Page Banner

State 404 Program Frequently Asked Questions (FAQ) and Answers

Topics
Each topic may have multiple questions, and some questions may be repeated under different topics.
Transfer of Pending Projects from USACE to DEP
State 404 Program Processes
Public Notice and Notification of Receipt of Application
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 5 Years to Complete
Listed Species

Transfer of Pending Projects from the U.S. Army Corps of Engineers to DEP

What happened to the projects pending with the U.S. Army Corps of Engineers (USACE) when DEP was granted assumption in December 2020?

There were 591 pending projects transferred from USACE to DEP, many of which were requests for USACE Approved Jurisdictional Determinations (AJDs) under the new federal Navigable Waters Protection Rule. DEP is not performing stand-alone Waters of the United States (WOTUS) jurisdictional determinations under the State 404 Program. If the transferred project contained only a request for a stand-alone AJD, DEP sent the applicant an email notifying them that DEP would not be performing stand-alone WOTUS determination and providing the applicant three options for obtaining a jurisdictional determination (see next question for more information).

Of the 591 projects transferred, 380 pending projects were requesting something other than a stand-alone AJD (permits or “No Permit Required” determinations); these are currently being processed by DEP local district offices or DEP’s Mining and Mitigation program.

Is it true that projects transferred from USACE need to start the State 404 Program process from the beginning, no matter how far along the USACE review was in process?

Yes, it is true.

The “Memorandum of Agreement between the Florida Department of Environmental Protection and the United States Environmental Protection Agency” states:

Section I. B. (2) -  “FDEP shall administer and enforce the State 404 Permit Program in accordance with those state laws and administrative rules that are components of the federally authorized State 404 Permit Program in the State of Florida (40 C.F.R. § 233.72), and in accordance with Section 404 State Program Regulations (40 C.F.R. Part 233), the CWA, Section 404(b)(1) Guidelines (40 C.F.R. Part 230, Section 404(b)(1) Guidelines for Specifications of Disposal Sites for Dredged or Fill Material) (hereinafter “404(b)(1) Guidelines”), and provisions contained in this Agreement and the Memorandum of Agreement between FDEP and the United States Army Corps of Engineers (Corps).

DEP’s state laws and administrative rules related to the State 404 Program were approved by the U.S. Environmental Protection Agency (EPA) and must be used to review all State 404 Program permits. DEP’s State 404 Program rule, Chapter 62-331, F.A.C., was created to bring in the requirements of federal law that were not already addressed by the ERP program (Chapter 62-330, F.A.C.). Since federal and state rules differ, no matter how far along the USACE review process was for an application (even if the USACE review was near final or was publicly noticed), DEP is still required to start from the beginning. For individual permits, the project will need to be publicly noticed under DEP review.

Fortunately, DEP will be able to use the material already submitted to USACE through its review to assist with the DEP review. The additional information or public comments already submitted to the USACE may assist DEP with a more efficient review.

State 404 Program Processes

General information for all State 404 Program reviews:

  • Delineation of the boundary of wetlands and other surface waters will be done in accordance with Chapter 62-340, F.A.C.
  • 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 WOTUS, and will treat them as if they are, unless the applicant specifically requests a WOTUS determination and provides information clearly demonstrating why they believe one or more waters are not WOTUS. The Information Required for a WOTUS Determination in State-assumed Waters form is provided to assist applicants in providing the necessary information.
  • Applications should be submitted on the appropriate state form (See State 404 Handbook, section 4.3).
  • When a project requires both a State 404 Program authorization and an Environmental Resource Permit (ERP) applicants are highly encouraged to waive the ERP issuance (agency action) timeframe to allow for completion of the State 404 Program review and to accommodate any required project modifications resulting from the 404 Program review. This does not change the usual 30-day completeness review or 60/90-day Request for Additional Information (RAI) timeframes – only the 60 day agency action timeframe after the ERP review has been declared complete. Applicants may do this by checking the waiver box on the application form or by sending an email to the permit processor.
  • The default issuance provisions in Chapter 120, F.S., do not apply to the State 404 Program because permits under Section 404 of the Clean Water Act cannot be issued by default. Other elements of state law that do not apply to State 404 Program permits may be found in the State 404 Program Applicant’s Handbook, section 8.4.
  • State 404 Program permits shall be issued for a duration of no more than five years, and each permit shall contain no more than five years’ worth of work.
  • Projects that will take more than five years to complete are required to submit information in accordance with section 5.3.2 of the State 404 Program Applicant’s Handbook – “Long-Term Conceptual Planning for Projects that will Take More Than One Phase to Complete.”

