In 2018 Florida's legislature passed a bill that gave the Florida Department of Environmental Protection (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, Florida Administrative Code (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 provides a streamlined permitting procedure within which both federal and state requirements are addressed by state permits. This provides greater certainty to the regulated community, conserves resources of both the applicant and regulator, and affords the state greater control over its natural resources while complying with federal law. The State 404 Program is a separate program from the existing ERP program, and projects within state-assumed waters require both an ERP and a State 404 Program authorization. Efficiency comes from the fact that approximately 85% of review requirements overlap between programs, eliminating duplicative review.
The State 404 Program is responsible for overseeing permitting for 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.
This mapping tool is a depiction of the approximate extent of federally retained Waters, along with a 300-foot guideline, as well as Indian Country, as defined by the Memorandum of Agreement (MOA) between DEP and the U.S. Army Corps of Engineers (USACE). 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 USACE (footprints fully or partially within Retained Waters and/or Indian Country) or assumed by the state of Florida (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 U.S. Department of Interior's Bureau of Indian Affairs’ American Indian and Alaska Native Land Area Representation map. Both layers are subject to change if new information becomes available. The accuracy of these layers is not guaranteed and cannot be used as official boundary or survey lines; they are solely intended to assist with the initial screening of an application. With Florida’s State 404 Program in place, 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).
DEP in conjunction with USACE presented a two-part public webinar series in December 2020. These webinars included information about Florida’s preparations to assume administration of the dredge and fill permitting program under Section 404 of the federal Clean Water Act for certain wetlands and other surface waters in the state. The webinar content was tailored to future applicants and environmental professionals who may submit applications on behalf of clients; however, all interested parties were invited to participate. The recordings for both webinars are available below.
Part 1 included general information about Florida’s proposed program. DEP staff covered 404 Program components, including rules, memoranda of agreement/understanding, and operating agreements between DEP and EPA, USACE, Florida’s Fish and Wildlife Conservation Commission (FWC), the U.S. Fish and Wildlife Service (USFWS) and the State Historic Preservation Office (SHPO). Information was also presented about program jurisdiction, state-assumed and USACE-retained waters, and types of authorization.
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.