The U.S. Environmental Protection Agency recently announced that the State of Florida is the first state in more than 25 years to apply for and receive approval to implement a Clean Water Act Section 404 program, joining Michigan and New Jersey as the only states in the country with such authority.
The action formally transfers permitting authority under CWA Section 404 from the U.S. Army Corps of Engineers to the State of Florida for a broad range of water resources within the state. This action allows the state to more effectively and efficiently evaluate and issue permits under the CWA to support the health of Florida’s waters, residents and economy, according to EPA officials.
“A considerable amount of effort has gone into Florida’s assumption of the Clean Water Act 404 program,” says 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.”
EPA solicited public review and comment on Florida’s proposed program and engaged in stakeholder outreach in a statutorily mandated 120-day decision period. EPA hosted two virtual public hearings during its review. Additionally, as part of the review process set forth by the CWA and its implementing regulations, EPA sought input from other applicable agencies and reviewed Florida’s proposal for consistency with the CWA. EPA determined that Florida has the necessary authority to operate a CWA Section 404 program and FDEP’s program is consistent with and no less stringent than the requirements of the CWA and its implementing regulations.
Part of the review process included the development of a comprehensive Biological Evaluation of more than 200 endangered species throughout Florida. EPA also consulted with FWS under Section 7 of the Endangered Species Act, resulting in the issuance of a Biological Opinion and Incidental Take Statement related to the approval and implementation of Florida’s program. EPA also completed consultation under Section 106 of the National Historic Preservation Act, and entered into a Programmatic Agreement with FDEP, the State Historic Preservation Officer, and the Advisory Council on Historic Preservation.
Background
Section 404 of the CWA requires a permit before dredged or fill material may be discharged into waters of the United States. 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. Section 404 permits for those assumed waters would be issued by the state or tribe instead of the Corps. The CWA provides that the Corps retains permitting authority in certain tidal waters and other specified waters that are currently used or may be used in the future to transport interstate or foreign commerce. State and tribal Section 404 programs must be at least as stringent as federal permitting.
More information: https://www.epa.gov/cwa404g/basic-information-about-assumption-under-cwa-section-404
