by Adam F. Blalock
State assumption of the U.S. Army Corps of Engineers (corps) dredge-and-fill permitting authority has been regarded by some as the “Holy Grail for developers”1 because it would reduce the frustration and delay in obtaining federal Clean Water Act (CWA), §404 dredge-and-fill permits. The 2018 passage of H.B. 7043 places the “Holy Grail” within reach. Private developments, infrastructure projects, and even environmental restoration projects, would benefit from a more efficient, predictable, and transparent state permitting process. The Florida Department of Environmental Protection (FDEP) must take certain actions and overcome hurdles to achieve assumption.
In general, §404 of the CWA,2 along with the underlying federal implementing rules, requires a dredge-and-fill permit from the corps for any activity that results in the discharge of dredged or fill material into the waters of the United States. F.S. Ch. 373, Part IV requires a similar permit for activities that impact wetlands or other surface waters located within the jurisdictional boundaries of the state. When a project impacts state and federal jurisdictional wetlands or other surface waters, the applicant must obtain both a state environmental resource permit (ERP) and a corps dredge-and-fill permit (404 permit). This results in an applicant having to obtain two nearly identical permits for impacts to the same areas of wetlands and surface waters. Often, the applicant will experience significant delays in receiving the 404 permit from the corps, compared to the time it takes FDEP to issue the state ERP.3
In order to implement the CWA declaration that “it is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of [s]tates to prevent, reduce, and eliminate pollution,” Congress included the state assumption provision in §404(g) of the CWA.4 Under §404(g), any state looking to administer its own individual and general permit program for the discharge of dredged or fill material into the waters of the U.S.5 can submit to the Environmental Protection Agency (EPA) a description of the permitting program it proposes to establish and administer under state law. If EPA determines that a state has a sufficient state program to implement and enforce the federal 404 permitting program, then the program will be approved and the state will have exclusive authority to issue delegated federal dredge-and-fill permits.
House Bill 7043
H.B. 7043 creates F.S. §373.4146, granting FDEP the explicit authority to assume the federal 404 permitting program and to adopt, by rule, any federal criteria or regulations necessary to obtain assumption. The new law does not — and under federal law cannot — reduce environmental protections offered by federal law. Instead, the legislation provides the authority and a process for FDEP to “step into the shoes” of the corps and apply federal law in the issuance of 404 permits. For example, federal law requires that under a state-assumed program, states must enforce the criteria established in the CWA, §404(b)(1) guidelines that are more explicitly provided for in 40 C.F.R. Part 230. Additionally, H.B. 7043 also exempts FDEP from the default permit issuance provisions established in F.S. §§120.60 and 373.4141, which are prohibited under the CWA. Although FDEP now has the requisite authority to seek assumption and adopt the necessary rules to implement a state 404 permitting program, there is a specific process that FDEP must follow before assumption of the 404 permitting program can be granted.
Obtaining State Assumption of the §404 Permitting Program
In order for Florida to obtain assumption of §404 permitting authority from the corps under the CWA and 40 C.F.R. Part 233, the state must first submit to the EPA regional administrator (RA) three copies of the following: 1) a letter from the governor of Florida requesting program approval; 2) a complete program description as set forth in 40 C.F.R. §233.11; 3) an attorney general’s statement as set forth in 40 C.F.R. §233.12; 4) a memorandum of agreement (MOA) with EPA as set forth in 40 C.F.R. §233.13; 5) a MOA with the corps as set forth in 40 C.F.R. §233.14; and 6) copies of all applicable Florida statutes and regulations, including those governing applicable state administrative procedures.6
• Program Description — 40 C.F.R. §233.11 requires states to include the following information in the program description submitted to the RA: 1) a description of the scope and structure of the state’s program; 2) a description of the state’s permitting, administrative, judicial review, and other applicable procedures; 3) a description of the basic organization and structure of the state agency(ies), which will have responsibility for administering the program; 4) a description of the funding and manpower, which will be available for program administration; 5) an estimate of the anticipated workload, e.g., number of discharges; 6) copies of permit application forms, permit forms, and reporting forms; 7) a description of the state’s compliance evaluation and enforcement programs; 8) a description of the waters of the U.S. within a state over which the state assumes jurisdiction under the approved program; 9) a description of the waters of the U.S. within a state over which the secretary retains jurisdiction subsequent to program approval7; 10) a comparison of the state and federal definitions of wetlands; and 11) a description of the specific best management practices proposed to be used to satisfy the exemption provisions of §404(f)(1)(E) of the act for construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment.8
• Attorney General’s Statement or Equivalent — Under 40 C.F.R. §233.12, any state seeking to administer the 404 permitting program must submit a statement from the state attorney general (or the attorney for the state agency having independent legal counsel), that the laws and regulations of the state provide adequate authority to carry out the program and meet the applicable requirements to obtain assumption. This statement must cite the specific statutes and administrative regulations that are lawfully effective at the time the program is approved, along with any judicial decisions that demonstrate adequate authority.
