The Florida Department of Environmental Protection ("FDEP") has issued a proposed rule seeking to take responsibility for the federal dredge and fill permitting process. This proposed rule has the potential to benefit landowners and developers by creating a more efficient and timely permitting process. Section 404 of the Clean Water Act ("CWA") requires that a permit be acquired before dredge or fill activity can occur in a water of the United States. Generally, the 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 will remove the Corps from the permitting process (with the notable exception that any waters used, or that potentially will be used, "to transport interstate or foreign commerce" will remain under the federal government's oversight).

In order to complete a 404 assumption, a state is required to meet certain requirements to obtain approval from the United States Environmental Protection Agency ("EPA"). Examples of the program approval requirements include:

• A letter from the Governor requesting program approval;
• Providing proposed permitting procedures;
• Detailing administrative and judicial review procedures;
• Meeting public notice requirements for any proposed rule(s);
• Including public participation in forming or revising the proposed rule(s);
• Providing a comment period of at least 45 days.

In addition to EPA approval, the state, after successfully completing a 404 assumption, must continue to pass compliance evaluations and submit copies of all permit applications and permits to the EPA. If the approved state fails to comply with the federal requirements of the permitting process, the EPA can ultimately withdraw the 404 assumption approval if no corrective action is taken with ninety days.

While Section 404 of the CWA was added to the Act in 1977, only two states - Michigan and New Jersey - have assumed the responsibility of issuing dredge and fill permits. Beginning in 1992, Florida has attempted to assume dredge and fill permitting responsibility under Section 404 but has consistently decided to halt the 404 assumption process. In 2005, the Florida Legislature passed a bill requiring FDEP to complete a feasibility study detailing "any required ... statutory changes that would be necessary to" complete a 404 assumption in Florida. FDEP completed the feasibility study which evaluated the effects of a 404 assumption. However, the 2005 study was not in favor of assumption at the time, recommending that the Florida Legislature appropriate additional resources to FDEP in order to allow it to be fully capable of assuming the responsibility of wetland permitting from the federal government.

Unlike in 2005, FDEP has now moved beyond feasibility studies and is now implementing the structure for Florida's 404 assumption. In 2018, the Florida Legislature successfully passed House Bill 7043, codified at Florida Statutes Section 373.4146, which memorialized the state's objective to assume control of the permitting process from the federal government.

Last month, FDEP released a Notice of Proposed Rule ("Proposed Rule"), detailing the potential new regulations that will apply to dredge and fill permitting upon State assumption of the permitting responsibility. The Proposed Rule begins one of the crucial steps in completing a 404 assumption by providing the permitting procedures, administrative & judicial review procedures, and the scope of activities regulated by the state-as well as beginning the required notice and comment period. According to FDEP, the intent behind Florida assuming the dredge and fill permitting responsibility from the federal government is to "provide a streamlined permitting procedure," "avoid duplication and overlap of federal and State requirements," and allow Florida to have greater control over its natural resources.

The State's assumption of the dredge and fill permitting process will address longtime concerns from Florida's development industry that the current permitting process is too lengthy and, in many cases, duplicative of the State requirements. Florida's takeover of the permitting process will create a more efficient process by subjecting the permitting process to strict permit application review timeframes. Specifically, the permits issued by the State will be required to be approved or denied within 60 days-otherwise they will be automatically approved. This is in stark contrast to the Corps current process which has no strict time requirement for approving dredge and fill permit applications.