Developers looking to build in or near wetlands in Florida must navigate a complex permitting process, particularly considering the recent court order affecting the State 404 Program. With the pause in the State 404 Program, developers must revert to the federal permitting process under the Clean Water Act (CWA) Section 404, administered by the U.S. Army Corps of Engineers and overseen by the Environmental Protection Agency (EPA).
As of February 15, 2024, the Florida Department of Environmental Protection (DEP) has temporarily lost its authority to issue State 404 Program permits.
The State 404 Program, effective December 22, 2020, was designed to streamline the permitting process by allowing the state to evaluate and issue permits for a broad range of water resources within the state to protect Florida’s waters, residents, and economy more efficiently. The EPA had approved Florida’s assumption of the CWA Section 404 program, making it one of the only three states with Michigan and New Jersey to have such authority.
A recent court ruling shifts the administration of the 404-permitting process in Florida back to the U.S. Army Corps of Engineers and EPA, affecting developers, government projects, and any activities requiring dredge or fill permits in state-assumed waters. Specifically, the decision was part of a larger judicial examination of how agency deference is applied and its impacts on individual rights versus governmental interests.
Before starting any project, it is essential to determine if the land in question falls under the authority of the CWA Section 404. This involves identifying if the project area includes waters of the United States, including wetlands. The U.S. Army Corps of Engineers conducts jurisdictional determinations to make this assessment.
It is advisable to schedule a pre-application meeting with the U.S. Army Corps of Engineers. During this meeting, developers can present their project plans and receive guidance on the permitting process,
Depending on the project’s impact on the wetlands, developers may need to apply for either a Nationwide Permit (for minimal impacts) or an Individual Permit (for significant impacts). The application process requires detailed project descriptions, impact assessments, and mitigation plans.
A general Nationwide Permit may be suitable for activities with minimal adverse effects, streamlining the review process. An individual permit is required for potentially significant impacts, involving a more detailed review process, including public notice and opportunity for hearing.
General permits, like Nationwide Permits, are designed for activities with minimal environmental impacts and offer a streamlined review process. They apply broadly to numerous similar projects, reducing the need for detailed scrutiny of each case.
Individual permits, on the other hand, are required for projects that might have significant environmental impacts. This process is more rigorous, involving a detailed review, public notices, and opportunities for hearings to assess the potential environmental consequences more closely.
Developers must demonstrate efforts to avoid impacts on wetlands, minimize unavoidable impacts, and provide compensation for any remaining unavoidable impacts through restoration, establishment, enhancement, or preservation of aquatic resources.
Certain projects may require consultation with other federal agencies, such as the U.S. Fish and Wildlife Service or the National Marine Fisheries Service. Additionally, the public and interested stakeholders can comment on Individual Permit applications.
Developers must ensure compliance with other relevant environmental regulations, such as the Endangered Species Act and the National Historic Preservation Act, as part of the permitting process.
Given the current uncertainty and potential for further legal developments regarding Florida’s State 404 Program, developers should closely monitor any updates from the Florida Department of Environmental Protection and the U.S. Army Corps of Engineers. Consulting with legal and environmental professionals familiar with Florida’s federal and state wetland regulations is highly recommended to navigate this complex regulatory landscape effectively.
Developers in Florida working with their consultants on wetlands issues need to navigate a complex regulatory landscape. Determining if a project requires a Nationwide Permit for minimal impacts or an Individual Permit for significant impacts is crucial. Developers and their consultants should engage in pre-application meetings with the U.S. Army Corps of Engineers, understand the necessity of demonstrating efforts to avoid, minimize, and compensate for wetland impacts, and ensure compliance with other relevant regulations like the Endangered Species Act. Consulting with environmental legal professionals is highly recommended to navigate these regulations effectively.
Additional Environmental Permitting Resources & Protections in the U.S.
