On December 17, 2020, the U.S. Environmental Protection Agency ("EPA") announced their approval of the State of Florida’s request to administer federal wetlands permitting under the Clean Water Act ("CWA") Section 404 Program within the state. Florida is only the third state in the country to receive such authority. The approval will transfer all permitting authority under the Clean Water Act’s Section 404 Program from the U.S. Army Corps of Engineers ("Corps") to the Florida Department of Environmental Protection ("FDEP"). The Corps will transfer pending Section 404 applications to the FDEP. Section 404 of the CWA regulates the discharge of dredged or fill material into "waters of the Unites States," including wetlands. Florida's assumption will become effective tomorrow, December 22, 2020, upon publication of the EPA's formal Notice in the Federal Register. A pre-publication draft of the Notice can be found here.
The State 404 Program will apply to any project proposing dredge or fill activities within state-assumed waters, including, among others, single family residences, commercial developments, utility projects, environmental restoration and enhancement, and certain agricultural and silvicultural activities. The assumption will hopefully provide a streamlined permitting procedure for applicants. Please note, however, that the State 404 Program is separate from the existing Environmental Resource Permitting program ("ERP") and projects within state-assumed waters will require both an ERP and a State 404 Program authorization. Efficiency will come from the fact that approximately 85% of review requirements overlap between programs, eliminating duplicative and time-consuming review.