Florida Dept. of Environmental Protection Takes Over Federal Wetlands Permit Process in State

The U.S. Environmental Protection Agency (EPA) on Dec. 17, 2020, signed an agreement to delegate to the Florida Department of Environmental Protection (FDEP) the authority to issue permits in the state under Section 404 of the federal Clean Water Act (CWA). Only two other states, New Jersey and Michigan, have assumed such authority. The assumption became effective on Dec. 22, 2020, when it was published in the Federal Register.¹

The core purpose of the 404 assumption is to provide a streamlined permitting procedure where both federal and state requirements are addressed by the same agency. In effect, it would be "one-stop shopping" for most wetlands permits. It is expected that such efficiencies will eventually reduce time and cost for the processing of permits. The new FDEP regulations include enforceable deadlines, shorter review periods and shorter comment periods. However, it is important to note that while FDEP will be administering the federal process, all Clean Water Act requirements (avoidance, minimization, mitigation, etc.) will remain. In turn, projects will still have to be approved by other federal agencies.

Key Points

• All existing 404 permits and jurisdictional determinations will remain valid for their term.
• All applications that were pending with the U.S. Army Corps of Engineers will be transferred to FDEP for future processing. FDEP will have the discretion to make all final decisions on the permits.
• Future applications may still be reviewed by the EPA and U.S. Fish and Wildlife Service. Both agencies will employ a new process for their reviews. There may be issues with manpower and review times.
• It is probable that the assumption process will be challenged in federal court. Moreover, it is unclear how the assumption will be received by the incoming Biden Administration given the opposition of many environmental non-governmental organizations.

The Clean Water Act

The CWA prohibits the discharge of dredge and fill materials into "waters of the United States" without a permit.² The Section 404 permitting program is a complex process that is administered by the Army Corps of Engineers and the EPA. However, Section 404(g) allows states to request authority to assume the 404 program by submitting a proposal to EPA describing the state permitting program and entering into a Memorandum of Agreement (MOA) with the federal agencies.³

House Bill 7043 (2018) granted FDEP authority to assume the 404 permitting program and to adopt, by rule, any federal criteria or regulations necessary to obtain assumption.⁴ The state rulemaking process was completed on July 21, 2020. Through this process⁵, the "State 404 Program," was created to bring in the requirements of federal law not already addressed by the existing Environmental Resource Permitting (ERP) program. On Aug. 20, 2020, the FDEP sent its 404 assumption package to EPA for review. This was subject to 45 days of public comment and two "virtual' hearings. Several thousand comments were received.

The New Process

The State 404 Program is a separate program from the existing Environmental Resource Permitting Program (ERP). The FDEP 404 Program provides three forms of authorization: verifications of exemption, general permits and individual permits. Projects requiring an individual permit will require both an ERP and a State 404 Program authorization. FDEP will implement the program through its six district offices, and its Mining and Mitigation Program (MMP) and Mitigation Banking Program (MBP) in Tallahassee.

While the standards for permit issuance remain the same, clearly the process will change considerably. Addressing a concern with staffing, FDEP has stated that the workload increase will not be significant given the overlap of issues. However, there is no question that FDEP staff will have to learn a new language. FDEP may seek to further delegate authority to Florida's five Water Management Districts under the CWA regulations.⁶

The 404 assumption transferred authority to FDEP to regulate state "assumed" waters. On the other hand, the Corps will maintain Section 404 authority over certain waters, referred to as "retained" waters. The "retained" waters include those waters that 1) are specifically listed in the Corps' Navigable Waters List, 2) waters subject to the ebb and flow of tide, and 3) wetlands adjacent thereto landward to a 300-foot administrative boundary as well as "Indian Country," as defined by the Memorandum of Agreement between FDEP and the Corps. If the proposed activity is located within Corps of Engineers "retained waters", FDEP will refer the applicant to the Corps and no further action on the 404 application will be taken by FDEP.

FDEP has created a mapping tool⁷ that depicts the approximate extent of "retained" waters, along with a 300-foot guideline. Users can create shapes that represent dredge/fill footprints of their proposed projects in order to determine if 404 permitting jurisdiction for a project will be retained by the Corps (footprints fully or partially within Retained Waters and/or Indian Country) or assumed by the state (footprints entirely outside of retained waters and Indian Country).

In addition to the rulemaking, FDEP will release its State 404 Program Applicant's Handbook to help persons understand the rules, procedures, standards and criteria that apply to the State 404 Program. The Handbook is considered binding. In turn, FDEP will soon make available the forms for submitting a permit application. Projects that are currently under consideration by the Corps will be transferred to FDEP. Under the MOA, the time limit for completing work authorized under an individual permit issued prior to the effective date of assumption will remain the expiration date stated in the permit instrument.