Does an applicant need to have the State 404 Program review and ERP review done at the same time?

Yes, the applicant should have the State 404 Program review and ERP review done at the same time in most cases.

The ERP application forms in Chapter 62-330, F.A.C., were modified to include items required under the State 404 Program, so they act as a joint application.

The State 404 Program Applicant’s Handbook, section 1.2, states:

Projects within state-assumed waters that are not otherwise exempt from permitting will require both a State 404 Program authorization and an ERP authorization. Processing of both authorizations will begin concurrently upon receipt of an application for a project, except where the activities requiring a State 404 permit are proposed to occur in a later phase of a project that will take more than the maximum permit duration allowed under federal law  to complete. In such cases an applicant may apply for the State 404 permit at a later date. Activities that require both an ERP and a State 404 permit shall not commence before both permits are obtained.

Generally, the only scenarios besides the phased project example above where the ERP and 404 may not be processed at the same time are:

  • The project was transferred from the USACE upon assumption and already received an ERP permit.
  • The project is processed as a post-enforcement permit.

I applied to the water management district for my ERP but received a notification that DEP was also processing a State 404 Program permit for my project. I didn’t ask for a State 404 permit. Why did this happen?

After the effective date of assumption (Dec. 22, 2020), any ERP application received by the water management districts or DEP that includes impacts to wetlands or surface waters is considered a joint ERP/404 application and is checked to determine if the project is within assumed waters and might need a State 404 Program permit. Any project submitted to a water management district with impacts to assumed waters is forwarded to the local DEP district office for State 404 Program review. The local DEP office will then begin processing the State 404 Program permit, if applicable. See previous question for additional details.

I’m confident that my project will not impact WOTUS, but DEP sent an email saying that they are processing a State 404 Program project. What if I don’t want State 404 Program review?

If you are confident that your project will not impact WOTUS, and you do not wish to pursue State 404 Program authorization, then you may make the decision and accept the risk of withdrawing the State 404 Program application. This can be done by sending an email to the processor who was assigned to your State 404 Program project review.

If you choose not to pursue a State 404 Program permit and later inspection reveals that WOTUS were impacted without a permit, you may be subject to enforcement under state and/or federal law.

What if I don’t want DEP to process a State 404 Program authorization for my project?

If you are confident that your project will not impact WOTUS, you may clearly state in your application form or in a cover letter that you do not believe your project will impact WOTUS, and you do not want a State 404 Program review. If DEP then determines during the ERP review that the project will impact WOTUS, then DEP will contact you to continue to process the State 404 Program authorization.

If you choose not to pursue a State 404 Program permit and later inspection reveals that WOTUS were impacted without a permit, you may be subject to enforcement under state and/or federal law.

What is the process for State 404 Program exemption verifications (40 C.F.R. 232.3, Appendix B of State 404 Program Applicant’s Handbook)?

A summary of the process is provided below:

  1. 30-day initial completeness review
  2. 60-day Request for Additional Information (if needed)
  3. Subsequent 30-day completeness review
  4. Final Agency Action (issuance or denial of verification)

How will DEP handle determinations that No Permit is Required (NPR)?

  • DEP may process a “No Permit Required” verification upon request by an applicant. “No Permit Required” verifications are limited to those activities outlined in the request. If any part of a project requires a State 404 Program permit, DEP will need to process a permit, and will not be able to provide an NPR verification. To request a “No Permit Required” verification, the following information is required:
    • Basic project information, including the project footprint.
    • Information demonstrating that wetlands onsite, delineated in accordance with Chapter 62-340, F.A.C., are not WOTUS pursuant to 40 C.F.R. 120. The Information Required for a WOTUS Determination in State-assumed Waters form is provided to assist applicants in providing the necessary information.
  • Large project sites and/or those requiring complex WOTUS determinations with multiple wetlands to evaluate typically take longer to complete than smaller or less complex project sites. NPR verifications do not have a set timeframe in rule, but DEP will strive to review as efficiently as possible.

