May 05, 2021

Implementing section 404 of the Clean Water Act: How Florida is getting it done

John J. Truitt

1,354 days. That’s how long it took Florida to assume section 404 of the Clean Water Act (section 404) covering the discharge of dredged or fill material into waters of the United States (WOTUS). Florida is only the third state, and the first since 1993, to assume section 404. In Florida, our wetlands are integral to our unique ecosystems, and their importance has been recognized at the state level for some time. For decades, wetland experts at the Florida Department of Environmental Protection (DEP) and the Water Management Districts (WMD) implemented the state’s wetland permitting scheme, environmental resource permits (ERP), under Chapter 373, Florida Statutes. Using that expertise, in 2017, Florida elected to explore assuming federal wetland permitting under section 404 and achieved that goal on December 18, 2020.

Preparation for assumption

Although there are many similarities between Florida’s ERP and section 404, there are several federal requirements that are not contained in our ERP program for which we had to account, including the Endangered Species Act (ESA) and the National Historic Preservation Act (NHPA). We chose to address the ESA and NHPA through additional memoranda of agreement with our federal partners. These memoranda will help ensure that species protection and tribal/historical resource consultation remained after assumption, and we brought on staff that specialize in species and tribal/historical resources.

Under section 404, a state assumes all waters that are not in interstate commerce and are not tidally influenced. Given Florida’s unique geography, determining the assumed and retained waters was a multiyear mapping effort between DEP and the U.S. Army Corps of Engineers (Army Corps). Once the waters list was finalized, our team created a GIS webpage to show retained and assumed waters. We also developed specialized wetland delineation and WOTUS identification training modules for DEP and WMD delineators to ensure consistency in the field.

Transition

When a state assumes section 404, it is a clean break from the Army Corps, meaning all existing applications in assumed waters are immediately transferred from the Army Corps to the state—no grace period allowed. Through ongoing dialogue with the Army Corps, we expected the transfer of approximately 200 applications, but we received 589. The applications covered all types of projects and were at varying stages of completeness. Our approved program requires us to perform all required noticing, such as completeness and draft permit comment periods, regardless of whether it had been done by the Army Corps previously. Our priority was, and remains, to process those applications that were closest to completion first to ensure those waiting the longest were served first.

Implementation

In addition to the 589 applications received from the Army Corps, we are currently receiving an average of 64 section 404 applications per week. Even during the pandemic, we saw a 50 percent increase in state ERP permits in some districts over prior years. DEP currently has 239 employees working on section 404 permitting, and we plan on reallocating additional internal resources given the high demand.

Processing a section 404 permit is rather straightforward. Within five days of receipt of an application, DEP notifies its federal and state partners, including the U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, and the State Historic Preservation Officer, pursuant to our operating agreements. This gives our federal and state partners a chance to provide comments within their purview of expertise. We then review the application for completeness and send any requests for additional information. Once an application is complete, we provide a public notice of completeness and provide a public comment period on the application, and all comments must be addressed. If we determine the permitting criteria are met, the next step is the drafting of the permit, which then is publicly noticed, using DEP’s routine permit processing procedures, providing another opportunity for input. Only then can we issue a final permit. For those seeking a general permit, the process is faster as there is no public comment period.

Our DEP team is dedicated to working through the transferred applications as efficiently as possible, and we continually strive to create additional efficiencies in the program through coordination with our federal and state partners. Assumption of section 404 was a monumental undertaking with plenty of unanticipated bumps along the way; however, the state of Florida, rather than the federal government, now controls the protection of some of its most precious and unique wetland and aquatic resources, exactly as intended in the Clean Water Act.

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John J. Truitt

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John J. Truitt is the deputy secretary for Regulatory Programs within the Florida Department of Environmental Protection. Previously, he served as the department’s chief advisor for Environmental and Regulatory Policy.