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.
The Florida Department of Environmental Protection is the state’s lead agency for environmental management and stewardship – protecting our air, water and land. The vision of the Florida Department of Environmental Protection is to create strong community partnerships, safeguard Florida’s natural resources and enhance its ecosystems.