How can I get a WOTUS jurisdictional determination within assumed waters if DEP is not performing stand-alone jurisdictional determinations?

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 WOTUS, and will treat them as if they are, unless the applicant clearly demonstrates otherwise. WOTUS determinations may take extra processing time. We highly encourage applicants to take advantage of the added efficiency of accepting WOTUS jurisdiction over all wetlands and other surface waters onsite.

If an applicant still wants to request a WOTUS jurisdictional determination, these three options are available:

  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 applicant is applying 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.”

What is the process for State 404 Program general permits (Sections 62-331.210-248, F.A.C. or assumed USACE regional general permits (RGPs))?

A summary of the process is provided below:

  1. 30-day initial completeness review
  2. 60 days for applicant to amend notice if additional information required (sent via general permit does not qualify (DNQ) letter)
  3. Subsequent 30-day completeness review
  4. Final Agency Action (issuance or denial of verification)

Notes for general permits:

  • State 404 Program general permits were modeled after the 2017 USACE nationwide permits (NWPs) for consistency, with the exception of section 62-331.248, F.A.C., which was modeled after USACE RGP SAJ-92. A crosswalk between the NWPs and State 404 general permits in Chapter 62-331, F.A.C., is below.
  • State 404 general permit notices are sent to the Florida Fish and Wildlife Conservation Commission (FWC), U.S. Fish and Wildlife Service (USFWS), and Tribal Historic Preservation Office(r)s for review. These coordinating entities may request that a project be elevated to an individual permit review if project may adversely affect state or federal listed species or historical, cultural, or tribal resources.
  • Additional time to amend notice may be granted with good cause upon request from applicant.
  • Seven USACE regional general permits were assumed for use within state-assumed waters; these include:
    • SAJ-13 – Aerial Transmission Lines in Florida
    • SAJ-14 – Sub-aqueous Utility and Transmission Lines in Florida
    • SAJ-86 – Residential, Commercial, Recreational, and Institutional Fill in the Choctawhatchee Bay, Lake Powell, and West Bay Basins, Bay and Walton County, Florida
    • SAJ-90 – Residential, Commercial, and Institutional Developments in Northeast Florida
    • SAJ-103 – Residential Fill in Holley By the Sea, a Subdivision in Santa Rosa County
    • SAJ-105 – Residential, Commercial, Recreational, and Institutional Fill in the West Bay Watershed of Bay County, Florida
    • SAJ-114 – Residential, Commercial, Recreational, and Institutional Fill in the Choctawhatchee Bay and St. Andrews Bay Watersheds Located in Bay County and Walton County, Florida

Cross-walk Between USACE Nationwide Permits and Similar State 404 Program General Permits

