UPDATE ON FLORIDA'S ASSUMPTION OF THE FEDERAL 404 PERMITTING PROGRAM

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A federal court order was issued just before midnight on Feb. 15, 2024, divesting, at least for now, DEP of its authority to issue State 404 Program permits in Florida. Consequently, all activity under the State 404 Program is paused until further order of the court. DEP is currently evaluating any and all legal options in light of the court’s order. As an initial step to limit this disruption, DEP filed a motion seeking a partial stay so Florida may continue to process the applications that would not affect any listed species.  Unless stayed, the court’s ruling will disrupt pending permit applications, including those associated with the restoration of America’s Everglades and critical infrastructure projects for a more resilient Florida.

- Updated Feb. 27, 2024

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The following class description will remain in place until it is ultimately decided  whether the State has authority to administer the 404 permitting program on any level.  There will be discussion in each class on the status of the program as it evolves.

Federal wetland boundaries are delineated in accordance with the Clean Water Act and other federal statutes and with the U.S. Army Corps of Engineers 1987 Wetland Delineation Manual and Regional Supplements to the manual.  Some wetland boundaries in the State of Florida and its political subdivisions are delineated under the provisions of chapter 62-340, F.A.C., as ratified by the Florida Legislature in sections 373.421 and .4211, F.S.  In addition, there are other interagency regulatory processes to consider.

In 2018,  Florida's legislature passed a bill that gave the Florida Department of Environmental Protection (FDEP) the authority to begin the public rulemaking process to better protect the state's wetlands and surface waters by assuming the federal dredge and fill permitting program under section 404 of the federal Clean Water Act within certain waters. The rulemaking process was completed on July 21, 2020. Through this process, Chapter 62-331, Florida Administrative Code (F.A.C.), “State 404 Program,” was created to bring in the requirements of federal law not already addressed by the existing Environmental Resource Permitting (ERP) program. Minor changes were also made to the ERP rules in Chapter 62-330, F.A.C., to facilitate assumption. Florida submitted its assumption package to the EPA on Aug. 20, 2020.

​The state assumption of the 404 program was intended to provide a streamlined permitting procedure within which both federal and state requirements are addressed by state permits. This provides greater certainty to the regulated community, conserves resources of both the applicant and regulator, and affords the state greater control over its natural resources while complying with federal law.

The State 404 Program is a separate program from the existing ERP program, and projects within state-assumed waters require both an ERP and a State 404 Program authorization. Efficiency comes from the fact that approximately 85% of review requirements overlap between programs, eliminating duplicative review.

​The State 404 Program is responsible for overseeing permitting for any project proposing dredge or fill activities within state assumed waters. Such projects include, but are not limited to: single family residences; commercial developments; utility projects; environmental restoration and enhancement; linear transportation projects; governmental development; certain agricultural and silvicultural activities; and in-water work within assumed fresh water bodies such as boat ramps, living shorelines and other shoreline stabilization.​

The US Army Corps of Engineers will retain jurisdiction over those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to their mean high water mark, including wetlands adjacent thereto. The Corps will retain responsibility for permitting for the discharge of dredged or fill material in those waters, as well as all waters subject to the ebb and flow of the tide shoreward to their mean high water mark, including wetlands adjacent thereto landward to the administrative boundary. The administrative boundary demarcating the adjacent wetlands over which jurisdiction is retained by the Corps is a 300-foot guideline established from the ordinary high water mark or mean high tide line of the retained water. In the case of a project that involves discharges of dredged or fill material both waterward and landward of the 300-foot guideline, the Corps will retain jurisdiction to the landward boundary of the project for the purposes of that project only.

​The USACE also retains permitting authority for projects within “Indian country” as that term is defined at 18 U.S.C. § 1151.​

EPA approved Florida’s program on Dec. 17, 2020. The State 404 Program became effective on Dec. 22, 2020, the date EPA published approval in the Federal Register.

This 4-day course is designed to enable Florida wetland delineators to determine the correct approach to delineating wetland areas in the state. We will address the current interagency agreement, outlining the rules and requirements that must be met.

​​A Certificate of Training showing completion of 38 Professional Development Hours is awarded for successful completion of this course.  Successful completion is determined by attendance and participation in all lecture, field, and laboratory sessions.