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State 404 Program

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About the State 404 Program

On Dec. 22, 2020, the U.S. Environmental Protection Agency (EPA) published their approval of Florida’s State 404 Program in the Federal Register, and the Florida Department of Environmental Protection (DEP) began administering the State 404 Program on that date.

Background

In 2018,  Florida's legislature passed a bill 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, 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. Florida submitted its assumption package to the EPA on Aug. 20, 2020.

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.

EPA approved Florida’s program on Dec. 17, 2020. The State 404 Program became effective on Dec. 22, 2020, the date EPA published approval in the Federal Register.

Frequently Asked Questions (FAQ) and Answers about the State 404 Program

Find answers to the most common State 404 Program questions. Some of these topics are also discussed in more detail within this webpage, below. Topics include:

  • Transfer of Pending Projects from the U.S. Army Corps of Engineers (USACE) to DEP
  • State 404 Program Processes
  • Delineation and Jurisdiction
  • Regulated and Non-regulated Activities
  • Mitigation Requirements
  • Modification of Existing USACE Permits within Assumed Waters
  • Long-term Planning for Projects that Require More than Five Years to Complete
  • Listed Species

Who Processes 404 Applications?

DEP processes applications under Section 404 of the Clean Water Act within state-assumed waters, and the USACE processes Section 404 applications within retained waters (see below).

Under section 404 of the Clean Water Act, states may assume authority to implement the section 404 dredge and fill permitting program only for certain waters. These waters are called “state-assumed waters” or “assumed waters” under the State 404 Program. State-assumed waters include all Waters of the United States (WOTUS) where section 404 permitting authority is not retained by the USACE. Waters where permitting authority is retained by the USACE are called “retained waters.”

The definition of retained waters, as stated in the State 404 Program Applicant’s Handbook, is:

“Those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to their mean high water mark, including wetlands adjacent thereto. The Corps will retain responsibility for permitting for the discharge of dredged or fill material in those waters identified in the Retained Waters List (Appendix A), as well as all waters subject to the ebb and flow of the tide shoreward to their mean high water mark that are not specifically listed in the Retained Waters List, including wetlands adjacent thereto landward to the administrative boundary. The administrative boundary demarcating the adjacent wetlands over which jurisdiction is retained by the Corps is a 300-foot guideline established from the ordinary high water mark or mean high tide line of the retained water. In the case of a project that involves discharges of dredged or fill material both waterward and landward of the 300-foot guideline, the Corps will retain jurisdiction to the landward boundary of the project for the purposes of that project only.”

The USACE also retains permitting authority for projects within “Indian country” as that term is defined at 18 U.S.C. § 1151.

For the purposes of determining retained or state-assumed waters, the boundary of a mitigation bank, excluding the service area, shall be considered the project boundary, even if only a portion of the bank requires a dredge and fill permit under Section 404 of the CWA.

Retained Waters Screening Tool

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 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).

The definition of “adjacent” in the Navigable Waters Protection Rule at 40 C.F.R. 120 applies when determining whether a water within the 300-foot guide line is retained or assumed. If a water falls within the guide line, but is not “adjacent” to the retained water to which the guide line is applied (for example, it is separated from the retained water by an upland and there is no culvert or other connection to the retained water), then the 404 application for the project will be processed by DEP.

Rules, Forms, and Other Materials

State 404 Program Rules

The State 404 Program rules frequently reference the Environmental Resource Permitting (ERP) rules:

State 404 Program Forms and Submittal

Application Forms

The State 404 Program and ERP Permit application forms are joint applications meant to include information required for both the ERP and the State 404 Program authorizations. Applicants should submit information on the form for the highest form of authorization needed. For example, if you need a State 404 Program individual permit and an ERP general permit, you should submit the individual permit form including all required sections.

The application should be submitted to the agency that will process the associated ERP application (DEP, water management district, or delegated local government). If the water management district or delegated local government receives an application for a project within assumed waters, that agency will forward a copy of the application to DEP for processing of the State 404 Program authorization.

