On December 17, 2020, the US EPA approved Florida’s request to assume the permitting authority for the Clean Water Act (CWA) Section 404 from the US Army Corps of Engineers (USACE). USACE will continue to process Section 10 permits (Rivers and Harbors Act—these permits are for projects that may impact navigation). Florida’s 404 Program is a separate program from the existing Environmental Resource Permitting Program (ERP), and projects within state-assumed waters will require both an ERP and a State 404 Program authorization. Efficiency will come from the fact that approximately 85% of review requirements overlap between programs, eliminating duplicative review.
Here are a few changes will impact our clients:
- The ERP application will go back to a joint application (ERP and Section 404) for projects in assumed waters.
- The application will include a statement that our clients must sign to waive the ERP timelines. Florida’s ERP rules include stringent timelines that if the FDEP does not meet, the permit is automatically issued. FDEP cannot default to issuing a federal permit, but the goal for FDEP is to improve processing times.
- FDEP will not determine if waters are Waters of the United States (WOTUS). The program assumes that waters are WOTUS unless presented with an argument that they are not. FDEP will review reasons that waters are not WOTUS and then decide.
The FDEP rule-making information and a mapping tool to review assumed waters is available at: