Florida 404 Assumption: Policy & Practice

In the 15th episode of the Ecobot Webinar Series, we heard from experts about what preceded Florida’s 404 assumption, and how the permitting process plays out now.

Topics

• Florida Assumption of the Clean Water Act 404 Program

Moderator

Jeremy Schewe , PWS, Chief Scientific Officer, Ecobot?

Presenters & Panelists

Susan Roeder Martin, JD, Partner, Nason Yeager

Heather Mason , PWS, Environmental Administer, Florida Department of Environmental Protection

Kerri MacNutt , Senior Manager, Environmental Consulting & Technology, Inc.

Permitting Requirements in Florida Before 2021

Susan Roeder Martin previously worked with the South Florida Water Management District, one of the five water management districts in Florida. These districts worked with the Department of Environmental Protections (DEP) and had input on the Section 404 process as it was assumed by the State. Now, as an attorney at Nason Yeager, she represents clients seeking 404 permits from the DEP.

Split of Permitting Review

Prior to 2021, Martin explains, a permit was required from the U.S. Army Corps of Engineers (USACE) under Section 404 of the Clean Water Act (CWA) for discharges of dredge and fill materials into a water of the United States (WOTUS). Florida also required a second permit from the State called an Environmental Resource Permit (ERP). ERPs can be granted by the Florida DEP or by one of the state’s five Water Management Districts (WMD), an authority granted to the state by Chapter 373 of the Florida statutes.?

Rather than have applicants go through both the DEP or a water district for a permit, the two organizations entered into an operating agreement that the WMDs process most ERP permits, but DEP maintains a supervisory authority over the WMDs and the districts rely heavily on DEP expertise.?

Florida’s Comprehensive Program to Protect Wetlands and Other Surface Waters

Florida has its own set of regulations in Chapter 373 Florida Statute, plus ERP rules, many of which overlap with those of the 404 program. The ERP rules protect three broad environmental categories:

• Environmental
• Wetlands?
• Other surface waters
• Wetland-dependent species
• Water quality
• Water quantity and flooding

Today’s discussion focuses on the first category.

“Surface waters” are defined as any water on the surface of the earth, whether contained in bounds created naturally or artificially or diffused. Water from natural springs shall be classified as surface water when it exits from the spring onto the earth’s surface. Permits are required for “works,” which are defined broadly as all structures, ditches, canals, culverts, and any construction that connects to, draws water from, drains water into, or is placed in or across waters in the state, unless the project is otherwise exempt. “So, just about any activity affecting surface waters is covered under the ERP program,” says Martin.

A 404 permit is required pursuant to the CWA for any activity that will discharge dredged or fill material into a WOTUS. Under the Navigable Waters Protection Rule, WOTUS includes:

• Territorial seas and traditional navigable waters
• Perennial and intermittent tributaries to those waters
• Certain lakes, ponds, & impoundments
• Adjacent wetlands, i.e. directly abutting or having regular surface water communication with jurisdictional waters

Defined non-jurisdictional waters are set forth in 12 exclusion categories, such as features that contain water only from rainfall, groundwater, many ditches, prior converted cropland, and waste treatment systems.?

The definition of WOTUS and the navigable Waters Protection Rule have changed many times under different presidential administrations, and may be set to change again under Biden’s. For background, see our 12th webinar episode, Pitfalls of Ping Pong WOTUS Policy .

404 Assumption

The DEP in Florida estimated that the USACE permit and State ERP overlapped 85% of the time, meaning that most applicants processed two sets of permits for the same activity, incurring additional costs and delays. This overlap prompted the state, through DEP, to seek assumption. On December 2020, the Environmental Protection Agency approved the assumption by DEP. DEP enacted a new set of State rules designed for 404 state permitting, which can be found in Chapter 62-331 of the Florida Administrative Code. DEP also adopted a State 404 Applicant’s Handbook, which sets forth the roadmap for securing a permit, into the State administrative code. The Handbook must legally be followed by all applicants and the State agencies. DEP also entered into a memorandum of agreement with USACE and EPA, which set forth requirements for assumption and agreements with the wildlife agencies.

Challenges of the Assumption

In spite of the assumption, challenges still exist. For example, two sets of permits–an ERP and state 404– are still required for most activities. Additionally, there is a significant backlog of applications at the DEP, as some 591 pending applications where transferred to the DEP when the court reassigned the program. Review for these pending projects was restarted no matter how far along USACE was in its review process, since State rules differ.

Delegation of Permits

When DEP wrote the new state rule chapter, they placed provisions allowing for delegation by the EPA to the WMDs, which would allow permits to be issued by one state permitting agency. This additional layer of delegation has yet to go into effect.

USACE has retained authority over permits related to certain waters and activities, including:

• Traditional navigable waters
• Wetlands adjacent to navigable waters within a 300’ administrative boundary
• Mitigation Bank and In Lieu Fee instruments
• Projects that are in or will impact “Indian County,” Georgia, or Alabama waters?
• Projects requiring a Rivers and Harbors Act permit
• Projects that will discharge to a retained water

The administrative boundary is a 300’ guideline established from the ordinary high watermark or mean high tide line of the retained water. The administrative boundary marks the adjacent wetlands over which USACE retains jurisdiction. IF a project involves discharges of dredged or fill material both waterward and landward of the 300-foot guideline, USACE will retain jurisdiction to the landward boundary of the project.?

To determine if USACE has jurisdiction over a project, Florida applicants can consult the following resources:

• Appendix A of the 404 Program Applicant’s Handbook lists waters retained by USACE
• DEP includes three diagrams in Section 4.1 of the Applicant’s Handbook
• USACE has provided DEP with GIS layers depicting waters that are retained by them

Current Processes

• Florida applicants now apply concurrently for an ERP and 404 permit, except where 404 activities are proposed? to occur in a later project phase that will occur outside the maximum permit duration allowed under federal law.?In that case, the applicant can apply for the 404 permit later.
• DEP has issued a joint applicant form for applying for an ERP, subject to review by both the WMD and DEP. If the applicant notes that there will be wetlands or other surface waters involved, a 404 permit is presumed to be necessary. If the application was submitted to a WMD, the WMD will send the permit to DEP for 404 review while they keep the portion of it that pertains to ERP review. The burden of proof is on the applicant to demonstrate whether or not a 404 review is necessary. If the applicant incorrectly suggests that a 404 review is not necessary, they could be subject to enforcement action later on.
• Activities requiring both permits cannot commence without both authorizations.
• If any part of a project requires a 404, a No Permit Required verification cannot be issued, and the applicant must provide DEP with information to demonstrate that on-site wetlands are not WOTUS and should use the “Information Required for a WOTUS Determination in State-assumed Waters” DEP form.

General Permits (GPs), Regional General Permits (RGPs), and Individual Permits

State 404 general permits were modeled after the 2017 USACE nationwide permits (NWPs), rather than the 2021 modifications. These are for projects with minimal adverse environmental impacts. Notice of GPs are sent to the State Wildlife Agency, the U.S. Fish & Wildlife Service (USFWS), and the Tribal Historic Office. Any of these agencies can request that the project be elevated to an individual permit. Seven regional GPs were also assumed by DEP.

Individual permits require public notice within 10 days of a project’s administrative completion. Notice is provided to adjacent property owners, interested parties, potentially affected states and tribes, and other affected agencies. Notice is posted on DEP’s local district website. There is typically a 30-day public comment period, where anyone can request a public meeting.

EPA Review

EPA will review certain categories of activities, with the review period beginning on the first day of a public notice. EPA also sends notice to USFWS, National Marine Fisheries Service (NMFS), and USACE, and then collects their comments to send to DEP. Within 30 days, EPA will comment, advise that it intends to comment, object, make recommendations, or reserve its rights to object.?

Modification of Existing 404

Under the current Memorandum of Agreement, USACE retains authority to process minor modifications to existing 404 permits. If the modification is not minor, it must be processed by DEP as a new permit. Any new delineations in Florida must be done under Florida; DEP cannot accept federal delineations.? Delineations must follow the Florida methodology found in the Florida Administrative Code. Any modification to a long-term USACE permit is limited to five years.

Mitigation Requirements

Applicants must continue to purchase both state and federal mitigation bank credits. DEP follows the mitigation hierarchy from the federal 404 permit, but this hierarchy can be overridden if there is acceptable mitigation which is environmentally preferable based on a watershed approach.

Project Lasting Over 5 years

Projects taking more than 5 years to complete may need to be divided into 5-year phases to fall under State permits. Applicants must submit information on any “reasonably related” activities using a long-term planning document so the entire project can be reviewed (see 62-331.051(2) & A.H. 5.3.2).

Listed Species Review

There is also opportunity for listed species review. Applicants must provide information regarding listed species that may be affected. DEP then provides the information to the Federal Wildlife Commission (FWC) and USFWS, requesting review and comment. DEP and USFWS developed a technical assistance process through a programmatic biological opinion (State 404 BiOp), and the Florida State and federal agencies collaborate on their review. The Florida Wildlife Commission will consolidate the state and federal review into a comprehensive response to DEP.?