5 In determining whether the proposed project is water dependent, the Department may consider, but is not bound by, the applicant's description of the basic project purpose.

2605.6 If the project is not water dependent, the applicant shall demonstrate to the satisfaction of the Department that all practicable alternatives have been analyzed, and that the proposed regulated activity has no practicable alternative.

2605.7 In determining whether the proposed regulated activity has a practicable alternative, the Department may consider the following:

1. (a) Whether the basic purpose of the project can be reasonably accomplished

using one or more other sites in the same general area as the proposed project that would avoid or reduce impacts on wetlands, streams, and other District waters;

(b) Whether a reduction in the size, scope, configuration, or density of the proposed project would accomplish the basic purpose of the project;

(c) Whether an alternative design, including a no-build alternative that would avoid or reduce impacts on wetlands, streams, and other District waters, would accomplish the basic project purpose;

(d) Whether the applicant has made a good-faith effort to address site constraints such as inadequate zoning, infrastructure, or parcel size that caused an alternative to the proposed regulated activity and project to be rejected; and

(e) Whether the regulated activity is necessary for the project to meet a demonstrated public benefit.

2605.8 In determining whether the basic project purpose can be reasonably accomplished using one or more other sites in the same general area as the proposed project that would avoid or result in less adverse impact to wetlands or streams, as specified in § 2605.7(a):

(a) The Department may consider the applicant's definition of the general area, but may make an independent determination;

(b) The applicant shall prove to the Department's satisfaction that the applicant has examined at least four (4) alternative sites, including a no-action alternative, for the proposed project during the initial planning phase; and

(c) The applicant may not exclude an alternative site from consideration during the initial planning phase because it includes or requires an area not owned by the applicant that could reasonably be obtained, used, expanded, or managed to fulfill the basic purpose of the proposed project.

2605.9 In determining whether an applicant has made a good-faith effort to address constraints, as specified in § 2605.7(d), the Department may consider any pertinent information, including:

(a) Correspondence or other written documentation between an applicant and a local authority, including a request for a special exception or other zoning variance;

(b) Evidence of efforts to modify the local infrastructure, including future planned expansions or redesign of the project because of potential impacts to wetlands or streams; and

(c) Written documentation of efforts undertaken to acquire another site or to reconfigure the proposed project, such as the reduction of building footprints by compensating vertical expansion or the use of multilevel parking garages to address the constraint.

2605.10 In determining whether the regulated activity is necessary for the proposed project to meet a demonstrated public need, as specified in § 2605.7(e), the Department may consider the following:

(a) Whether the proposed project promotes the public health, safety, or welfare; and

(b) The ecological functions of, and economic value associated with, the wetland, stream, or other water to be impacted, including the benefits and economic value provided to the general public by the wetland or stream, and the ability of the wetland or stream to continue to provide those identified functions and benefits to the general public.

2605.11 A permittee shall not change the use of a project determined to be water-dependent to a non-water-dependent use unless the permittee files a new application and receives authorization for the modified use.

SOURCE: Final Rulemaking published at 68 DCR 5254 (May 14, 2021).