• Memorandum of Agreement with EPA Regional Administrator — Any state that seeks to administer the 404 permitting program must submit a MOA with the RA. The purpose of this MOA is to set out the state and federal responsibilities for program administration and enforcement, and must include at a minimum the following: 1) provisions specifying classes and categories of permit applications for which EPA will waive federal oversight review; 2) provisions specifying the frequency and content of reports, documents, and other information that Florida may be required to submit to EPA in addition to the annual report, as well as a provision establishing the submission date for the annual report; 3) provisions addressing EPA and Florida’s roles and coordination with respect to compliance monitoring and enforcement activities; and 4) provisions addressing modification of the MOA.9
• Memorandum of Agreement with the Secretary of the Army — Before state assumption is approved, Florida must also enter into a MOA with the Secretary of the Army. This MOA must include 1) a description of waters of the U.S. within Florida over which the secretary retains jurisdiction, as identified by the secretary; 2) procedures whereby the secretary will, upon program approval, transfer to Florida pending 404 permit applications for discharges in state regulated waters and other relevant information not already in the possession of the state;10 3) an identification of all general permits issued by the secretary that Florida intends to administer and enforce upon receiving 404 assumption; and 4) a plan for transferring responsibility for these general permits to Florida.11
• State Submission Review Process — Once the RA receives the completed state program submission, the RA must, within 120 days, determine whether the state has the requisite authority to issue permits under the §404 permitting program. If the RA determines that sufficient authority exists, then the RA must approve the program and notify the state and the corps.12 The 120-day time period does not begin until EPA deems an application complete.13 The RA will also provide copies of the program submission to the corps, Fish and Wildlife Service (FWS), and National Marine Fisheries Service (NMFS) for review and to provide comments.
If the RA does not approve the state’s program based on the state not meeting the established requirements, the RA notifies the state of the reasons, and of any revisions or modifications necessary to obtain approval. If Florida chooses to resubmit a program submission after remedying the identified problem areas, the approval procedure and statutory review period begins again.14
When the RA fails to make a decision on assumption prior to the end of the 120-day time period, the assumption by Florida will be deemed approved and the RA must notify the state and secretary.15
Potential Hurdles the State Must Overcome for Assumption To Be a Success
In order for state 404 assumption to achieve the intended benefits of reducing governmental inefficiency and regulatory duplication, Florida must overcome certain hurdles that have plagued past assumption attempts. These issues primarily revolve around the extent of wetlands and surface waters that the corps seeks to retain 404 permitting authority over, and the process by which an applicant under a state-assumed 404 permitting program obtains federal Endangered Species Act (ESA) “take” authorization.
• Extent of Wetlands and Surface Waters Retained by the Corps — The MOA with the corps will establish the extent of waters and adjacent wetlands that the corps retains permitting authority over pursuant to §404(g)(1) of the CWA. The corps has been reluctant in the past to relinquish its §404 permitting authority, but EPA recently accepted recommendations from the National Advisory Council for Environmental Policy and Technology (NACEPT) that are more favorable to the states and may put pressure on the corps to soften its minority position. If the corps insists on retaining 404 permitting authority over expansive areas of surface waters and wetlands, the benefits of Florida 404 assumption will not be realized.
