State Assumption of the Federal Dredge-and-Fill Permitting Program: The Search for the "Holy Grail".

Author:Blalock, Adam F.
Position:ENVIRONMENTAL AND LAND USE LAW
 
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State assumption of the U.S. Army Corps of Engineers (corps) dredge-and-fill permitting authority has been regarded by some as the "Holy Grail for developers" (1) because it would reduce the frustration and delay in obtaining federal Clean Water Act (CWA), [section]404 dredge-and-fill permits. The 2018 passage of H.B. 7043 places the "Holy Grail" within reach. Private developments, infrastructure projects, and even environmental restoration projects, would benefit from a more efficient, predictable, and transparent state permitting process. The Florida Department of Environmental Protection (FDEP) must take certain actions and overcome hurdles to achieve assumption.

Background

In general, [section]404 of the CWA, (2) along with the underlying federal implementing rules, requires a dredge-and-fill permit from the corps for any activity that results in the discharge of dredged or fill material into the waters of the United States. F.S. Ch. 373, Part IV requires a similar permit for activities that impact wetlands or other surface waters located within the jurisdictional boundaries of the state. When a project impacts state and federal jurisdictional wetlands or other surface waters, the applicant must obtain both a state environmental resource permit (ERP) and a corps dredge-and-fill permit (404 permit). This results in an applicant having to obtain two nearly identical permits for impacts to the same areas of wetlands and surface waters. Often, the applicant will experience significant delays in receiving the 404 permit from the corps, compared to the time it takes FDEP to issue the state ERP. (3)

In order to implement the CWA declaration that "it is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of [s]tates to prevent, reduce, and eliminate pollution," Congress included the state assumption provision in [section]404(g) of the CWA. (4) Under [section]404(g), any state looking to administer its own individual and general permit program for the discharge of dredged or fill material into the waters of the U.S.5 can submit to the Environmental Protection Agency (EPA) a description of the permitting program it proposes to establish and administer under state law. If EPA determines that a state has a sufficient state program to implement and enforce the federal 404 permitting program, then the program will be approved and the state will have exclusive authority to issue delegated federal dredge-and fill permits.

House Bill 7043

H.B. 7043 creates F.S. [section]373.4146, granting FDEP the explicit authority to assume the federal 404 permitting program and to adopt, by rule, any federal criteria or regulations necessary to obtain assumption. The new law does not--and under federal law cannot--reduce environmental protections offered by federal law. Instead, the legislation provides the authority and a process for FDEP to "step into the shoes" of the corps and apply federal law in the issuance of 404 permits. For example, federal law requires that under a state-assumed program, states must enforce the criteria established in the CWA, [section]404(b) (1) guidelines that are more explicitly provided for in 40 C.F.R. Part 230. Additionally, H.B. 7043 also exempts FDEP from the default permit issuance provisions established in F.S. [section][section]120.60 and 373.4141, which are prohibited under the CWA. Although FDEP now has the requisite authority to seek assumption and adopt the necessary rules to implement a state 404 permitting program, there is a specific process that FDEP must follow before assumption of the 404 permitting program can be granted.

Obtaining State Assumption of the [section]404 Permitting Program

In order for Florida to obtain assumption of [section]404 permitting authority from the corps under the CWA and 40 C.F.R. Part 233, the state must first submit to the EPA regional administrator (RA) three copies of the following: 1) a letter from the governor of Florida requesting program approval; 2) a complete program description as set forth in 40 C.F.R. [section]233.11; 3) an attorney general's statement as set forth in 40 C.F.R. [section]233.12; 4) a memorandum of agreement (MOA) with EPA as set forth in 40 C.F.R. [section]233.13; 5) a MOA with the corps as set forth in 40 C.F.R. [section]233.14; and 6) copies of all applicable Florida statutes and regulations, including those governing applicable state administrative procedures. (6)

* Program Description--40 C.F.R. [section]233.11 requires states to include the following information in the program description submitted to the RA: 1) a description of the scope and structure of the state's program; 2) a description of the state's permitting, administrative, judicial review, and other applicable procedures; 3) a description of the basic organization and structure of the state agency(ies), which will have responsibility for administering the program; 4) a description of the funding and manpower, which will be available for program administration; 5) an estimate of the anticipated workload, e.g., number of discharges; 6) copies of permit application forms, permit forms, and reporting forms; 7) a description of the state's compliance evaluation and enforcement programs; 8) a description of the waters of the U.S. within a state over which the state assumes jurisdiction under the approved program; 9) a description of the waters of the U.S. within a state over which the secretary retains jurisdiction subsequent to program approval 7; 10) a comparison of the state and federal definitions of wetlands; and 11) a description of the specific best management practices proposed to be used to satisfy the exemption provisions of [section]404(f)(1)(E) of the act for construction or maintenance...

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