State 404 Program UpdatesA federal court order was issued just before midnight on Feb. 15, 2024, divesting 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 a court. DEP is currently pursuing any and all legal options and on April 15, 2024, the state of Florida formally filed an appeal with the U.S. Court of Appeals for the D.C. Circuit. DEP has received significant support in light of the court’s order from Congressional members, local governments and industry. U.S. Senators Marco Rubio (R-FL) and Rick Scott (R-FL) and U.S. Representative Aaron Bean (FL-04) introduced legislation (S. 4162/H.R. 8101) to codify the State 404 Programs administered by Florida, Michigan, and New Jersey and clarify the law so that other states may successfully obtain assumption. Many state agencies, industry partners and stakeholders have also filed amicus briefs in support of Florida's 404 Program. DEP looks forward to making its case on appeal to defend the U.S. EPA's approval and overturn the lower court’s legal errors. Updated July 16, 2024 |
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Background
In 2018, Florida's Legislature passed a bill that gave DEP 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, “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.
State assumption of the 404 program provides 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.
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.
Florida’s assumption package submitted to EPA on Aug. 20, 2020, and associated materials (including the U.S. Fish and Wildlife Service Biological Opinion) are available for public review.
The 2022-2023 Final State 404 Program Annual Report is available for public review.
Chapter 62-331, F.A.C., and the State 404 Program Applicant's Handbook can be found on the Rules page, and the Memoranda of Agreement regarding the State 404 Program can be found on the Operating Agreements page.
Contact Us
If you have questions about a specific project or would like to schedule a pre-application meeting, please contact your local DEP district office.
If you have general questions about the State 404 Program, please email State_404@FloridaDEP.gov. Please do not send application materials to this email address.
