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Landowners and developers in Florida can expect a streamlined permitting procedure for discharge of dredged or fill material into wetlands and other waters of the United States in the coming months. The U.S. Environmental Protection Agency ("EPA") has approved the Florida Department of Environmental Protection's ("FDEP") assumption of the Clean Water Act's ("CWA") Section 404 program. Section 404 of the CWA requires that a permit be acquired before dredge or fill activity can occur in a water of the United States. Generally, the 404 permitting process is completed by the U.S. Army Corps of Engineers ("Corps"). Section 404 provides states the option to assume the responsibility of issuing dredge and fill permits (referred to as a 404 assumption). The 404 assumption removes the Corps from the permitting process, except that any waters used, or that potentially will be used, "to transport interstate or foreign commerce" will remain under the federal government's oversight. Now, both federal and state permitting requirements will be addressed by state permits.
Florida is the third state in the nation to assume responsibility of issuing dredge and fill permits and has become the first state to gain such authority in over two decades. The State's assumption of the permitting process will address longtime concerns from Florida's development community and landowners that the current permitting process is lengthy and requires duplicative reviews. Notable aspects of the approval include:
- The State wetland delineation methodology in Chapter 62-340, F.A.C., will be used to determine the boundary of state-assumed waters.
- The existing agreements that determine whether FDEP or the water management district processes environmental resource permits ("ERP") remain in effect. FDEP, however, will conduct all 404 reviews, regardless of which agency is designated to process the ERP.
- While the Corps retains authority over Section 10 historic waters under the Rivers and Harbor Act, the State will assume authority over 404 permitting within section 10 historic waters. Therefore, discharges of dredged or fill material in Section 10 historic waters may require a separate Section 10 permit from the Corps in addition to the State 404 permit.
The approval also comes during a time when the EPA is attempting to comply with the recent United States Supreme Court decision County of Maui v. Hawaii Wildlife Fund. There, the Court held that the CWA requires a permit when there is either a direct discharge or the functional equivalent of a direct discharge of pollutant into navigable waters. The Court provided seven non-exclusive factors to consider in determining what constitutes a functional equivalent. Our previous alert relating to the case can be found here.
The EPA has now issued guidance in a draft memorandum in an attempt to clarify the "functional equivalent" analysis adopted by the Supreme Court in Maui. The guidance memo explains that the requirement for a National Pollution Discharge Elimination System ("NPDES") permit is an actual discharge of pollutants from a point source to a water of the United States, and it proposes that the design and performance of the system or facility from where the pollutant is released is an additional factor that should be considered. The EPA anticipates that the Maui decision will increase the number of NPDES permits under Section 402 of the CWA. The guidance memo was published in the Federal Register and is available for public comment until January 11, 2021.
While the assumption decision is good news, and FDEP has plans in place to move swiftly, we do expect that some ongoing projects may see short-term permitting delays. We will continue to monitor and report Florida's plans for implementation of the 404 assumption and permitting requirements under the CWA. Our Land Development, Zoning Environmental team has extensive experience advising clients on adaptations that will be necessary as a result of the new process, as well as general guidance on all matters related to wetland regulation, permitting, and enforcement. For more information, please contact us.
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