Florida’s efforts to assume section 404 permitting

Abstract

Section 404 of the federal Clean Water Act prohibits disposing of dredged and fill materials into the waters of the United States (WOTUS) absent a permit or statutory exception. Often, development in wetlands requires a dredge and fill permit under the Clean Water Act. The U.S. Army Corps of Engineers is the agency authorized to grant such permits unless a state assumes this responsibility as provided under the same statute. In 2005, the Florida Department of Environmental Protection (FDEP) explored assumption of §404 permitting resulting in a report to the Florida legislature finding the department could not assume this responsibility due to inadequate state staff and funds. Despite significant reductions in staff and funding since then, FDEP’s current position is that the department can assume this responsibility without adding to its budget due to duplicative permitting of wetlands development under state statutes. The State of Florida submitted its assumption package to the U.S. Environmental Protection Agency (EPA) on 20 August 2020. If approved by the EPA, Florida will be only the third state to assume §404 permitting authority from the Corps of Engineers. The action is not without controversy and is mostly opposed by those in the environmental protection community. A new federal rule defining WOTUS effective 22 June 2020, further complicates §404 assumption for any state.