USACE Nationwide Permit Number

State 404 Program Rule Number

State 404 Program Title of General Permit

NWP 3
62-331.210
General Permit for Maintenance or Removal
NWP 4
62-331.211
General Permit for Fish and Wildlife Harvesting, Enhancement, and Attraction Devices
NWP 5
62-331.212
General Permit for Scientific Measurement Devices
NWP 6
62-331.213
General Permit for Survey Activities
NWP 7
62-331.214
General Permit for Outfall and Intake Structures
NWP 12
62-331.215
General Permit for Utility Line Activities
NWP 13
62-331.216
General Permit for Bank Stabilization
NWP 14
62-331.217
General Permit for Linear Transportation Projects
NWP 16
62-331.218
General Permit for Return Water from Upland Contained Disposal Areas
NWP 17
62-331.219
General Permit for Hydropower Projects
NWP 18
62-331.220
General Permit for Minor Activities
NWP 20
62-331.221
General Permit for Response Operations for Oil or Hazardous Substances
NWP 22
62-331.222
General Permit for Removal of Vessels
NWP 23
62-331.223
General Permit for Approved Categorical Exclusions
NWP 25
62-331.224
General Permit for Structural Activities
NWP 27
62-331.225
General Permit for Aquatic Habitat Restoration, Enhancement, and Creation Activities
NWP 28
62-331.226
General Permit for Specific Reversion Activities
NWP 29
62-331.227
General Permit for Residential Developments
NWP 30
62-331.228
General Permit for Moist Soil Management for Wildlife
NWP 31
62-331.229
General Permit for Maintenance of Existing Flood Control Facilities
NWP 32
62-331.230
General Permit for Completed Federal Enforcement Actions
NWP 33
62-331.231
General Permit for Temporary Construction, Access, and Dewatering
NWP 36
62-331.233
General Permit for Boat Ramps
NWP 37
62-331.234
General Permit for Emergency Watershed Protection and Rehabilitation
NWP38
62-331.235
General Permit for Cleanup of Hazardous and Toxic Waste
NWP 39
62-331.236
General Permit for Commercial and Institutional Developments
NWP 40
62-331.237
General Permit for Agricultural Activities
NWP 41
62-331.238
General Permit for Reshaping Existing Drainage Ditches
NWP 42
62-331.239
General Permit for Recreational Facilities
NWP 43
62-331.240
General Permit for Stormwater Management Facilities
NWP 44
62-331.241
General Permit for Mining Activities
NWP 45
62-331.242
General Permit for Repair of Uplands Damaged by Discreet Events
NWP 46
62-331.243
General Permit for Activities in Ditches
NWP 48
62-331.244
General Permit for Commercial Shellfish Aquaculture Activities
NWP 51
62-331.245
General Permit for Land-Based Renewable Energy Generation Facilities
NWP 52
62-331.246
General Permit for Water-Based Renewable Energy Generation Pilot  Projects
NWP 53
62-331.247
General Permit for Removal of Low-Head Dams
RGP 92
62-331.248
General Permit for Florida Department of Transportation and Florida’s Turnpike Enterprise

What is the process for State 404 Program individual permits?

A summary of the process is provided below:

  • 30-day initial completeness review
    • Notice of application is sent to the FWC, USFWS, State Historic Preservation Office, and Tribal Historic Preservation Office(r)s for initial review. These coordinating entities may provide comments, recommendations, or requests for additional information to be added to DEP’s Request for Additional Information (RAI).
  • 90-day RAI, if needed
  • Subsequent 30-day completeness review(s) and 90-day RAI period(s) as needed until project is found to be “administratively complete.”
    • An “administratively complete” project should be in its anticipated final form – meaning all RAI questions have been answered, commenting entities have provided initial comments, recommendations or preliminary determinations, necessary modifications for avoidance and minimization of impacts have been made, and mitigation has been reviewed (see section 62-331.060(1), F.A.C.).
  • Public Notice – Public notice occurs within 10 days of a project being deemed “administratively complete” by DEP. Public notice is done in accordance with section 62-331.060, F.A.C. Most projects will have a 30-day public comment period, but some limited projects may have a 15-day public comment period. Anyone may request a public meeting during the public comment period; if held, the comment period is extended until the end of the public meeting or later if a later date is approved by the presiding officer.
  • Review by EPA – EPA will review permit applications for certain categories of activities (see section 62-331.052(3), F.A.C.). These categories may be found in the State 404 Program Applicant’s Handbook, section 5.2.5. EPA’s initial 30-day review period starts on the same day as the public notice period, or the initial 30-day review may start on the date that DEP notifies EPA that it does not plan to take the recommendations of an affected state or tribe. EPA will forward copies of the application to USFWS, National Marine Fisheries Service, the USACE, and other entities as necessary. EPA will collect comments from these entities and provide them to DEP. EPA may comment on, provide notice of its intent to comment on, object to, make recommendations with respect to, or notify DEP that it is reserving its right to object to a permit application within the initial 30-day review. The following are possible outcomes of EPA’s review:
    1. EPA does not comment on, provide notice of its intent to comment on, object to, make recommendations with respect to, or notify DEP that it is reserving its right to object to a permit application within the initial 30-day review:
      • DEP shall make a final permit decision within 60 days after either the close of the public comment period or the project is declared technically complete, whichever occurs later. A “technically complete” project is one where all items necessary for review have been received – including the close of the public comment period or any information needed to address something brought up during public comment.
    2. EPA provides notice of its intent to comment on, object to, make recommendations with respect to, or if EPA does not wish to comment but wishes to reserve the right to object based on any new information brought out by the public during the comment period or at a public meeting within the initial 30-day review:
      • EPA’s review period is extended to 90 days after receipt of DEP’s notice.
      • If EPA does not comment, object, or make recommendations within 90 days of EPA’s receipt of DEP’s notice, DEP may take final agency action (issue or deny the permit).
      • When DEP has received an EPA objection or requirement for a permit condition:
        • DEP shall not issue the permit unless the steps required by the EPA to eliminate the objection or condition the permit have been taken.
        • If DEP chooses not to perform the required steps, the Agency may still issue an ERP permit under Chapter 62-330, F.A.C., but shall not issue a permit under this chapter. EPA may “federalize” the application – meaning that they may require that USACE process the application.
        • Within 90 days after DEP receives an objection or a requirement for a permit condition from EPA, the following may happen:
          • DEP or any interested party may request that the EPA hold a public meeting on the objection or requirement. EPA shall conduct a public meeting if requested by the Agency, or if warranted by significant public interest based on requests received.
            • If EPA holds a public meeting, EPA shall reaffirm, modify, or withdraw the objection or requirement for a permit condition, and notify DEP of that decision. There is no set timeframe for EPA to notify DEP of their decision.
            • DEP shall have 30 days after EPA gives notice of its decision, to take one of the following actions:
              • If EPA has withdrawn the objection or requirement for a permit condition, and the application is technically complete, DEP may issue the permit; or
              • If EPA has not withdrawn the objection or requirement for a permit condition, DEP shall do one of the following:
                • Issue a permit that includes the required permit condition and/or otherwise satisfies EPA’s objection;
                • Notify EPA of its intent to deny the permit; or
                • Notify EPA and the applicant that DEP intends to take no action, in which case, the EPA shall “federalize” the project and USACE shall process the section 404 authorization. 
          • If EPA does not hold a public meeting, DEP shall, within 90 days of receipt of the objection or requirement for a permit condition, either issue the permit revised to satisfy EPA’s objections or notify EPA of its intent to deny the permit.

Public Notice and Notification of Receipt of Application

How can I receive notification when a State 404 Program application is submitted in my area of interest?

Anyone may sign up to be notified when a State 404 Program application is received through DEP’s “Permit Application Subscription Service” (PASS). You may do this by following these steps:

  1. Access DEP’s Business Portal at https://www.fldepportal.com/DepPortal/go/home. You will need to register when prompted if you do not already have an account.
  2. Click on “Sign Up.”
  3. Click on “Subscriptions.”
  4. Click on “Submitted Permit Applications.”
  5. Follow the prompts to subscribe and set account preferences/notifications.

How can I access State 404 Program public notices?

State 404 Program applications for an individual permit are put out on public notice after they are considered “administratively complete.” An administratively complete project is one that has undergone review and is in its anticipated final form, meaning all requests for additional information have been answered, commenting entities have provided initial comments, recommendations or preliminary determinations, necessary modifications for avoidance and minimization of impacts have been made, and mitigation has been reviewed (see section 62-331.060(1), F.A.C.). There may be several months between receipt of a permit application and public notice.

State 404 Program public notices are sent directly to adjacent property owners, interested parties, potentially affected states and tribes (tribes get notification that a project has gone out on public notice, as they are sovereign nations and not members of the public), and agencies that have jurisdiction over the project area.

Public notices are also posted on DEP’s website. Each DEP local district office or program area will place public notices within their district on their respective websites.

How can I view State 404 Program files?

Anyone may look up State 404 Program files using the DEP Information Portal or OCULUS system. You can find more information about how to access and these sources on DEP’s Public Records webpage.

Please note that while almost all file information is available for public review, some items are exempt from public access under the sunshine law and may not be available through the systems mentioned above. These may include:

  • Location information for sensitive cultural or archaeological sites;
  • Trade secrets; and
  • Attorney-Client work product.

Delineation and Jurisdiction

Does the State 404 Program use the state delineation method under Chapter 62-340, F.A.C., or the federal delineation method outlined in the 1987 USACE manual?

Delineations for projects that require review under the State 404 Program are required to be performed using the state delineation method under Chapter 62-340, F.A.C.

Delineations using the federal method cannot be accepted and will need to be verified using Chapter 62-340, F.A.C. Consultants that wish to use and submit the Chapter 62-340, F.A.C. Data Form may do so; however, DEP review staff will still need to verify the delineation in the field. A Data Form guide and Instructions are available in ERP Applicants Handbook Volume I, Appendices J and K.