Within 10 days of the determination that the application is "administratively complete," FDEP will publish the public notice. Copies of the public notice will be distributed to the relevant and appropriate parties and commenting agencies. This triggers interagency coordination with the State Historical Preservation Officer (SHPO) and the Tribal Historical Preservation Officer (THPO), the Florida Fish and Wildlife Conservation Commission (FWC), U.S. Fish and Wildlife Service (USFWS), National Marine Fisheries Service (NMFS), Florida's Water Management Districts (WMDs) and EPA. The nature of the commenting process and roles of these agencies is described in their respective operating agreements.

A commenting agency may submit questions or comments for FDEP to include in a Request for Additional Information (RAI). A commenting agency may also provide comments to EPA and request that EPA object to a proposed activity. FDEP will forward the applicant's response to the RAI to each commenting agency for review, if applicable. Additional conditions may be included in the final authorization based upon the recommendation of a commenting agency to avoid or minimize potential adverse effects due to the project.

The EPA will continue to play a significant role in the process. Under the federal regulations, unless EPA has waived review, FDEP will provide EPA with the public notice for the proposed activity. EPA may choose to comment, condition or object to the proposed activity. EPA is prohibited from waiving review of permit applications for discharges with reasonable potential for affecting endangered or threatened species. Within 30 days of receipt of the public notice, EPA may notify FDEP of its intent to comment on the proposed activity. If EPA does not notify FDEP of an intent to comment, FDEP will make a final permit decision to issue or deny the permit 60 days after the end of the public comment period and after the application is technically complete.

Where EPA notifies FDEP of an intent to comment, FDEP will provide EPA 90 days to comment on the proposed activity. When necessary, FDEP may use the RAI to communicate any of EPA's comments or concerns with the applicant. FDEP will make a final agency action to issue or deny the permit after receiving EPA's comments (and RAI response). FDEP may choose to add EPA's conditions and make a final permitting decision to issue or deny the permit within 90 days of receipt of the objection or condition.

An individual permit is valid for five years. If the construction will not be completed before the authorization expires, the permittee may receive an administrative continuance of the authorization as long as the applicant submits an application for a new permit at least 180 days prior to the expiration (shorter than the former time period under federal law). Projects that are reasonably expected to take more than one phase to complete are expected to follow the long-term conceptual planning process described in Section 5.3.2 of the 404 Handbook. Given that a new permit would be required for subsequent phases, this could be problematic for long-term projects.

To date, Endangered Species Act (ESA) consultation with the USFWS and NMFS has been the primary impediment to 404 permit assumption. The ESA prohibits the unauthorized "take" of a species. There are two ways to obtain such authorization (in the form of an incidental take permit) – an interagency consultation under Section 7 when a federal permit is required or approval of a Habitat Conservation Plan under Section 10 (where there is no federal permit). Without the Corps, there is no federal agency to undertake the required consultation. Recognizing this, FDEP requested a one-time review of the impact that permit assumption will have on the current list of 133 endangered species. This "programmatic consultation" resulted in a Biological Opinion to be later used to establish additional procedural requirements and permitting conditions or measures to ensure that future permits do not jeopardize endangered species. In addition, the MOA with the federal services establishes a technical assistance process with FDEP whereby the state will seek technical assistance from the USFWS to help permittees avoid impacts on endangered species. This is mostly favorable to single-family residence, boardwalk over wetlands or small commercial sites that will not result in harm to species. However, FDEP estimates that roughly 10 percent of permits would result in "take" of a species. The Biological Opinion does not authorize take from specific projects. However, it is intended to shield projects that implement the measures requested by the federal services through the technical assistance process with FDEP.

FDEP's permitting actions are subject to review. Because the issuance of the 404 permit is a state action, parties may initiate an administrative proceeding by written petition to FDEP. If the petition identifies disputed issues of material facts, the petition will be referred to the Florida Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge (ALJ) for a de novo hearing. The DOAH hearing includes live witnesses and discovery (with the burden of proof on the petitioner). Upon completing the hearing, the ALJ submits to FDEP a recommended order consisting of findings of fact, conclusions of law and a recommended disposition. FDEP then issues a final order. Prior to the assumption, challenges to a 404 permit would have to be brought in federal court. Such federal challenges are record review cases based on the deferential standards of the Administrative Procedure Act. One possible result of the assumption is that there will be more challenges as they move to the state process. However, one major benefit is that assumption by the state will eliminate challenges under the National Environmental Policy Act (NEPA).

Conclusion

Florida has long sought the assumption of the 404 process. The assumption of federal wetlands permitting by the FDEP has the potential to expedite permit issuance and reduce consulting costs. However, there will likely be growing pains for all as the agency absorbs the large number of permit applications and deals with the new requirements. Moreover, there is little question that the assumption process will be challenged.

Notes

¹ 85 Fed. Reg. 83553.

² See 33 U.S.C. § 1311(a); 1344(f).

³ See 33 U.S.C. § 1344(g); 40 C.F.R. Part 233.

⁴ Fla. Stat. Ch. 373.4146(2).

⁵ Chapter 62-331, F.A.C.

⁶ 40 C.F.R. § 233.16

⁷ FDEP, 404 Jurisdiction Determination Mapping Tool

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