Section 404(g)(1) of the CWA does not allow the corps to relinquish 404 permitting authority 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, or mean higher high water mark on the west coast, including wetlands adjacent thereto.”16
These waters correspond closely with those waters that the corps also has permitting authority over pursuant to §10 of the Rivers and Harbors Act (RHA).17 Section 10 of the RHA prohibits the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the U.S., requires authorization from the corps prior to the construction of any structure in or over any waters of the U.S.; and requires authorization from the corps prior to excavating or filling navigable waters of the U.S. work outside of the limits of the RHA navigable waters may require a §10 permit if the structure or work affects the course, location, condition, or capacity of the water body. “Navigable waters of the United States” for purposes of RHA authority is defined as those waters that are subject to the ebb and flow of the tide shoreward to the mean high-water mark and are used, or have been used in the past, to transport interstate or foreign commerce.18
Under the plain language of §404(g)(1) of the CWA, the corps should only retain 404 dredge-and-fill permitting authority over those §10 waters and their adjacent wetlands, with the exception of those waters identified as §10 waters based solely on historical use. All other waters of the U.S. should be deemed “assumable waters” for purposes of §404 assumption. “Partial” assumption of §404 permitting authority is not allowed. However, there are past and present disputes over the extent of jurisdiction the corps seeks to retain. This issue can be particularly problematic in Florida, where there are extensive rivers, lakes, and tidal waters. If Florida is only able to assume a small area of surface waters and wetlands, then 404 assumption will not significantly improve government efficiency or decrease duplicative federal regulation. One of the primary reasons why only two states (New Jersey and Michigan) have assumed 404 permitting authority is confusion regarding the scope of waters and adjacent wetlands that may be assumed.19
The NACEPT convened an Assumable Waters Subcommittee (subcommittee) at the direction of EPA to clarify which waters a state or tribe assumes permitting responsibility for under an approved §404 program and to provide recommendations on how assumable waters ought to be delineated. In May 2017, the subcommittee published its recommendations in the Final Report of the Assumable Waters Subcommittee (final report).20 All of the subcommittee members, except those members representing the corps, made several recommendations intended to provide clarity and reduce uncertainty regarding which waters are assumable and which waters are to be retained by the corps. Unfortunately, corps’ subcommittee members sought to maintain the status quo.
It is not clear why the corps adopted its own minority recommendations in the final report given that they are inconsistent with the plain language of §404(g)(1) of the CWA and underlying implementing regulations. Specifically, the minority recommendation states that the corps should retain authority over all waters on the §10 lists, and also waters identified as traditional navigable waters (TNWs) under the CWA in accordance with corps CWA regulations at 33 C.F.R. §328.3(a)(1).21 However, both the RHA regulations defining “navigable waters of the United States” and 33 C.F.R §328.3(a)(1) include the phrase “or have been used in the past…to transport interstate or foreign commerce.” This phrase is not included in §404(g)(1), which is specific to 404 assumption. The definition of “state regulated waters” in §404(g) implementing the regulations does not include reference to past or historic uses of waters. Both §404(g) and 40 C.F.R. §232.2 state that waters retained by the corps include only “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.” The plain language of §404(g) and underlying federal regulations support the final report majority’s recommendation that the corps should not retain those §10 waters that are based solely on historic use (e.g., waters capable of carrying canoes for fur-trading in the 18th century). The corps should only seek to retain 404 permitting authority over those waters that 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.
The corps’ minority recommendations also conflict with legislative history and Congress’ intent for including the 404 assumption process in the CWA. As Appendix F of the final report explains in detail, Congress purposely left out the reference to “past” waters used for interstate commerce to describe those waters the corps would retain jurisdiction over for purposes of 404 program assumption. Congress clearly intended that the parenthetical language in §404(g) be interpreted to mean that the corps should retain the same waters as the corps’ §10 waters, except those deemed navigable based solely on historical use, which were to be included as assumable waters for the state.22 In defending the minority recommendations, the corps ignores the clear legislative history described in the final report, which illustrates how Congress purposely included a different meaning of navigable waters for purposes of 404 assumption than the regulatory definition included in other parts of the CWA.
In addition, the corps also maintains that it should retain 404 permitting authority over the entirety of wetlands that are “adjacent” to navigable waters, using the definition of adjacent wetlands currently used for corps’ regulatory actions under §404 (i.e., the wetlands defined as adjacent under 33 C.F.R. §328.3, implemented through the 2008 Rapanos guidance).23 The purpose of retaining adjacent wetlands is to ensure that the corps has authority over activities that may alter the physical structure of the navigational channel or otherwise interfere with navigation. The corps’ broad definition of “adjacent” conflicts with this purpose. Thus, the extent of corps authority over adjacent wetlands under an assumed program should be limited to those wetlands that, if impacted, would likely affect navigation.
The subcommittee majority recommendation advised that the corps should retain administrative authority over all wetlands adjacent to retained RHA waters landward to an administrative boundary (i.e., 300 feet from the ordinary high-water mark) agreed upon by the state and the corps. The corps would retain administrative authority only over adjacent wetlands within the agreed-upon administrative boundary. This administrative line could be negotiated at the state level to take into account existing state regulations or natural features. If no change is negotiated, a 300-foot national administrative default line would be used. The recommendation of the subcommittee is more reasonable and in line with the intent of the CWA and RHA.
• Section 7 vs. Section 10 of the Endangered Species Act — The process to obtain a federal endangered and threatened species take authorizations under the ESA is another issue that has plagued Florida’s past attempts to obtain 404 assumption. Section 9 of the ESA prohibits any person from taking of a federally-listed threatened or endangered species (listed species) unless they have obtained the requisite authorization. The ESA provides two mechanisms for the authorization of those takings that are incidental to otherwise lawful activity — the §7 consultation process and the §10 permitting process.
The §7 consultation process provides incidental take authorization for federally permitted or funded projects. This consultation process is mandatory for any federal activity that “may affect” a listed species. The §7 process, however, is not applicable to non-federal projects. Congress amended §10 of the ESA in 1982 to provide a mechanism by which the FWS or NMFS, when marine species are at issue, can permit takings incidental to non-federal projects when mitigated by appropriate conservation measures. Section 10 of the ESA is the sole mechanism for authorizing incidental takes by non-federal projects.
Section 7 of the ESA requires federal agencies to consult with either the FWS or the NMFS to determine whether a proposed federal action (such as the corps issuing a 404 dredge-and-fill permit) is likely to jeopardize the continued existence of an endangered or threatened species or critical habitat.24 A project that “may affect, and is likely to adversely affect” federally listed endangered or threatened species must go through the formal §7 consultation process in which the FWS or NMFS prepares a biological opinion (BO). If the BO determines that the project will not jeopardize the continued existence of the species, then the FWS or NMFS will issue an incidental take statement (ITS) authorizing the conditional take of the affected listed species.
There are a couple notable differences between the §7 and §10 processes. Under §7, the FWS must complete consultation and issue its opinion within 90 days. This process typically occurs as the agency reviews other federal permits. By contrast, there is no mandatory time limit for completing the review of a §10 incidental take permit (ITP) application. A §10 ITP application must also include a detailed habitat conservation plan, which describes the steps that will be taken to minimize, mitigate for, and monitor the impacts to the listed species. The §7 consultation process is less time consuming and cumbersome than the ITP process established under §10 of the ESA. Because it was previously presumed that upon Florida assuming the 404 permitting program a project applicant would lose the ability to obtain the necessary ESA authorization through the §7 consultation process and, thus, be required to navigate the more time consuming and burdensome §10 process, Florida backed away from seeking 404 assumption.
In order for Florida assumption of the federal 404 permitting program to be a success, a process must be established that affords applicants of a state-issued 404 permit the ability to seek ESA authorizations through the §7 consultation process. Applicants must not be forced to seek an ITP under §10. One approach to achieve this could be for Florida, EPA, and the FWS to enter into a MOA that formalizes a process whereby EPA becomes an action agency, pursuant to its state 404 permit review responsibilities established in 40 C.F.R. §233.50 for permits that may affect endangered or threatened species. This would trigger the §7 consultation process and afford applicants the ability to obtain a BO and ITS under §7 of the ESA. This process would still provide all the necessary protections to federally listed species. Having to follow the §10 ESA process would cause significant delays in the permitting process and eliminate the government efficiencies that state 404 assumption would otherwise create.