If a project does not require an ERP authorization, please submit the application to the appropriate DEP district or program (mitigation banking, mining, or Everglades) office for processing.

There are no additional fees for the State 404 Program review; however, applicants must pay the regular required fee for the ERP review.

The matrix below is intended to assist applicants in determining which form should be submitted to the agency depending on what combination of ERP and State 404 Program authorizations are needed.

Authorizations Needed 404 Exemption 404 General Permit 404 Individual Permit
No ERP Use form 62-330.050 Use form 62-330.402(1) Use form 62-330.060
ERP Exemption Use form 62-330.050 Use form 62-330.402(1) Use form 62-330.060
ERP General Permit Use form 62-330.402(1) Use form 62-330.402(1) Use form 62-330.060
ERP Individual Permit Use form 62-330.060 Use form 62-330.060 Use form 62-330.060
ERP Conceptual Approval Permit Use form 62-330.060 Use form 62-330.060 Use form 62-330.060
 

WOTUS Form

To provide certainty, streamlining, and efficiency, DEP will consider that any wetlands or other surface waters delineated in accordance with Chapter 62-340, F.A.C., that are regulated under Part IV of Chapter 373, F.S., could be considered Waters of the United States (WOTUS), and will treat them as if they are, unless the applicant clearly demonstrates otherwise. WOTUS determinations may take extra processing time. DEP highly encourages applicants to take advantage of the added efficiency of accepting WOTUS jurisdiction over all wetlands and other surface waters onsite.

DEP will not be performing stand-alone WOTUS jurisdictional determinations. Instead, these three options are available to applicants:

  1. Apply for a State 404 Program permit and specifically request that a WOTUS jurisdictional determination be completed during review of the permit application. Permit applications should contain all information required in the State 404 Program application forms and documentation demonstrating which waters the applicant believes are not WOTUS pursuant to 40 C.F.R. 120.
  2. Apply for a formal determination under Chapter 62-340, F.A.C., and request that DEP perform a WOTUS jurisdictional determination with the formal determination. The petitioner should include documentation demonstrating which waters the applicant believes are not WOTUS pursuant to 40 C.F.R. 120, the petition form, and payment of the regular fee for a formal determination.
  3. If the project will not impact WOTUS, the applicant does not need to submit an application for a State 404 permit. However, if verification is required  from DEP or if the project will impact non-WOTUS wetlands and the application is only for an Environmental Resource Permit (ERP), the applicant may apply for a State 404 “No Permit Required” verification, which should include information about the project footprint, the location of wetlands and other surface waters onsite delineated pursuant to Chapter 62-340, F.A.C., and documentation demonstrating which waters the applicant believes are not WOTUS pursuant to 40 C.F.R. 120, if applicable.

When applying for one of the three options above, the applicant should include a wetland delineation done in accordance with Chapter 62-340, F.A.C., and the completed form “Information Required for a WOTUS Determination in State-assumed Waters.”

Other Materials

Florida’s assumption package submitted to EPA on Aug. 20, 2020, and associated materials (including the U.S. Fish and Wildlife Service Biological Opinion) are available for public review.

Public Webinars and Training

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: Dec. 10, 2020 from 2-4 p.m. EST

View the Dec. 10 recorded webinar.

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.

Part 2: Dec. 14, 2020 from 2-4 p.m. EST

View the Dec. 14 recorded webinar.

Part 2 covered tools, coordination, how to apply for a State 404 Program permit, and the DEP, USACE and EPA processes.

If you have questions about the webinars or need assistance viewing the recordings, please send an email to: State_404@FloridaDEP.gov.

Additional public webinars and training materials will be posted as they are provided.

Contact Us

If you have questions about a specific project or would like to schedule a pre-application meeting, please contact your local DEP district office.

If you have general questions about the State 404 Program, please email State_404@FloridaDEP.gov. Please do not send application materials to this email address.

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Last Modified:
July 8, 2021 - 1:57pm

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