The Nickel Report

As we previously reported, for the first time in over 25 years, the U.S. Environmental Protection Agency (EPA) has approved the formal transfer of Clean Water Act (CWA) section 404 permitting authority to a state.  On December 22, 2020, the State of Florida – only the third state to receive such approval – “assumed” 404 permitting authority from the U.S. Army Corps of Engineers (Corps) in certain waters of the United States (WOTUS).  Since that time, CWA section 404 permit applicants have faced a number of questions about the scope and process of assumed 404 permitting.  Five of the top questions are listed below, followed by their answers.

1. To which agency should I submit my 404 application – the Corps or the state?

States that assume CWA section 404 permitting become the 404 permitting authority for most inland waters within the state (such as inland wetlands and smaller rivers and streams), but the Corps retains permitting jurisdiction over most traditional navigable waters (such as larger navigable rivers and coastal waters) and wetlands adjacent to those waters. So, the key question is whether the water is “assumed” by the state or “retained” by the Corps.

Retained waters generally include traditional navigable waters, such as larger navigable rivers, coastal waters, and wetlands adjacent to such waters up to a 300-foot administrative boundary.  Assumed waters include all other WOTUS, and in Florida, this generally consists of inland features, such as smaller rivers, streams, creeks, lakes, and their adjacent wetlands.  To determine whether the Corps or the state agency (in Florida, the Florida Department of Environmental Protection (FDEP)) will issue a 404 permit for a project, FDEP has developed a map that includes a GIS layer of the Corps’ retained waters. This online tool, can be accessed here.

If a project will result in discharges of dredged or fill material in retained waters, the 404 application generally should be submitted to the Corps.  If the proposed project impacts only assumed waters (and does not impact retained waters), FDEP will generally process the application.  In Florida, even if most WOTUS impacts from a proposed project will occur within assumed waters, if the project impacts any retained waters, the 404 permit will be processed by the Corps for all WOTUS impacts.

If FDEP has reason to believe that a proposed activity is within Corps jurisdiction but is not depicted in the retained waters GIS layers, FDEP will request that the Corps determine whether the project falls within retained waters.

2. What delineation methodology will the state use to determine the landward extent of WOTUS on a project site, and how will this affect the scope of impacts?

The wetland delineation methodology used by a state to determine the landward extent of a water subject to CWA jurisdiction may vary somewhat from state to state, but will be designed to determine the lateral extent of federal CWA jurisdiction.

In Florida, the state adopted the federal WOTUS definition in its entirety as part of assumption.  And to increase efficiency, FDEP considers any wetlands or other surface waters identified during the delineation as waters that “could be” jurisdictional, and “will treat them as if they are, unless the applicant clearly demonstrates otherwise.”  As a practical matter, because the state relies on the state delineation methodology, and the state methodology could be broader in certain circumstances than the federal methodology, more waters are likely to be considered WOTUS and thus subject to 404 jurisdiction by the state than would be deemed WOTUS by the Corps.  However, FDEP allows applicants to make the case that an area is not jurisdictional even if the state has preliminarily determined it is a jurisdictional WOTUS.

An increase in areas deemed WOTUS by a state could make it more difficult to obtain a state-issued CWA 404 by exceeding eligibility thresholds for general permits or complicating required CWA 404(b)(1) alternatives analyses.  Therefore, an applicant may, depending on the circumstances, wish to make the case that certain areas are not jurisdictional under the 404 program.

3. Can my project proceed through a streamlined CWA 404 general permit process?

States with assumed CWA 404 permitting may issue state general 404 permits.  If a project would otherwise qualify for a Corps NWP (e.g., it has minimal adverse environmental effects), then it will likely qualify for a state general permit.  FDEP’s 404 program adopted a general permit process that is similar to the Corps’ nationwide permit (NWP) program, and FDEP also assumed administration of seven Corps Regional General Permits.

Under the Corps’ federal 404 program, projects with minimal adverse environmental effects can obtain streamlined 404 authorization through the Corps’ nationwide permit (NWP) process.  The Corps’ NWP program includes over 50 NWPs that authorize various activities ranging from bank stabilization to land-based renewable energy generation facilities.

FDEP has established a general permit program that is nearly identical to the Corps’ NWP program.  The state program, however, is based on the Corps’ 2017 NWPs (not the 2021 modifications).  Therefore, there are some key differences.  For example, the Corps’ 2021 modifications trifurcate the NWP for utility lines into NWPs specific to the type of utility (e.g., telecommunication, oil and natural gas, or water).  FDEP has established one state general permit for “Utility Line Activities.”  This state general permit authorizes activities related to the construction, maintenance, repair, and removal of any type of utility line, provided the activity does not result in the loss of greater than ½-acre of state-assumed waters.  Overall, the state general permits authorize over 30 different categories of activities that have been determined to cause only minimal adverse environmental effects.

 In addition to the state general permits, FDEP has assumed administration of seven Corps RGPs in state-assumed waters, including SAJ-13 (Aerial Transmission Lines) and SAJ-14 (Sub-aqueous Utility and Transmission Lines in Florida).  In some circumstances, the conditions of a Corps RGP may be preferable to the state general permit.

When determining if a project qualifies for a general permit, the applicant should consider the type of activities involved, the applicable acreage limitations, and other relevant conditions that may limit the use of the permit.

4. What if my project affects federally-listed species? How do I obtain authorization under the Endangered Species Act?

The Endangered Species Act (ESA) generally prohibits “take” of any endangered species, and the prohibition extends to most threatened species by rule.  “Take” is defined broadly to include “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”  Proposed projects that anticipate take of federally-listed species will generally need incidental take authorization from the U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS).  In addition to potential federal enforcement actions, the ESA allows for citizen suits for any alleged violations of the ESA, including for unauthorized takes.

In Florida, the FWS, EPA, and FDEP have developed a technical assistance process to provide incidental take authorization to state 404 permit applicants.  Through this extensive process, incidental take will be exempt from the ESA prohibitions if the permittee implements all permit conditions (e.g., minimization measures, monitoring, and reporting) recommended by FWS.  Alternatively, project proponents may apply directly to FWS for an incidental take permit under section 10 of the ESA.

FDEP will deny a 404 permit if FWS concludes it is likely to jeopardize the continued existence of a species or result in adverse modification to critical habitat and no protection measures are available to reduce the risk to an acceptable level.

5. State 404 permits expire after five years. What if my proposed project will take longer than five years to complete?

There are no limits on the expiration date the Corps may set in a 404 permit.  However, section 404 permits under a state assumed program will be subject to a statutory five-year expiration date requirement.  To address this limitation, some projects may need to be permitted in phases through a long-term conceptual planning process.

In Florida, under the long-term conceptual planning process, all activities reasonably related to the project shall be included in the same permit application, which means the applicant should provide sufficient information for FDEP to review the entire scope of the project.  This would involve creating a long-term planning document that explains how the project is phased, i.e., what activities can be completed within each phase (no phase can be longer than five years), and an assessment of cumulative environmental impacts.

During review of the first phase, FDEP would review the entire project as proposed.  FDEP would then rely on this environmental review and analysis to expeditiously process the permit for each subsequent phase.  To the extent that there have been material changes to the project, FDEP may need to perform additional review before issuing a permit for the next phase of the project.