Adoption of H.B. 7043 was a significant first step in Florida’s pursuit of 404 assumption, but there are still equally significant steps left before assumption can be obtained. The “Holy Grail” is in sight, but whether state assumption is truly deemed a success will depend heavily on the final results of FDEP’s rulemaking and the MOAs with EPA, the corps, and likely the FWS. Whether the issues raised above can be resolved will dictate if Florida can succeed in obtaining 404 assumption.
1 Craig Pittman, Gov. Rick Scott’s DEP Wants to Take Over Issuing Federal Wetland Permits, Tampa Bay Times, Jan. 29, 2018, available at http://www.tampabay.com/news/environment/Gov-Rick-Scott-s-DEP-wants-to-take-over-issuing-federal-wetland-permits_164779154.
2 33 U.S.C. §1344.
3 See U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1812 (2016) (The average applicant spends 788 days to obtain an individual CWA §404 permit from the corps.).
4 In Senate floor debate, Sen. Stafford, R-Vermont, stated that the state assumption portion of the CWA amendment “is in accord with the stated policy of Public Law 92-500 of preserving and protecting the primary responsibilities and rights of [s]tates or prevent, reduce and eliminate pollution. It provides for assumption of the permit authority by [s]tates with approved programs for control of discharges for dredged and fill material in accord with the criteria and with guidelines comparable to those contained in 402(b).”
5 Excepts those waters that 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 that are subject to the ebb and flow of the tide shoreward to their mean high water mark, or mean higher high water mark on the west coast, including wetlands adjacent thereto.
6 40 C.F.R. §233.10.
7 A notation in 40 C.F.R. §233.11 provides that “[s]tates should obtain from the [s]ecretary an identification of those waters of the U.S. within the [s]tate over which the [c]orps retains authority under [§]404(g) of the [a]ct.”
8 40 C.F.R. §233.11.
9 40 C.F.R. §233.13.
10 Where, as in Florida, a state permit program includes coverage of those traditionally navigable waters in which only the secretary may issue §404 permits, the state is encouraged to establish in this memorandum of agreement procedures for joint processing of federal and state permits, including joint public notices and public hearings.
11 40 C.F.R. §233.14.
13 40 C.F.R. §233.15.
15 33 U.S.C. §1344(h)(3).
16 Emphasis added.
17 33 U.S.C. §401, et seq.
18 33 U.S.C. §329.4 (emphasis added).
19 Final Report of the Assumable Waters Subcommittee 1 (May 2017), available at https://www.epa.gov/sites/production/files/ 2017-06/documents/awsubcommitteefinalreprort_05-2017_tag508_05312017_508.pdf.
21 Under 33 C.F.R. §328.3(a)(1), “waters of the United States” includes, in part, “all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide.”
22 See 122 Cong. Rec. 16,514-73 (June 3, 1976); see also 7 S. Rep. No. 95-370, at 75 (1977) reprinted in Comm. on Env’t & Publ. Works, 95th Cong., 4 A Legislative History of the Clean Water Act of 1977.
23 Final Report of the Assumable Waters Subcommittee at 5.
24 16 U.S.C. §1536; U.S. Fish and Wildlife Service and National Marine Fisheries Service, Endangered Species Act Consultation Handbook (Mar. 1998), available at https://www.fws.gov/endangered/esa-library/pdf/esa_section7_handbook.pdf.
ADAM F. BLALOCK is an attorney with Hopping Green & Sams in Tallahassee practicing primarily in the area of natural resources assisting clients in navigating the regulatory and legislative arenas. He represents clients in obtaining state environmental resource permits and federal 404 permits, and has been closely following DEP’s 404 assumption efforts.
This column is submitted on behalf of the Environmental and Land Use Law Section, David James, chair, and Susan Martin, editor.