Hopping Green & Sams

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Tallahassee, Florida 32314

/ Water Resources

EPA Considers Florida’s Assumption of Federal Wetland Permitting

Posted Monday, November 23rd, 2020

In mid-December, the Environmental Protection Agency (“EPA”) will finally decide whether Florida may assume control over the U.S. Army Corps of Engineers dredge-and-fill permitting program. This would significantly expedite the permitting process by removing duplicative regulations while maintaining all federal environmental protections. If the EPA approves Florida’s assumption plan, private developments, infrastructure projects, and even environmental restoration projects, would benefit from a more transparent and efficient permitting process.

            Generally, § 404 of the Clean Water Act requires a permit issued by the Corps for any activity resulting in impact to jurisdictional wetlands. Yet if a project will impact both state and federally defined wetlands, an applicant must obtain both a federal dredge-and-fill permit and a state environmental resource permit. In this common situation, applicants face significant delays in obtaining two nearly identical permits for impacts to the same area. Under § 404(g), any state may assume responsibility for most of the Corps permitting program by submitting a proposal to the EPA. Upon review, the EPA will determine if the state has sufficient resources to implement and enforce the program under their exclusive authority. Thus far, only New Jersey and Michigan have assumed state authority of the federal permitting program.

            In 2018, Florida began the process of becoming the third state to assume the federal § 404 program. Under the newly created Florida Statute, § 373.4146, the Florida Department of Environmental Protection (“FDEP”) was granted explicit authority to assume state authority over the federal program. Notably, this law cannot reduce environmental protections offered by the federal program. The main goal is to allow the FDEP to administer the requirements of the federal program using state resources. Since 20 percent of the nation’s wetlands are in Florida, the FDEP has the necessary resources and expertise to regulate wetlands with greater certainty and less cumbersome delays. Yet adoption of F.S. § 373.4146 was merely the first step in the intricate process of assuming control over the federal program. FDEP engaged in a two-year rulemaking process to establish a state program.  Those rules were publicly noticed in spring 2020, and no legal challenges were filed against their adoption.

            This December, the EPA will finally issue a determination on whether Florida’s proposed permitting program is sufficient. Since 2018, Florida has taken a variety of required steps to achieve the intended benefits of reducing government inefficiency and duplicative regulation. In short, Florida has submitted a complete program description, the governor’s approval, an attorney generals’ statement, memorandums of understand with both the EPA and the Corps, as well as copies of all applicable Florida statutes and regulations. In essence, Florida is reaching the end of a long and arduous application process that has left earlier efforts at assumption largely abandoned. Recently, HGS attorney Felicia Kitzmiller edited an ELULS comprehensive summary of the process submitted to the Florida Bar Journal.

EPA Administrator Andrew Wheeler recently said that applying for state assumption is a difficult process. Although the agency has helped with Florida’s application, he stated he could not “prejudge” the result. The EPA held a final virtual meeting on October 27 and accepted public comment through November 2. Florida has taken all the necessary steps to ensure compliance and understanding with the EPA and Corps. The end of 2020 could bring with it good news for public and private applicants needing to navigate the § 404 wetland permitting process.

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