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404 Assumption

During  Florida’s 2018 legislative session, a bill was passed that gave DEP authority to begin the public rulemaking process to better protect  the state's wetlands and surface waters by assuming the federal dredge and fill permitting program under section 404 of the federal Clean Water Act within certain waters. The rulemaking process was completed on July 21, 2020. Through this process, Chapter 62-331, F.A.C., “State 404 Program,” was created to bring in the requirements of federal law not already addressed by the existing Environmental Resource Permitting (ERP) program. Minor changes were also made to the ERP rules in Chapter 62-330, F.A.C., to facilitate assumption.  

State assumption of the 404 program would provide a streamlined permitting procedure within which  both federal and state requirements are addressed by state permits. This 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. The State 404 Program is a separate program from the existing Environmental Resource Permitting Program (ERP), and projects within state-assumed waters will require both an ERP and a State 404 Program authorization. Efficiency will come from the fact that approximately 85% of review requirements overlap between programs, eliminating duplicative review.

The State 404 Program would apply to any project proposing dredge or fill activities within state assumed waters. Such projects include, but are not limited to: single family residences; commercial developments; utility projects; environmental restoration and enhancement; linear transportation projects; governmental development; certain agricultural and silvicultural activities; and in-water work within assumed fresh water bodies such as boat ramps, living shorelines, and other shoreline stabilization.

Florida submitted its assumption package to the U.S. Environmental Protection Agency (EPA) on August 20, 2020 and began an internal weekly webinar training program on August 11, 2020 to prepare staff for program implementation . If Florida’s program is approved, the state would be only the third state to assume authority to implement the section 404 permitting program, and the first in decades. Assumption would result in significant efficiencies for permittees and allow better engagement with the public, all while rigorously protecting the environment. 

Draft Retained Waters Screening Tool

This mapping tool is a draft depiction of the approximate extent of Retained Waters, along with a 300 foot guideline, as well as Indian Country, as defined by the Memorandum of Agreement between DEP and the U.S. Army Corps of Engineers (Corps). The map contains a screening widget which allows users to draw shapes or upload shapefiles that represent dredge/fill footprints in order to determine if 404 permitting jurisdiction for a project will be retained by the Corps (footprints fully or partially within Retained Waters and/or Indian Country) or assumed by the State (footprints entirely outside of Retained Waters and Indian Country). The Retained Waters layer was created by combining four datasets to represent waters named on the Retained Waters List and shorelines of waters subject to the ebb and flow of the tide (more information in the layer’s metadata). The Indian Country layer was obtained from the Bureau of Indian Affairs’ American Indian and Alaska Native Land Area Representation map. Both layers are subject to change if new information becomes available. These layers are not guaranteed to be accurate and are solely meant to assist the initial screening of an application. After approval of Florida’s program, the final determination of 404 permitting jurisdiction can only be made by comparing actual observations of the site to the text of the MOA (e.g. measurement of ordinary high water mark or mean high tide line for Retained Waters, status and boundaries of the property for Indian Country). This screening tool is considered draft until EPA’s approval of Florida’s program.

Florida's Assumption Materials

Florida’s assumption package submitted to EPA on August 20, 2020, and associated materials are available for public review.

Information regarding the completed rulemaking process may be viewed on the Division's draft rulemaking page

If you have questions or would like more information please contact State_404@FloridaDEP.gov.

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Last Modified:
November 23, 2020 - 7:28am

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