Section 404 of the Clean Water Act (CWA): Proposed Changes to Florida Wetlands

Section 404 of the Clean Water Act (CWA) regulates the discharge of dredged or fill material into waters of the United States, including wetlands. Section 404 requires a permit before dredged or fill material may be discharged into waters of the United States.

Senate Bill 1402, which was proposed on January 9, 2018, would authorize the Florida Department of Environmental Protection (FDEP) to assume administration of the federal Clean Water Act, section 404 dredge and fill permitting program from the US Army Corps of Engineers (USACE).

If the bill is passed, FDEP would issue federal 404 permits instead of USACE, thus FDEP will be the lead agency in Florida for administering the State 404 Permit Program.

The strategies and priorities for permit review, compliance monitoring and enforcement of permits, and against persons conducting unauthorized discharges of dredged or fill material into waters of the United States over which FDEP has assumed jurisdiction under the State 404 Permit Program, shall be established by FDEP and shall be reviewed annually by EPA.

FDEP may delegate the State 404 Permit Program to State governmental agencies in Florida, but will maintain oversight and will retain the ability to revise or rescind permits issued by the delegated entities.

FDEP is currently in the process of negotiating Memorandums of Agreements with the relevant federal agencies that would allow assumption if the legislation passes. Ultimately, such Memorandums of Agreements would be necessary between FDEP and the USACE, the Environmental Protection Agency (EPA), and the U.S. Fish & Wildlife Service (USFWS).

The devil will be in the details of the Memorandums of Agreements.

The House bill had its first hearing on January 17, 2018. The Senate bill has yet to be scheduled for a hearing.


Download Senate Bill 1402