LEGAL BRIEFS
Streamlined or Fast-Tracked: Florida Angles to Assume Federal Dredge-and-Fill Water Permitting Authority
Kyle Robisch
I
n the next few months, Florida aims to make Clean Water Act (CWA) history, hoping to become just the third state to assume CWA section 404 permitting authority. In early November last year, the U.S. Environmental Protection Agency (EPA) wrapped up the public comment period concerning Florida’s proposal to take over statewide section 404 permitting authority from the U.S. Army Corps of Engineers (the Corps). Florida’s proposal drew thousands of comments, from interested parties across the state, and EPA expects to decide soon. Most expect EPA to grant Florida’s request—before the next presidential inauguration. So what’s the big deal? If you’re building or discharging near (or in) waters or wetlands, chances are you need a permit or two. Under the current regime, the Florida Department of Environmental Protection (FDEP) and the state water management districts regulate most discharges through the Environmental Resource Program (ERP) permitting program. Federal authorities—specifically, the Corps— often regulate those same discharges and projects, in parallel, through the section 404 program. One project, in other words, often requires permittees to jump through overlapping state and federal permitting hoops. The CWA allows state agencies to “assume” federal section 404 permitting authority. Florida recently submitted an application to do just that, seeking to join Michigan and New Jersey as the only states currently authorized to implement the section 404 program (though other states are pursuing section 404 assumption). As part of the application process, FDEP issued a suite of new regulations, negotiated a “memorandum
22 January 2021 • Florida Water Resources Journal
