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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Greg 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.
