The State of Florida’s Federal 404 of the Clean Water Act Program

The State of Florida’s Federal 404 of the Clean Water Act Program

The State of Florida’s Federal 404 of the Clean Water Act Program plays a vital role in overseeing dredge and fill activities within state waters, encompassing a wide range of projects from residential to environmental restoration endeavors.

On February 15, 2024; a federal court order was issued for the temporary rescinding of the Florida Department of Environmental Protection (FDEP)’s authority to issue Federal Section 404 permits.

The State of Florida 404 Program; was implemented in 2020, which gave FDEP authority to assume the federal dredge and fill permitting program in Florida from the U.S. Army Corps of Engineers (USACOE).

The FDEP assumed responsibility for overseeing permitting for any project proposing dredge or fill activities within state assumed waters. Such projects include, single family residences; commercial developments; utility projects; environmental restoration and enhancement projects; linear transportation projects; governmental development; certain agricultural and silvicultural activities; and in-water work within assumed freshwater bodies such as boat ramps, living shorelines and other shoreline stabilization.

Approximately 85% of review requirements overlapped between State Environmental Resource Permits (ERP) and Federal CWA 404 permits, which eliminated duplicative review and thus, streamlined the process.

However, unexpectedly, on February 15, 2024; a federal court order was issued, stripping FDEP of its authority to issue State 404 permits in Florida. Consequently, all activity under the State 404 Program is paused until further order of the court; thus, disrupting hundreds of permit applications, including those associated with the restoration of the Everglades and critical infrastructure projects.

FDEP is currently pursuing legal options in light of the court’s order. As an initial step to limit this disruption, FDEP filed a motion seeking a partial stay so Florida may continue to process the applications that would not affect any listed species.

On March 21, 2024; the U.S. House of Representatives passed the “Creating Confidence in Clean Water Permitting Act” (H.R. 7023), which includes an amendment by U.S. Representative Aaron Bean (FL-4) that would codify the U.S. EPA’s approval of Florida’s Section 404 Program. This act signifies federal recognition and potential support for the state’s permitting authority.

Therefore, efforts to address this issue are underway, with the FDEP exploring legal options to continue processing certain permit applications.

The evolving landscape of environmental regulations and permitting underscores the need for ongoing collaboration between state and federal entities to ensure effective protection of natural resources while enabling responsible economic growth.

Despite the current disruption, the program remains essential for maintaining environmental integrity and facilitating sustainable development in Florida.