Navigating the Future: The Impact of Recent Court Decisions on Florida’s 404 Wetland Permitting Program


Florida 404 Assumption Clarification:

The recent ruling regarding the Federal FDEP 404 permitting, will affect those that are discharging of dredged or fill material (impacting a wetland) that is connected to another waterbody.

It means that the permittees (developers) that need a Federal 404 Permit; will possibly no longer work with FDEP, and may have to go back to USACOE to get permitted for the Federal 404 permit.

The intended assumption that took place in December 2020; main purpose was to streamline the permitting process.

Only a few states such as Michigan proceeded with the 404 Assumption which was established in 1984.

Therefore, FDEP will no longer issue federal 404 permits. Thus, I assume that USACOE will go back to the pre 2020 rules and continue to be the lead agency in Florida for administering the 404 Permit Program.


Navigating the Future: The Impact of Recent Court Decisions on Florida’s 404 Wetland Permitting Program

In a landmark decision, the U.S. District Court in Washington DC has vacated the Environmental Protection Agency’s (EPA) assumption decision and its approval of Florida’s assumption application for the 404 wetland permitting program. This ruling effectively halts the Florida Department of Environmental Protection’s (FDEP) 404 program, casting uncertainty over the future of wetland permitting in the state.

Background to the 404 Program

Florida’s Legislature passed a bill in 2018 granting the DEP the authority to assume the federal dredge and fill permitting program under section 404 of the Clean Water Act. This was intended to streamline permitting processes, providing greater certainty to the regulated community and affording the state more control over its natural resources while still complying with federal law.

Implications of the Court’s Decision

The recent court decision puts all pending permits on hold, awaiting further action from the judicial system. This move may have significant implications for development and conservation efforts across Florida, affecting a wide range of stakeholders from developers to environmentalists.

The Path Forward

As we await further developments, it’s crucial for stakeholders to stay informed and prepared to adapt to changes in the regulatory landscape. The Mitigation Banking Group, led by CEO Victoria Bruce, remains committed to guiding our clients and partners through these uncertain times, offering expertise and support in navigating environmental permitting challenges.


The vacating of the EPA’s assumption decision marks a pivotal moment for Florida’s environmental permitting process. It underscores the importance of collaborative efforts to ensure the protection of natural resources while supporting sustainable development. Stay tuned to our blog for updates and insights on this evolving situation.