Does DEP perform WOTUS jurisdictional determinations under the Navigable Waters Protection Rule (EPA version at 40 C.F.R. 120 or USACE version at 33 C.F.R. 328)?

DEP will not perform stand-alone WOTUS jurisdictional determinations under the State 404 Program.

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 WOTUS, and will treat them as if they are, unless the applicant clearly demonstrates otherwise. WOTUS determinations may take extra processing time. We highly encourage applicants to take advantage of the added efficiency of accepting WOTUS jurisdiction over all wetlands and other surface waters onsite.

If an applicant still wants to request a WOTUS jurisdictional determination, these three options are available:

  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 applicant is applying 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.”

I already have an existing, valid, USACE Approved Jurisdictional Determination (AJD). Can I still use it under the State 404 Program?

Existing, valid, USACE-issued AJDs will be accepted by DEP for only one purpose – to determine which waters are not WOTUS. AJDs done under the old WOTUS rule or the new Navigable Waters Protection rule that became effective on June 22, 2020 may be accepted as long as they have not expired.

Delineation of the boundary of wetlands and other surface waters will need to be done using the state’s delineation rule under Chapter 62-340, F.A.C.

I have an existing, valid, formal determination under Chapter 62-340, F.A.C., can I use it under the State 404 Program?

Yes, existing, valid formal determinations can be used for State 404 Program reviews.

I have both an existing, valid USACE AJD and an existing, valid, Chapter 62-340, F.A.C., formal determination. Can I use both under the State 404 Program?

Yes. The Chapter 62-340, F.A.C., formal determination may be used to show the boundary of wetlands and other surface waters, and the existing, valid, USACE AJD may be used to determine which, if any, of those waters are not WOTUS.

Regulated and Non-regulated Activities

Which activities are regulated under the State 404 Program?

The State 404 Program regulates “activities” as defined in the State 404 Program Applicant’s Handbook, section 2.0:

“Activity” for the purposes of the State 404 Program only, means “discharge of dredged material” and/or “discharge of fill material” as those terms are defined in 40 CFR § 232.2 (see Appendix B). The terms “dredge”, “fill”, “dredging”, and “filling”, when used within Chapter 62-331, F.A.C., or this Handbook shall be interchangeable with “activity” as defined herein.

Which activities are not regulated under the State 404 Program?

Activities that do not meet the definitions of “discharge of dredged material” and/or “discharge of fill material” as those terms are defined in 40 C.F.R. § 232.2 (see Appendix B of the State 404 Program Applicant’s Handbook) are not regulated under the State 404 Program. Some examples include:

  • Incidental fallback;
  • Docks and piers constructed with typical pile-supported construction methods; and
  • Piling-supported bridge structures (however, any associated fill would be regulated).

Projects that do not require a permit under Section 404 of the Clean Water Act may still require a permit from the USACE under Section 10 of the Rivers and Harbors Act or other federal laws.

Mitigation Requirements

Is DEP requiring federal mitigation bank and in-lieu fee credits for impacts under the State 404 Program?

Yes. Mitigation banks and in-lieu fee programs under section 404 of the Clean Water Act are reviewed slightly differently than state mitigation banks under the Environmental Resource Permitting (ERP) program. To account for these differences and to provide consistency in review and sufficient mitigation for impacts, DEP will require purchase of federal credits when an applicant proposes to use a mitigation bank or in-lieu fee program to offset their impacts under the State 404 Program.

It should be noted that this is not a new requirement but is rather “business as usual” for the state. Prior to assumption, applicants were required to purchase both federal credits for any USACE-permitted impacts and state credits for impacts under the state’s ERP program.

State credits will not be accepted to offset State 404 Program impacts.

Is DEP required to follow the federal mitigation hierarchy?

Yes; a requirement for states to assume is that a state program must be at least as stringent as the federal program, and that the state program must meet or exceed the requirements in the 404(b)1 guidelines found at 40 C.F.R. 230. The federal mitigation hierarchy is found in the 404(b)1 guidelines and was incorporated into the State 404 Program in section 62-331.130(1), F.A.C., and in the State 404 Program Applicant’s Handbook, section 8.5.1.

