Florida Seeks Control Of Section 404 Permitting

Florida is seeking to become the third state to transfer discharge permitting authority under Section 404 of the Clean Water Act from the federal government to the state under a clause that allows states to request such a transfer but has lain mostly unused for 43 years.

Dredging projects above a certain size currently require a permit from the Chief of Engineers, called a Section 404 permit, named after the relevant section of the Clean Water Act (CWA). Section 404 requires permits for any “discharges of fill material” including “without limitation placement of fill that is necessary for the construction of any structure or impoundment requiring rock, sand, dirt or other material for its construction; site-development fills for recreational, industrial, commercial, residential and other uses; causeways or road fills; dams and dikes; artificial islands; property protection or reclamation devices such as riprap, groins, seawalls, breakwaters and revetments; beach nourishment; levees; fill for intake and outfall pipes and subaqueous utility lines; fill associated with the creation of ponds; and any other work involving the discharge of fill or dredged material.”

The administration of Section 404 is shared between the Corps of Engineers and the Environmental Protection Agency. The U.S. Fish and Wildlife Service and National Marine Fisheries Service are given advisory roles in evaluating permitted projects.

Assumption Amendment

In amendments to the Clean Water Act in 1977 and 1987, Congress gave states and tribes the ability to assume responsibility for part of the Clean Water Act Section 404 permit program. To date, two states have done so: Michigan and New Jersey.

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On its website, under a heading titled “Why Would States or Tribes Consider Assuming the Section 404 Program?”, EPA explains, “State and tribal regulators are generally more familiar  with local aquatic resources, issues, and needs. An efficient state- or tribal-run program can help reduce delays and save money for permit applicants. States and tribes can also integrate dredged and fill permitting with traditional water quality programs, such as monitoring and water quality standards, or state/tribal land use planning requirements. Under an assumed program, Section 404 permit applicants may need only a single state or tribal permit for dredged or fill material discharges. Since more than a dozen states and tribes currently administer dredged and fill programs separate from the federal program, assuming the Section 404 program allows states and tribes to streamline the review process and reduce unnecessary paperwork and duplication. It may also reduce the potential for conflict between federal and state or tribal decisions or permitting conditions.”

Public Comment Period

Under a Florida law passed in 2018 and supported by then-Gov. Rick Scott, Florida was authorized to request that the permitting program be moved to the control of Department of Environmental Protection’s Environmental Resource Program. On August 20, 2020, EPA Region 4 received a package from Florida requesting to assume administration of the Section 404 program per the provisions of CWA Section 404(g)(1).

On September 16, EPA provided notice in the Federal Register of a 45-day public review and comment period  ; announced two public hearings that were held on October 21 and 27; and solicited public review and comment regarding consultation under the National Historic Preservation Act. The EPA’s public comment period on the request ends November 2. The EPA will announce its final decision December 17.

Assumption Rules And Costs

A state that wishes to take over permitting authority must demonstrate that its permitting program will be no less stringent than the federal government’s. Administering such a permitting program can be expensive. According to some sources, a number of states have looked at the possibility of assuming the Section 404 functions permitting over the years but have decided against it due to anticipated costs.

Florida conservation groups have come out against the proposal, partly for this reason. They are worried that the state either won’t allocate the resources necessary to administer the program or that it will curtail other environmental protection programs to do so.

Beth Alvi, policy director of Florida Audubon, wrote to The Waterways Journal, “Audubon does not support the state’s request for 404 assumption … adding an entire new federal wetland regulatory program without any additional staff or significant funding is unrealistic and will further undermine overall wetland protection objectives. DEP has many responsibilities and an already lean staff; if they reassign staff to meet the needs of the 404 program (as they have indicated they will) we will certainly see a loss of rigor in other environmental permitting programs.”

Weesam Khoury, a spokesperson for Florida DEP, wrote in an email, “Florida has more resources and expertise that is accessible to citizens and applicants. DEP has done a careful review of the state ERP [environmental resource permit] and federal 404 programs and a majority of these programs’ requirements overlap. The state has more than 400 DEP staff that work on ERP matters, including geologists, hydrologists, engineers and environmental scientists, who are experts in Florida’s diverse and unique environmental features. DEP is confident that these knowledgeable staff would be able to work together to handle this slight workload increase, as well as will bring localized expertise to the 404 permit review process and provide better access and customer service to community members and interested stakeholders.”

How much difference will state assumption make to dredgers? To those maintaining federal channels or operating in “certain tidal waters and other specified waters currently related to the transport of interstate or foreign commerce,” authority for which is retained by the Corps under CWA even after state assumption, probably not much. The Corps will retain jurisdiction over federal waterways and coastal waters under other existing authorities, including the Rivers and Harbors Appropriation Act of 1899.

For dredging operators in wetlands and non-federally regulated waterways, “State assumption of the 404 program would provide a streamlined permitting procedure where both federal and state requirements are addressed by state agencies,” Khoury said. “This would provide greater certainty to the regulated community, conserve resources of both applicant and regulator and would afford the state greater control over its natural resources while complying with federal law.”