State Assumption of the Federal Dredge-and-Fill Permitting Program: The Search for the Holy Grail

The U.S. Army Corps of Engineers has the authority to issue permits for dredging and filling in the waters of the United States. This can cause delays for projects that also need a permit from the Florida Department of Environmental Protection. A new law, H.B. 7043, could allow the state of Florida to take over this permitting authority from the Corps, making the process faster and more predictable for developers. This change would align with the Clean Water Act’s goal of giving states more control over pollution prevention. If the state can show that it has a good plan for issuing permits, the Environmental Protection Agency could approve this change. House Bill 7043 gives the Florida Department of Environmental Protection (FDEP) the power to take over the federal permitting program for activities that could impact wetlands and waterways. This means FDEP can make decisions about these permits instead of the federal government. The new law does not weaken environmental protections, and FDEP has to follow the same rules as the federal government. The law also lets FDEP make its own rules for issuing permits, instead of following default rules set by the state. But FDEP has to go through a specific process before it can take over the permitting program. Florida wants to take over the responsibility of issuing permits for certain activities that affect wetlands. To do this, they need to ask the EPA for permission and show that they have the laws, resources, and procedures in place to handle this responsibility. They also need to get a special agreement with the EPA and the Army Corps of Engineers. The state attorney general has to give a statement saying that Florida’s laws are good enough to do this job. To take over the 404 permitting program in Florida, the state needs to make agreements with the Environmental Protection Agency (EPA) and the Secretary of the Army. These agreements outline the responsibilities of the state and the federal government in administering and enforcing the program. Once the agreements are in place, the EPA has 120 days to review Florida’s program submission and decide if the state has the authority to issue permits under the program. If approved, the state can take over the program. The state of Florida wants to take over the responsibility of issuing permits for certain types of wetlands and surface waters from the federal government. However, there are some challenges they need to overcome for this to be successful. One issue is that the federal government may want to keep control over a large area of wetlands and waters, which would limit the benefits of the state taking over. If the federal government doesn’t agree to give up control over these areas, it could make the state’s plan less effective. Section 404(g)(1) of the Clean Water Act (CWA) says that the Army Corps of Engineers can’t give up its authority to issue permits for activities in certain types of waterways. These waterways are also covered by Section 10 of the Rivers and Harbors Act (RHA), which gives the Corps authority to approve structures and activities that could affect navigation. The Corps should only keep permitting authority over the same waterways covered by both laws, except for those based only on historical use. Some states want to take over this permitting authority to make things more efficient, but there’s confusion about which waterways they can take over. A committee provided recommendations to clarify this, but the Corps members on the committee want to keep things the way they are. The corps made recommendations that don’t match the actual law and regulations. The law says that the corps should only have control over certain kinds of waters, but the corps wants to control more. The majority of the final report says the corps should only have control over waters used for commerce now, but the minority report says they should have control over more waters. The minority recommendations from the corps don’t match up with what Congress intended for the Clean Water Act. Congress meant for the corps to keep jurisdiction over certain waters for the 404 program assumption, but the corps is interpreting it differently. The corps also wants to keep control over more wetlands than necessary, which goes against the purpose of the law. The subcommittee recommended that the corps should keep control over wetlands next to certain bodies of water within a certain area. They suggested that the state and the corps should agree on where this boundary should be. If they don’t agree, there would be a default boundary of 300 feet from the water’s edge. This recommendation is more reasonable and in line with the Clean Water Act and Rivers and Harbors Act.

The subcommittee also talked about how Florida has had trouble getting permission to do certain projects because of the Endangered Species Act. This law says that you need permission to harm or disturb animals that are in danger of going extinct. There are two ways to get this permission, depending on if the project is being done by the government or not. Section 7 of the ESA requires federal agencies to consult with wildlife services to see if a project will hurt endangered species. If it will, they need to go through a formal consultation process. This process is faster and less complicated than getting a permit under Section 10. Florida didn’t want to take over the permit program because they thought it would make it harder for projects to get approved. Florida wants to take over issuing permits for building on wetlands from the federal government. This would make the process faster and more efficient. But in order for it to work, Florida needs to make a plan with the EPA and FWS so that people who apply for a state permit can still get permission to build on land that’s home to endangered species. The success of this plan will determine if Florida can take over the permit process. Senator Stafford from Vermont believes that the state should have the main responsibility for controlling pollution under the Clean Water Act. Certain types of waters, like those used for transportation or affected by the tide, are excluded. States can work with the federal government to issue permits for activities that could affect these waters. The Clean Water Act gives the federal government authority over certain types of waters, but encourages states to take on more responsibility. This includes waters that are currently or could be used for transportation and those affected by the tide. There have been reports and discussions on this topic. The information is about a lawyer who helps clients with environmental laws and regulations. The lawyer represents clients in getting permits for environmental projects. This information was provided by the Environmental and Land Use Law Section.

Source: https://www.floridabar.org/the-florida-bar-journal/state-assumption-of-the-federal-dredge-and-fill-permitting-program-the-search-for-the-holy-grail/