It is recognized that flexibility may be needed to address watershed needs and allow for the consideration of mitigation projects that are environmentally preferable based on a watershed approach, if such projects are consistent with the requirements of the State 404 Handbook, section 8.5.1. It may be appropriate to override the preferential hierarchy, for example, where an in-lieu fee program has released credits available from a specific approved in-lieu fee project, or a permittee-responsible project will restore an outstanding resource based on rigorous scientific and technical analysis. If an applicant wishes to override the hierarchy, they should provide an explanation and justification for doing so when mitigation is proposed. DEP will review such information and determine whether the proposed mitigation is appropriate.

Modification of Existing USACE Permits within Assumed Waters

What if I want to modify my existing, valid, USACE permit, but the project is now within assumed waters? Who will process the modification?

The USACE has limited ability to process modifications within assumed waters. The “Memorandum of Agreement Between the Florida Department of Environmental Protection and the Department of the Army,” section IV. A. (2), states:

(2) The Corps retains authority to make minor modifications to DA permits in State assumed waters. Minor modifications are generally ministerial in nature, and shall include the following: a) to correct errors or typographical mistakes; b) to incorporate changes requested by the Corps; c) to change due dates for reporting or performance deadlines; d) to transfer a permit upon a change in ownership or control; and e) to make minor technical changes. Minor modifications may include other minor changes; however, in no case will a minor modification expand the volume or amount, enlarge the footprint, change the location, or extend the duration of the authorized discharge. The Corps will refer modifications that it determines, in its sole discretion, to fall outside the scope of a minor modification to DEP for evaluation of a permit under the State 404 Program.

If your modification does not qualify as a minor modification that the USACE may process, as defined above, then it will need to be processed by DEP as a new permit under the State 404 Program. Just to be clear, DEP will process a new permit, not a modification, for the project. Please submit a copy of the original USACE permit(s) with your completed State 404 Program application for a new permit, and the following additional information:

  1. A description of work already completed under the original permit;
  2. A description of work that has not yet been completed; and
  3. A description of the requested project modifications.

I want to modify my long-term USACE permit that is now within assumed waters – does this mean my project will be limited to five years?

Yes; modifications to existing USACE permits within state-assumed waters require DEP to process and issue a new permit under the State 404 Program. State 404 permits are limited in duration under federal law. Current federal law limits the duration of state-issued section 404 permits to 5 years. Because of this, each permit can only contain 5 years’ worth of work.

If you need a modification to an existing Corps permit that has more than 5 years’ worth of work remaining, you will need to break the project into 5-year phases and follow the long-term conceptual planning process outlined in the State 404 Program Applicant’s Handbook, section 5.3.2. More information about the long-term planning is also available below.

Long-term Planning for Projects that Require More than Five Years to Complete

State 404 Program permits are limited in duration to five years. What if my project will take longer than five years to complete?

State 404 permits are limited in duration under federal law. Current federal law limits the duration of state-issued section 404 permits to five years. Because of this, each permit can only contain five years’ worth of work. Larger projects may need to be divided up and completed in five-year phases so as not to exceed the maximum per-permit duration. Such projects may include, but are not limited to, residential, governmental, or commercial developments, linear transportation, and mining activities. To provide some regulatory certainty to applicants of these larger projects, subsection 62-331.051(2), F.A.C., provides that all activities reasonably related to the project shall be included in the same permit application, which means that the applicant should provide sufficient information for the agency to review the entire scope of the project. This will enable the agency to assess whether the project as a whole meets the requirements of Chapter 62-331, F.A.C., and the State 404 Program Applicant’s Handbook.

The State 404 Program Applicant’s Handbook, section 5.3.2, contains a requirement for the applicant to create and submit a long-term planning document to assist DEP in conducting a holistic review of the project, and to help provide some certainty that future phases may be permittable. If you have a long-term project, please carefully review the applicant’s handbook, and contact your local DEP district office or program (mining, mitigation banking, everglades) office to schedule a pre-application meeting to discuss.

Listed Species

Will an applicant still need a USFWS Section 7 biological opinion? If so, how is it obtained?

