FDEP’s Assumption of the Federal Clean Water Act Section 404 Program: What It Means for Florida’s Regulated Community

On December 22, 2020, the United States Environmental Protection Agency (EPA) delegated to the Florida Department of Environmental Protection (FDEP) the authority to issue Section 404 federal Clean Water Act (CWA) permits for dredge and fill activities in certain waters within Florida.  The state’s assumption of responsibility over Section 404, if it survives current federal court challenges by environmentalists, could have wide-ranging implications for those in the regulated community.

Section 404 of the Clean Water Act

Section 404(g) of the CWA allows states to request from the EPA authority over the permitting of dredge-and-fill activities in wetlands and, if granted, execute on that authority through Memoranda of Agreement (MOA) with EPA, the United States Corps of Engineers (Corps), and other involved federal and state agencies.  CWA Part 233 requirements for state 404 assumption originally were adopted by the EPA in 1988.  Florida’s legislature in 2018 passed Section 373.4146, F.S., giving FDEP the authority to begin a public rulemaking process to assume federal dredge-and-fill permitting within certain waters.  The rulemaking process was completed in July 2020 and codified at Chapter 62-331, F.A.C., the “State 404 Program”.  Certain changes also were made to the separate state Environmental Resource Permitting (ERP) program (Chapter 62-330, F.A.C.) to ensure consistency after assumption.

A coalition of environmental advocacy groups, including the Sierra Club, Defenders of Wildlife, and the St. John’s Riverkeeper, have challenged EPA’s delegation in the federal district court for the District of Columbia (Civil No. 21-cv-119, filed January 14, 2021).  The fifty-one page complaint alleges that the EPA’s approval of Florida’s Section 404 Program is unlawful “because the state’s program is not as stringent as federal law and rests on unprecedented arrangements that violate federal law.”  In particular, the lawsuit alleges that the delegation is in contravention of the Endangered Species Act, the CWA, the Rivers and Harbors Act, and the Administrative Procedure Act and seeks immediate injunctive relief vacating and setting aside EPA’s delegation.

What the Assumption May Mean for the Florida Regulated Community

If the environmentalists’ challenge is unsuccessful, Florida will retain its new delegation authority, joining only two other states with delegated Section 404 programs, Michigan in 1984 (40 C.F.R. § 233.70) and New Jersey in 1994 (40 C.F.R. § 233.71).  What the assumption means for the regulated community largely remains to be seen, but an analysis of Florida’s assumption application materials provides us with a general understanding.

First and foremost, it is important to understand that under the delegation, while certain procedural requirements and timeframes will change, CWA conditions for Section 404 work in wetlands, including mitigation, minimization, avoidance, and certain approvals by multiple other federal and state agencies and water management districts, remain.  All covered dredge-and-fill projects in Florida, including projects involving, e.g., commercial developments, single family residences, utility projects, environmental restoration and enhancement, linear transportation projects, governmental development, in-water work within assumed fresh water bodies, and certain silvicultural and agricultural activities will still require state ERP permitting as well as state 404 permitting.  FDEP predicts that the state’s assumption of the 404 program will lead to a streamlined permitting process, with efficiency gains because the state will now conduct the reviews under both the 404 and ERP programs, which have significant overlap.

Many of the new State 404 Program standards, rules, and procedures will be described in the FDEP binding guidance document, “Program Applicant’s Handbook” and in the new FDEP section 404 permit application forms.  The State 404 Program will offer three types of authorizations: verifications of exemption, general permits, and individual permits.  The FDEP’s six district offices, Mining and Mitigation Program (MMP), and Mitigation Banking Program (MBP) will be in charge of all State 404 Program authorizations and compliance actions.  The district offices will process all permit applications for projects within their respective boundaries, except applications for mining projects (processed by the MMP) and applications for mitigation banks (processed by the MBP).  The ERP Program will continue to be implemented by the six district offices and the state’s five Water Management Districts.  The FDEP will retain its responsibility to perform Formal Wetland Delineations under the Florida Unified Wetland Delineation Methodology (Chapter 62-340, F.A.C.).

Second, the regulated community should take note that the state’s assumption will apply only to a covered project in Florida proposing dredge-and-fill activities within “State Assumed Waters.”  Such projects within “Retained Waters” of the federal government, including certain tidal navigable waters and adjacent wetlands and waters in Indian Country (all as further defined in the assumption MOA between the Corps and FDEP and the Program Applicant’s Handbook) will still require federal Section 404 permitting by the Corps.  FDEP at its “404 Assumption” page on its website provides links to the MOAs as well as a mapping tool designed to help users identify Retained Waters.

Third, a significant difference after state assumption will be the availability of different avenues for challenge to dredge-and-fill permit actions.  Under the new State 404 Program, disputes over material facts during the permitting process will go to a Division of Administrative Hearings de novo hearing before an administrative law judge rather than the federal court system.  Furthermore, challenges to most 404 permits no longer will be available under the National Environmental Policy Act.

Conclusion

Florida’s regulated community has long been familiar with the CWA’s Section 404 permitting requirements.  While it appears many of those requirements will not fundamentally change under the state’s assumption of the 404 program, many procedural obligations will.  As with any significant delegation, there undoubtedly will be some growing pains.  Regulated entities should take the time now to familiarize themselves with FDEP’s new role and what it means for your business going forward.