Florida Dept. of Environmental Protection Takes Over Federal Wetlands Permit Pro…

Highlights

The U.S. Environmental Protection Agency (EPA) on Dec. 17, 2020, signed an agreement to delegate to the Florida Department of Environmental Protection (FDEP) the authority to issue permits in the state under Section 404 of the federal Clean Water Act (CWA). Only two other states, New Jersey and Michigan, have assumed such authority. The assumption became effective on Dec. 22, 2020, when it was published in the Federal Register.¹

The core purpose of the 404 assumption is to provide a streamlined permitting procedure where both federal and state requirements are addressed by the same agency. In effect, it would be “one-stop shopping” for most wetlands permits. It is expected that such efficiencies will eventually reduce time and cost for the processing of permits. The new FDEP regulations include enforceable deadlines, shorter review periods and shorter comment periods. However, it is important to note that while FDEP will be administering the federal process, all Clean Water Act requirements (avoidance, minimization, mitigation, etc.) will remain. In turn, projects will still have to be approved by other federal agencies.

Key Points

• All existing 404 permits and jurisdictional determinations will remain valid for their term.
• All applications that were pending with the U.S. Army Corps of Engineers will be transferred to FDEP for future processing. FDEP will have the discretion to make all final decisions on the permits.
• Future applications may still be reviewed by the EPA and U.S. Fish and Wildlife Service. Both agencies will employ a new process for their reviews. There may be issues with manpower and review times.
• It is probable that the assumption process will be challenged in federal court. Moreover, it is unclear how the assumption will be received by the incoming Biden Administration given the opposition of many environmental non-governmental organizations.

The Clean Water Act

The CWA prohibits the discharge of dredge and fill materials into “waters of the United States” without a permit.² The Section 404 permitting program is a complex process that is administered by the Army Corps of Engineers and the EPA. However, Section…