Endangered species coordination between the USACE and the USFWS for Clean Water Act (404) permits is typically referred to as Section 7 consultation. Because section 7 of the Endangered Species Act (ESA) describes federal coordination, the terminology “Section 7 consultation” is not used between Florida and the USFWS when coordinating on State 404 permit reviews. However, the EPA did complete section 7 consultation with the USFWS in regard to its approval of Florida’s State 404 program. The USFWS programmatic biological opinion (State 404 BiOp) that covers the EPA’s approval of Florida’s assumption is the mechanism by which technical assistance between USFWS and DEP has been established. The State 404 BiOp’s establishment of a technical assistance process between DEP and USFWS ensures that no State 404 permit will be likely to jeopardize the continued existence of any listed species or results in the destruction or adverse modification of critical habitat. This technical assistance process results in a project-level analysis that allows DEP to request comments and receive input from the USFWS and to incorporate protection measures into permits. 

Are applicants responsible for providing DEP information regarding federal and state-listed species that may be affected by the proposed activities submitted to the State 404 program?

Yes, as much information as possible must be submitted with the State 404 permit application. This information includes:

  • A complete description of existing and proposed activities, including drawings, plans, locations, purpose, and intended use property.
    • This description should also include a discussion of whether a proposed activity will affect or adversely impact listed species on adjacent properties, which would not occur except as a result of the proposed activity.
  • The names of any federal or state-listed listed species or federally designated critical habitat that might be affected by, or is in the vicinity of, the proposed activity should be included in the submittal.
    • How these listed species or habitats might be affected should be discussed, as well any actions proposed to be taken by the applicant to avoid and minimize the adverse effects.
    • The discussion should include all direct, indirect, secondary and cumulative adverse effects and impacts. In summary, all information needed in order for the state to assess and address potential adverse impacts to listed species should be submitted by the applicant as part of the permit application.

Many of these requirements are outlined in section 62-331.060(1), F.A.C., the application form, the State 404 Program Applicant’s Handbook and the Applicant’s Handbook Volume I. For federally listed species, the USFWS has an online project planning tool called Information for Planning and Consultation (IPaC) at https://ecos.fws.gov/ipac/. This tool is capable of identifying federal resources based on user-drawn project locations, providing resource lists. For some species, the tool may provide information such as conservation measures. In some instances, species surveys may be needed. Applicants are encouraged to engage in pre-application reviews with DEP, who can coordinate the submitted pre-application information with the state and federal wildlife agencies.

How are federal and state-listed species reviews performed during the State 404 permit application review process?

Upon receipt of a submitted State 404 permit application, DEP forwards the information to FWC and the USFWS requesting their review and comment. FWC provides state-listed species and habitat reviews for the State 404 Program, as well as for Florida’s Environmental Resource Program. For the State 404 Program, FWC and the USFWS collaborate on their reviews for listed species (fish and wildlife) regarding additional information or questions, as well as potential avoidance and minimization measures that may be needed. For State 404 individual permit applications, FWC acts as the listed species coordinator for DEP. FWC and USFWS coordinate directly with each other, and FWC consolidates the state and federal reviews into one correspondence for DEP. This ensures a comprehensive, coordinated review of potential effects and impacts to federal listed and state-listed species and their habitats.

Will an applicant be required to obtain an incidental take permit (ITP) and a habitat conservation plan (HCP) through Section 10 review?

The USFWS State 404 BiOp includes a programmatic incidental take statement (ITS) that exempts any incidental take that results from the issuance of a State 404 permit from being considered as prohibited take under section 9 of the ESA. The exemption from section 9 prohibitions provide by the ITS covers the permittee as long as the permittee abides by the State 404 permit conditions. Therefore, no HCP and ITP through Section 10 is required to obtain a State 404 permit even if the action permitted by the 404 permit results in incidental take. However, an applicant may voluntarily contact the USFWS to see if potential impacts to federally listed species can be resolved before applying for a State 404 permit. This strategy may be helpful for projects with complex issues (such as multi-phase or long-term projects, those with large amounts of habitat or listed species, critical habitats and sensitive habitats, etc.) that may require a significant amount of coordination with USFWS in order to evaluate and resolve any impacts to federally listed species. If these issues can be resolved prior to application for the State 404 permit, State 404 rules provide that no additional protection measures are required for federally-listed species if the applicant already has a previously issued biological opinion, HCP/ITP, or similar effects resolution document from the USFWS.

Share:          
Last Modified:
May 11, 2021 - 8:14am

Some content on this site is saved in an alternative format. The following icons link to free Reader/Viewer software:
PDF: | Word: | Excel: