As we have recently reported, federal regulation of wetlands under the Clean Water Act ("CWA") is
uncertain and quickly evolving. Earlier this year, the U.S. Supreme Court
issued a ruling that would keep the U.S. Environmental Protection Agency's ("EPA's") 2015 rule defining waters of the United States ("WOTUS") on the books. Then, the EPA responded by
finalizing a different rule that delays the 2015 rule from taking effect for two more years. Now, the Florida Legislature has passed a bill giving the Florida Department of Environmental Protection ("DEP") authority to assume the federal permitting program for dredging and filling wetlands under Section 404 of the CWA.
Section 404 requires a permit before dredged or fill material may be discharged into WOTUS, unless the activity is exempt from 404 regulation. The U.S. Army Corps of Engineers ("Corps") administers the program with EPA oversight. Florida administers a parallel state-permitting program for dredging and filling in Florida wetlands and other surface waters. Thus, discharging dredged or fill material in WOTUS in Florida often requires permits from the Corps and DEP for the same activity.
However, states can assume administration of the Corps' federal permitting program themselves, and the Florida Legislature is aiming to do just that. This year, the House and Senate have passed
House Bill 7043, which gives DEP authority to administer the federal Section 404 permit program for dredging and filling federal wetlands. If Governor Scott signs the bill into law, Florida law would still require two permits before dredging or filling Florida wetlands when they also qualify as federal wetlands. Under the proposed law, however, Florida permit seekers would no longer have to go to the Corps for the federal permit - DEP would be able to issue the state and federal permits alike.
Under the CWA, a state assuming Section 404's permitting program must set criteria for permitting that are at least as stringent as the federal criteria, and must follow the federal permitting procedures. That means two things: (1) DEP could not issue permits to dredge or fill Section 404 wetlands under a more relaxed or inconsistent definition of WOTUS; and (2) federal permitting would still be subject to the notoriously vague and shifting definition of WOTUS. So far, only Michigan and New Jersey have assumed state control over Section 404's permitting program.
The Association of State Wetland Managers has noted state assumption of the Section 404 permitting program has a variety of benefits for state agencies and permit seekers alike, including:
- Eliminating a high percentage of duplicative state/tribal federal permitting programs;
- Reducing costs for permit applicants;
- More effective resource management due to localized expertise;
- Incorporation of state goals into the overall permit process; and
- Improved consistency and stability in the permitting process.
If Governor Scott signs the bill into law, DEP must still obtain EPA approval before it can administer the Section 404 permit program. DEP must also pass rules sufficient to satisfy the EPA that it will administer the program consistent with federal regulation.
However, DEP's assumption of the Section 404 permitting program is not a complete panacea. First, permit seekers would still need Corps approval whenever they propose to dredge or fill wetlands adjacent to Florida's coastal and tidal waters. Second, state assumption of the program would require additional resources to review, process, and administer the Section 404 permits. However, both the Senate and House Staff Analyses of the bills indicate DEP can absorb the increased permitting authority without an increase in staff or administrative costs.
Our Land Development, Zoning & Environmental team has extensive experience advising clients on permitting wetland impacts. We will continue to monitor the bills' progress through the Florida Legislature and how the bills will impact ongoing, proposed, or future projects in Florida. For more information, please
contact us.
