On December 17, 2020, the U.S. Environmental Protection Agency (EPA) granted the state of Florida the authority to regulate discharges of dredged or fill material into waters regulated under Section 404 of the Clean Water Act (CWA). The Florida Department of Environmental Protection (FLDEP) assumed responsibility for operating the Section 404 Program on December 22, 2020. Typically, such permits are issued nationally by the U.S. Army Corps of Engineers (Corps).

Generally, the CWA prohibits discharging pollutants into Waters of the United States (or WOTUS). However, under Section 404 of the CWA, the Corps may issue a permit to allow the discharge of dredged or fill material into WOTUS. Florida, and a growing number of states, can now issue these permits at the state level. Specifically, New Jersey and Michigan have also been granted this authority. The additional delegation of this authority to Florida may serve to influence whether other states choose to seek this authority from the Corps. Some that are considering seeking this authority include Oregon and Minnesota.

Beginning on December 22, 2020, all permit applications that are pending before the Corps will be transferred to the FLDEP for further processing. However, not all permit issuing authority for Florida sites will be transferred to the FLDEP. The Corps will still issue permits in ‘retained water’, which includes navigable waters such as rivers, coastal waters, and some wetlands adjacent to such waters. Additionally, “Indian country” permits, as defined by Section 1151 of U.S.C. 18 will be retained by the Corps.

In a December 17, 2020 Press Release, EPA indicated that permitting the state to issue Section 404 permits should allow for their more effective and efficient evaluation and support the health of Florida’s residents and waters. To view a copy of the Federal Register containing this announcement, go HERE.