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The protection of Florida’s myriad wetlands is a central part of environmental regulation in Florida.

Any person who wants to do work that could involve dredging or filling a Florida wetland is required to obtain a permit from the Florida Department of Environmental Protection (FDEP) or their local water management district.

If that wetland also happens to be a federal wetland (and many state wetlands are also federal wetlands), a federal permit from the U.S. Army Corps of Engineers (USACE) is also necessary.

Under recently filed legislation slated for consideration in Florida’s upcoming legislative session beginning January 9, that may change.

Senate Bill 1402

Under the provisions of Senate Bill 1402, FDEP would be authorized to make changes to its existing regulations that would allow it to assume permitting of federal wetlands in Florida, in addition to its current state wetland permits.

In addition to legislative authority, FDEP also needs to obtain the assent of the federal agencies involved in the federal wetlands “404” program for regulating federal wetlands, known by the section of the Clean Water Act authorizing the federal program. According to FDEP, assumption of the federal 404 program is a top priority, and FDEP is currently in the process of negotiating Memorandums of Agreements with the relevant federal agencies that would allow assumption if the legislation passes. Ultimately, such Memorandums of Agreements would be necessary between FDEP and the USACE, the Environmental Protection Agency, and the U.S. Fish & Wildlife Service.

Impact on Florida property owners

While many regulated parties will welcome an end to largely duplicative state and federal permitting processes, and the lengthy period of time associated with federal 404 permits, the devil will be in the details of the Memorandums of Agreements.

Particular interest exists on the potential impacts to review under the Endangered Species Act under a state-assumed program.

Currently, reviews under the Endangered Species Act are handled under Section 7 of the Act, and some concerns exist about state assumption pushing such reviews into the more time-consuming Section 10.

Some also have reservations about the permit duration being limited to five years to match the existing federal standards. Regardless of its merits, developers, farmers, miners, timber companies – any group that regularly works in and around wetlands – will want to pay attention to the legislative process and review the Memorandums of Agreements when initial drafts are released.

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Gunster attorney Greg MunsonGreg Munson is the former general counsel and deputy secretary for water policy at the Florida Department of Environmental Protection. Since 2013, he has been a shareholder practicing environmental law and government affairs out of Gunster’s Tallahassee office.

This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

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Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 13 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach, Winter Park, and its headquarters in West Palm Beach. With more than 200 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at

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