State Assumption of the Clean Water Act Section 404 Permitting Program: An Overview.

• Date: 01 January 2021
• Author: Martin, Susan Roeder

Section 404 of the Clean Water Act (CWA), Title 33 of the U.S. Code (U.S.C.) [section]1251, et seq., governs discharges of dredge or fill materials into waters of the United States. (1) In Florida and 47 other states, a permit must be obtained from the U.S. Army Corps of Engineers (corps) under [section]404 of the Clean Water Act, for activities that discharge dredge and fill materials into a water of the United States. Additionally, in Florida, works and activities that alter the surface of land must have an environmental resource permit (ERP) from the Florida Department of Environmental Protection (DEP) or one of the state's five water management districts under Part IV of F.S. Ch. 373 and Rule 62-330 of the Florida Administrative Code. (2) DEP estimates the federal 404 permit and state ERP overlap 85% of the time. (3) This means many applicants must process two sets of permits that often regulate the same activity, incurring additional costs and potential delays.

Section 404(g)(1) allows states and Native American tribes with "treatment as a state" status to apply to the U.S. Environmental Protection Agency (EPA) to assume permitting under the [section]404. Relying upon the authorization in [section]404(g), in 2018 the Florida Legislature enacted F.S. [section]373.4146, allowing DEP to apply to the EPA to assume [section]404 permitting. This statute also authorized DEP to enact necessary rules to implement the program and federal requirements necessary for assumption (state 404 permit program).

The goal of state assumption is to provide a streamlined permitting procedure addressing both federal and state requirements, while maintaining at least the same level of environmental protection as the federal program. DEP states that assumption "would provide greater certainty to the regulated community, conserve resources of both applicant and regulator, and would afford the state greater control over its natural resources while complying with federal law." (4)

The Assumption Process (5)

As part of the assumption process, DEP spent many hours working with the EPA, the corps, and other agencies on memorandums of agreement (MOAs) and memorandums of understanding (MOUs), discussed below. DEP also adopted F.A.C.R. 62-331, with an incorporated State 404 Program Applicant's Handbook, setting forth the rules for the assumed program, including provisions to meet federal requirements.

DEP published a notice of rule development for Rule 62-331 on May 11, 2018. The first public workshops were held in May and June 2018, and on February 19, 2020, proposed F.A.C.R. 62-331 was published. Hearings were held in April 2020. Two notices of change were published in June 2020.

On August 20, 2020, DEP applied to EPA for assumption of the CWA 404 program. (6) On September 16, 2020, EPA published notice in the Federal Register that DEP submitted a complete application for assumption. (7) At the time of the writing of this article, the EPA has scheduled public hearings for October 21 and 27, 2020, and is in the process of consulting with Native American tribes. The deadline for public comments regarding Florida's [section]404 assumption application was November 2, 2020. EPA has 120 days from receipt of the complete application to approve or disapprove the application. This means EPA must act on Florida's request no later than December 17, 2020. If EPA approves the request, Florida will be the third state to assume the 404 CWA permitting program and the first in decades. (8)

If assumption is approved by the EPA, F.A.C.R. 62-331 and the memorandums of agreement and understanding discussed below will be effective upon publication of the approval decision, and 404 permits will be issued pursuant to state law and must be challenged pursuant to F.S. Ch. 120.

DEP has been training staff to implement the state 404 permit program upon approval and coordinating with water management districts to make the program run smoothly. (9)

Coordination with Federal and State Agencies

DEP's assumption application required memorandums of agreement or understanding with the EPA, the corps, and the U.S. Fish and Wildlife Service (USFWS). The MOA between DEP and EPA Region IV defines the federal and state roles in carrying out the policies, regulations, and procedures necessary for Florida to administer the state 404 permit program. (10) Pursuant to [section]404(k) of the CWA and 40 C.F.R. [section]233.51, EPA waives the requirements of [section]404(j) and the regulations adopted thereunder regarding federal review of DEP permit applications, with specific permit category exceptions set forth in the MOA. (11)

The MOA between DEP and the corps addresses authority to be retained, coordination procedures, procedures for existing permits and pending applications, review of state programmatic permits, and coordination on mitigation banking and enforcement. (12)

The MOU between the USFWS and the Florida Fish and Wildlife Conservation Commission (FWC) sets forth a coordination framework wherein DEP or FWC may engage with the USFWS for threatened and endangered species coordination reviews in the state 404 permit program. (13) A technical team, roles and responsibilities will be established in the MOU among DEP, FWC, and the USFWS (14) to address the federal requirements for the protection of threatened and endangered species. (15) "Compliance shall be...