What may turn out to be a critically important reaffirmation of state authority (or may be referred to as “devolution”), today the U.S. Environmental Protection Agency (EPA) announced that the State of Florida is the first state in more than 25 years to apply for and receive approval to implement a Clean Water Act (CWA) Section 404 program, joining Michigan and New Jersey as the only states in the country with such authority. Today’s action formally transfers permitting authority under CWA Section 404 from the U.S. Army Corps of Engineers (Corps) to the State of Florida for a broad range of water resources within the State. This action allows the State to more effectively and efficiently evaluate and issue permits under the CWA to support the health of Florida’s waters, residents, and economy. EPA Administrator Andrew Wheeler noted that: “A considerable amount of effort has gone into Florida’s assumption of the Clean Water Act 404 program.” Moreover, he pointed out: “Federal authorities don’t delegate this type of permit often, but Florida has, beyond question one of the greatest environmental records of any state, . . . (and) . . . has shown it can meet the strict national standards EPA sets to protect human health and the environment.”
If this becomes a trend, CIRT member firms may find their state clients/relationships will replace formally federal controlled project permitting handled by the U.S. Army Corps of Engineers.
Section 404 of the CWA requires a permit before dredged or fill material may be discharged into waters of the United States. Section 404(g) of the CWA gives states and tribes the option of assuming, or taking over, the permitting responsibility and administration of the Section 404 permit program for certain waters. Section 404 permits for those assumed waters would be issued by the state or tribe instead of the Corps. The CWA provides that the Corps retains permitting authority in certain tidal waters and other specified waters that are currently used or may be used in the future to transport interstate or foreign commerce. State and tribal Section 404 programs must be at least as stringent as federal permitting.
State and tribal regulators are generally more familiar with local aquatic resources, issues, and needs. An efficient state- or tribal-run program can help reduce delays and save money for permit applicants. States and tribes can also integrate dredged and fill permitting with traditional water quality programs, such as monitoring and water quality standards, or state/tribal land use planning requirements. Under an assumed program, Section 404 permit applicants may need only a single state or tribal permit for dredged or fill material discharges. Since more than a dozen states and tribes currently administer dredged and fill programs separate from the federal program, assuming the Section 404 program allows states and tribes to streamline the review process and reduce unnecessary paperwork and duplication. It may also reduce the potential for conflict between federal and state or tribal decisions or permitting conditions. More information: https://www.epa.gov/cwa404g/basic-information-about-assumption-under-cwa-section-404