Florida Receives EPA Approval to Assume Clean Water Act Section 404 Program

Dec. 31, 2020

Florida’s 404 program aims to increase regulatory efficiency and reduce duplication between the state’s existing Environmental Resource Permitting Program (ERP) and the federal 404 program. 

For the first time in over 25 years, the U.S. EPA approved the formal transfer of section 404 permitting authority to a third state, Florida.  

The only two states that have received approval to administer the Clean Water Act (CWA) section 404 program are Michigan and New Jersey, reported the National Law Review. No state has received approval since 1994.  

Florida’s 404 program aims to increase regulatory efficiency and reduce duplication between the state’s existing Environmental Resource Permitting Program (ERP) and the federal 404 program.  

Once EPA’s approval is published in the Federal Register, the Florida Department of Environmental Protection (FDEP) will assume 404 permitting authority from the U.S. Army Corps of Engineers in certain waters. 

“A considerable amount of effort has gone into Florida’s assumption of the Clean Water Act 404 program,” said EPA Administrator Andrew Wheeler. “Federal authorities don’t delegate this type of permit often, but Florida has, beyond question one of the greatest environmental records of any state, and I couldn’t be happier that Florida has shown it can meet the strict national standards EPA sets to protect human health and the environment.”

CWA section 404 authorizes the Corps to issue permits for the discharge of dredged or fill material into WOTUS, according to the EPA. These permits are generally issued for discharges of fill material associated with infrastructure projects, wetland restoration and enhancement projects, residential and commercial building, mining, renewable energy projects, and other environmental activities.  

Florida submitted an assumption package to EPA on Aug. 20, 2020, seeking approval of a 404 permitting program, reported the National Law Review. 

Section 404(g) of the CWA gives states and tribes the option of assuming, or taking over, the permitting responsibility and administration of the Section 404 permit program for certain waters. 

Florida’s 404 program will become effective when it is published in the Federal Register, which may occur in January 2021, prior to inauguration, reported the National Law Review.

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