Legal Briefs: Streamlined or Fast

In the next few months, Florida aims to make Clean Water Act (CWA) history, hoping to become just the third state to assume CWA section 404 permitting authority. In early November last year, the U.S. Environmental Protection Agency (EPA) wrapped up the public comment period concerning Florida’s proposal to take over statewide section 404 permitting authority from the U.S. Army Corps of Engineers (the Corps). Florida’s proposal drew thousands of comments, from interested parties across the state, and EPA expects to decide soon. Most expect EPA to grant Florida’s request—before the next presidential inauguration.

So what’s the big deal? If you’re building or discharging near (or in) waters or wetlands, chances are you need a permit or two. Under the current regime, the Florida Department of Environmental Protection (FDEP) and the state water management districts regulate most discharges through the Environmental Resource Program (ERP) permitting program. Federal authorities—specifically, the Corps— often regulate those same discharges and projects, in parallel, through the section 404 program. One project, in other words, often requires permittees to jump through overlapping state and federal permitting hoops.

The CWA allows state agencies to “assume” federal section 404 permitting authority. Florida recently submitted an application to do just that, seeking to join Michigan and New Jersey as the only states currently authorized to implement the section 404 program (though other states are pursuing section 404 assumption). As part of the application process, FDEP issued a suite of new regulations, negotiated a “memorandum

of agreement” with EPA, and started training staff on section 404 permitting requirements.

The FDEP contends that assumption would “streamline” state water permitting, uniting state and federal permitting requirements under a single state permitting umbrella. As FDEP sees it, nearly 85 percent of state (ERP) and federal (section 404) review requirements already overlap, meaning assumption could generate significant time, resource, and cost efficiencies for Florida permittees and regulators. The FDEP also couches assumption as giving Floridians a greater say over their own natural resources.

Many commenters agreed, describing the current system as slow, duplicative, and inefficient; yet, some worry that streamlining could stray into rubberstamping. Certain interest groups, in particular, argue that Florida state agencies are under-resourced, potentially less attentive to federal obligations, and prone to green light projects.

With the comment period closed, the decision is in EPA’s hands. Smart money says EPA is likely to approve Florida’s request, probably around the new year. If that happens, the Corps, EPA, and FDEP will begin transition work almost immediately. While the regulated community should expect some regulatory growing pains, efficiencies should materialize sooner rather than later. The ability to submit one application, to one set of regulators who are applying harmonized regulatory criteria, should enhance permitting predictability, efficiency, and economics. At the same time, the regulated community shouldn’t expect dramatic substantive permitting changes. If Florida assumes section 404 authority, federal law requires that state authorities regulate dredge-and-fill activities at least as stringently as the CWA, using most of the CWA regulatory criteria.

As is often the case, litigation does add an aura of uncertainty. Unhappy interest groups could sue EPA over any assumption decision, seeking to undo and enjoin assumption. And EPA retains oversight authority over state section 404 assumption, including over certain individual permit decisions and the overall delegation decision. If FDEP shirks its permitting duties, or interest groups end up dissatisfied, EPA can object to individual permitting decisions or—more drastically— withdraw section 404 assumption authority entirely. With a presidential changing of the guard looming, anything could happen. Happy New Year to all!

Kyle Robisch is an environmental, regulatory, and business attorney based out of the Bradley Arant Boult Cummings LLP Tampa office. He assists clients with a wide range of legal issues, including infrastructure development, federal and state environmental permitting, and all manners of litigation (environmental and otherwise). Kyle is especially experienced with the Clean Water Act and the National Environmental Policy Act. He recently chaired the American Bar Association’s Water Resources Committee and is a proud second-generation Florida Gator. You can reach Kyle at 813-5595595 or krobisch@bradley.com. He welcomes your ideas for future article topics. S

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