TO WHOM IT MAY CONCERN: The U.S. Army Corps of Engineers (Corps) is announcing that the Environmental Protection Agency (EPA) has approved the State of Florida’s request to assume administration of a portion of the Clean Water Act (CWA) Section 404 program.
BACKGROUND: The State of Florida, with EPA approval, is authorized to administer its own permit program for the discharge of dredged or fill material into certain waters of the U.S. deemed “assumed waters.” The State of Florida’s authority under Section 404(g), CWA, in “assumed waters,” is in lieu of the permitting program implemented by the Corps, Jacksonville District. The State of Florida submitted its application to the EPA for the State 404 Program on August 20, 2020. On December 17, 2020, EPA approved the State of Florida’s request.
You can access information on State 404 Assumption on the Florida Department of Environmental Protection (FDEP)’s website at:
https://floridadep.gov/water/submerged-lands-environmental-resources-coordination/content/404-assumption.
STATE 404 PROGRAM: The State 404 Program will become effective on the date EPA published a notice in the Federal Register. More information regarding the Federal Register can be located at https://www.federalregister.gov/.
On the effective date of State 404 Assumption, the FDEP will assume regulatory authority of certain waters of the U.S. within the State of Florida. Those waters that the Corps will continue to regulate are referred to as “retained waters.” Pursuant to 404(g) of the CWA, the Corps will retain permitting authority under Section 404 of the CWA for 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, including wetlands adjacent thereto.
Therefore, the Corps will retain responsibility for permitting the discharge of dredged or fill material in:
- those waters identified in the Corps’ Retained Waters List. You can access the list of Corps’ Retained Waters on the Corps’ website at: https://www.saj.usace.army.mil/Missions/Regulatory/
- all waters subject to the ebb and flow of the tide shoreward to their mean high water mark that are not specifically listed in the Retained Waters List
- Wetlands adjacent to those waters identified above landward to the administrative boundary. The administrative boundary demarcating the adjacent wetlands over which jurisdiction is retained by the Corps is a 300-foot guideline established from the ordinary high water mark or mean high tide line of the retained water.
- Those waters of the United States within “Indian Country”
In the case of a project that involves discharges 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.
All waters of the United States not retained by the Corps will be assumed by FDEP as part of its State 404 Program. Projects in assumed waters will be processed by FDEP pursuant to the State 404 Program.
If you would like to determine if a water is either retained by the Corps or assumed by the FDEP, you can use the Retained Waters Screening Tool to view the Corps’ retained waters. This mapping tool depicts the approximate extent of retained waters, including the 300 foot guideline and those waters within Indian Country, as defined by the Memorandum of Agreement between FDEP and the Corps. To access the Retained Waters Screening Tool, please click on the link on FDEP’s webpage:
https://fdep.maps.arcgis.com/apps/webappviewer/index.html?id=2cb8724cfd18408db80c8f2d7bb68a2e
CORPS’ APPLICATION PROCESSING BEFORE AND AFTER THE EFFECTIVE DATE:
Prior to the effective date of State 404 Program, the Corps will continue to process all pending Department of the Army applications. However, the Corps will prioritize projects that can be completed prior to the anticipated effective date.
Upon the effective date of State 404 Program, all pending actions proposing the discharge of dredged or fill material within state assumed waters will be transferred to FDEP. The Corps will send notifications of the transfer to the applicant/requestor. Applicants are encouraged to follow up with the FDEP regarding their application.
After the effective date of the State 404 Program the Corps will continue to process:
- Pending applications for authorization under Section 10 of the Rivers and Harbors Act of 1899 (RHA).
- Pending applications for authorization under Section 404 of the CWA where there is a discharge of dredged or fill material into retained waters.
- Pending request to modify existing Department of the Army permits that authorized a discharge of dredged or fill material into a retained water.
- Pending requests for minor modifications to existing Department of Army permits located in assumed waters. Minor modifications are generally ministerial in nature, and shall include the following: a) to correct errors or typographical mistakes; b) to incorporate changes requested by the Corps; c) to change due dates for reporting or performance deadlines; d) to transfer a permit upon a change in ownership or control; and e) to make minor technical changes. Minor modifications may include other minor changes; however, in no case will a minor modification expand the volume or amount, enlarge the footprint, change the location, or extend the duration of the authorized discharge.
- Pending requests for jurisdictional determinations where the review area is located in a retained water including the 300-foot administrative boundary.
More information regarding what constitutes an assumed or retained water and specific details about the State 404 Program can be found at
https://floridadep.gov/water/submerged-lands-environmental-resources-coordination/content/404-assumption
and
https://www.saj.usace.army.mil/Missions/Regulatory/Source-Book.
General questions for the Corps can be sent to Florida404Program@usace.army.mil.
Questions regarding a specific pending Department of the Army application should be sent to the Corps’ project manager or send an email to the office where the application is located (see attached map with phone numbers and emails for each Corps office).
General questions for the FDEP on the State 404 Program should be sent to State_404@FloridaDEP.gov.