State of Florida’s request to assume a portion of Clean Water Act Section 404 program:
Pursuant to Section 404(g) of the Clean Water Act (CWA), 33 U.S.C. § 1344(g), the State of Florida is seeking to assume administration of a portion of the CWA Section 404 program, referred to as Assumption. The State of Florida submitted its application to the Environmental Protection Agency (EPA), which has until December 17, 2020 to approve or deny the State’s request. If the EPA approves the State’s request, the U.S. Army Corps of Engineers (Corps) anticipates Assumption would be implemented between December 17, 2020 and January 15, 2021. The State of Florida is proposing that the Section 404 program will be administered by the Florida Department of Environmental Protection (FDEP). Once the date of Assumption becomes effective, the Corps will transfer to the FDEP any pending Section 404 permit applications proposing discharges in State ‘assumed’ waters. However, the Corps will maintain Section 404 authority over certain waters, referred to as ‘retained’ waters. Retained waters include those waters that (1) are specifically listed in the Retained Waters List (2) waters subject to the ebb and flow of tide, and (3) wetlands adjacent thereto landward to a 300-foot administrative boundary. In the case of a project that involves a discharge of dredged or fill material both waterward and landward of the 300-foot guideline, the Corps will retain jurisdiction to the landward boundary of the project for the purposes of that project only.
Click here to access FDEP's webpage to determine if your project resides in Retained Waters.
Alternative/Emergency Permitting Procedures for Hurricane Sally
The Jacksonville District received emergency permitting authorization on September 24, 2020, in response to Hurricane Sally, which made landfall on Sep 16, 2020, near Gulf Shores, Alabama. These procedures have been granted for 6 months, or until Mar 24, 2021. As a result of Hurricane Sally, portions of Northwest Florida have been impacted by storm surge, winds, and flooding. The District has coordinated these emergency permitting procedures with resource Agencies and Tribes. An “emergency” is defined as a situation, which would result in an unacceptable hazard to life, a significant loss of property or an immediate, unforeseen, and significant economic hardship if corrective action requiring a permit is not undertaken within a time period less than the normal time needed to process the application under standard procedures. Typically, an emergency permit is for work that has to be done in a hurry. The District anticipates that many requests received may be addressed through one or more General Permits, including Nationwide Permits. The District will distribute a public notice on these procedures which may be found at: http://www.saj.usace.army.mil/Missions/Regulatory/Public-Notices
11 Sep 2020 Clean Water Act Section 401 Certification Rule Implemented:
Effective September 11, 2020, the “Clean Water Act (CWA) Section 401 Certification Rule” (85 Fed. Reg. 42,210 (July 13, 2020)) is being implemented nationwide. The Rule (to be codified at 40 C.F.R. Part 121) establishes procedures that promote consistent implementation of CWA Section 401 and regulatory certainty in the federal permitting process. Section 401 of the CWA provides states and authorized tribes with an important tool to help protect the water quality of federally regulated waters within their borders, in collaboration with federal agencies. Section 401 of the CWA requires that, for any federally licensed or permitted project that may result in a discharge into waters of the United States, a water quality certification be issued to ensure that the discharge complies with applicable water quality requirements. The Rule addresses some key areas of the CWA Section 401 certification process, including timelines for review and action, the scope of certification review, and early engagement (pre-filing meetings). More information on the Rule is available at the following website: https://www.epa.gov/CWA-401 Also refer to the SAJ Public Notice announcing the 11 Sep 2020 Clean Water Act Section 401 Certification Rule Implementation.
22 Jun 2020 – Navigable Waters Protection Rule becomes effective:
The Environmental Protection Agency (EPA) and the Department of the Army’s Navigable Waters Protection Rule (NWPR): Definition of “Waters of the United States” became effective on June 22, 2020 in 49 states and all US territories. The NWPR establishes the scope of federal regulatory authority under the Clean Water Act. The NWPR includes four simple categories of jurisdictional waters and provides specific exclusions for many water features that traditionally have not been regulated. The Federal Register notice is available at https://www.federalregister.gov/documents/2020/04/21/2020-02500/the-navigable-waters-protection-rule-definition-of-waters-of-the-united-states. Additional information about the rule can be found on the EPA’s website at https://www.epa.gov/nwpr.
The interim approved jurisdictional determination form and user manual for the Navigable Waters Protection Rule can be found at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/juris_info/.