EFFECTIVE IMMEDIATELY: The State of Florida has been ordered to cease the administration of the State 404 program.
In December 2020, the EPA approved the State’s adoption of the 404 program, which granted the State permission to issue dredge and fill permits under Section 404 of the federal Clean Water Act within applicable waters. Since December 2020, the State 404 program has applied to a significant portion, if not the majority, of state dredge and fill applications. Therefore, the implications of this ruling are significant and far-reaching for both current and future dredge and fill permit applications in Florida.
Late on February 15, 2024, a federal District Court issued judgment in the case of Center for Biological Diversity v. United States Environmental Protection Agency (EPA), State of Florida, et al. The federal court order says in part that: “unless and until such a limited stay issues, the State is without any authority to issue a Section 404 permit, and all Section 404 permitting authority in the State of Florida is vested in the Army Corps of Engineers…” Effectively, this ruling nullifies any ability the Florida Department of Environmental Protection had to issue any 404 permits for dredge and fill activities that impact federally regulated waters; these have been allowed under the State 404 program for the last 3+ years. The Court has provided a limited time, “within ten days of this decision,” for the State of Florida to file for a limited stay. If approved, the limited stay would likely be restricted to projects with “no effect” determinations, to allow those projects to proceed under the current program. A “mechanism” for this process would need to be approved by the judge and could take a week to several months to finalize. We will continue to provide more information regarding this pivotal decision as it becomes available.
WILL MY PROJECTS BE AFFECTED?
There is limited information available at this time, but all projects in the process of obtaining a 404 application are currently on hold indefinitely. At this time, previously issued 404 permits are valid, and the permittee may continue to operate under that authorization. Any new applications or applications in process are immediately placed on hold until further notice.
SWCA CAN HELP
SWCA will provide our clients with current information as soon as it is available to help our clients navigate the regulatory permitting processes. We are actively seeking workarounds or solutions to help guide our clients to the best alternatives. Information on regulatory implementation of this judgement is continually developing and SWCA is seeking out verified information as it becomes available.
%20janet [dot] herrick [at] swca [dot] com (Janet Herrick) | Jacksonville Office Director
%20david [dot] crawley [at] swca [dot] com (Davy Crawley) | Pensacola/Tampa Office Director
brent [dot] handley [at] swca [dot] com (Brent Handley) | Southeast Cultural Resources Director