State Assumption of the Clean Water Act Section 404 Permitting Program: Part I, an Overview

The Clean Water Act 404 governs activities that put dirt or other materials into U.S. waters. In Florida and most other states, you need permits from the U.S. Army Corps of Engineers and the Florida Department of Environmental Protection for these activities. But Florida is trying to take over the permitting process from the federal government to make things easier and more efficient. The state has been working with the EPA, the corps, and other agencies to make this happen and has come up with rules for the new program. The Florida Department of Environmental Protection (DEP) applied to the EPA to take over the Clean Water Act (CWA) program for issuing permits for activities in and around water. If approved, Florida would be the third state to take over this program. The EPA has until December 17, 2020, to make a decision. If approved, new rules for getting permits would go into effect and permits would be issued by the state instead of the federal government. DEP has been training staff to implement a state 404 permit program and working with water management districts to make sure everything runs smoothly. They have agreements with EPA, the corps, and the U.S. Fish and Wildlife Service to define their roles in administering the program. Not all waters can be managed by the state, and the corps will retain control over certain bodies of water. They will also provide maps and data to help with this process. After the state of Florida takes over issuing permits for certain waters, the Department of Environmental Protection (DEP) will still coordinate with the federal Environmental Protection Agency and the Army Corps of Engineers for certain areas. If a project has the potential to impact Native American lands, the DEP will notify the tribe and the EPA. Also, the DEP can use credits from the corps-approved mitigation programs to offset environmental damage caused by permits issued under the state program. Even though applicants will only fill out one form, they will still need two permits – one from the DEP or a water management district, and one from the DEP. However, the process should be faster and more efficient due to the DEP’s collaboration with the water management districts. In the future, DEP might let the water management districts issue state 404 permits. The new state 404 permit rule sets out the requirements for federal law not covered in the ERP rules. It also outlines how the permits will be reviewed and noticed to the public. DEP is making some small changes to be consistent with the new rule. The federal and state programs for wetlands protection have different rules. The federal program requires applicants to show they are reducing impacts to wetlands and considering alternative sites. The state program does not have this requirement. The federal program also prefers using mitigation banks to offset impacts, while the state program allows on-site or off-site mitigation. There are also different exemptions available in each program. The state 404 permit program is not subject to certain state laws and timelines, like those for permitting in Florida. The program also encourages applicants to voluntarily waive timeframes for environmental resource permits to align with the state 404 permits. This will prevent later changes to the environmental resource permits to match the state 404 permits. Federal law governs the 404 permit program, and Florida’s Department of Environmental Protection is working on taking over this program from the federal government. The Florida Department of Environmental Protection (DEP) wants to take over the process of giving permits for activities that might affect wetlands. They sent a request to the Environmental Protection Agency (EPA) with a lot of paperwork to support their request, like a letter from the governor, a program description, and agreements with other agencies. If the EPA approves their request, DEP will be in charge of giving permits for activities that could affect wetlands in Florida. This has already been done by two other states, Michigan and New Jersey. It won’t change who gives permits for other water-related activities in Florida. The Environmental Protection Agency (EPA) has the authority to review certain types of permits issued by the Florida Department of Environmental Protection (DEP) and the U.S. Army Corps of Engineers. They have to check permits that could affect water in other states or tribes, endangered species, public water supplies, and more. They also have to follow guidelines to protect endangered species and their habitats. The DEP, the Florida Fish and Wildlife Conservation Commission, and the U.S. Fish and Wildlife Service have agreements in place to work together on these permits and to protect the environment. If the U.S. Fish and Wildlife Service issues a statement about how to protect wildlife, the DEP and the Fish and Wildlife Commission have to work with them to follow those rules for state permits. The Florida Department of Environmental Protection and the U.S. Army Corps of Engineers have an agreement about who is responsible for regulating certain bodies of water in Florida. The Corps will handle permits for certain rivers, creeks, and lakes, as well as tidal waters and wetlands. The agreement also mentions Indian country and federally recognized tribes. This agreement follows the law in 33 U.S.C. §408. The state has rules about building things in water, and the Department of Environmental Protection has a handbook for people who want to get a permit to build in or near water. The handbook explains that the state has control over some permits, but the Army Corps of Engineers still has control over others. This means that you might need to get two different permits if you want to build in certain areas. Susan Roeder Martin and Rachael B. Santana are lawyers who know a lot about these rules and can help people get the permits they need. This column is written by the Environmental and Land Use Law Section. The section is led by Rachael Bruce Santana and edited by Felicia Kitzmiller. The section aims to teach its members about serving the public, improving how justice is served, and advancing the study of law.

Source: https://www.floridabar.org/the-florida-bar-journal/state-assumption-of-the-clean-water-act-section-404-permitting-program-part-i-an-overview/