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DEP ASSUMPTION OF SECTION 404 PERMITS
TALLAHASSEE, FL. – On Dec. 22, 2020, the U.S. Environmental Protection Agency (EPA) published their approval of Florida’s State 404 Program in the Federal Register, and the Florida Department of Environmental Protection (DEP) began administering the State 404 Program on that date.
In 2018, Florida's legislature passed a bill that gave DEP authority to begin the public rulemaking process to better protect the state's wetlands and surface waters by assuming the federal dredge and fill permitting program under section 404 of the federal Clean Water Act within certain waters. The rulemaking process was completed on July 21, 2020. Through this process, Chapter 62-331, Florida Administrative Code (F.A.C.), “State 404 Program,” was created to bring in the requirements of federal law not already addressed by the existing Environmental Resource Permitting (ERP) program. Minor changes were also made to the ERP rules in Chapter 62-330, F.A.C., to facilitate assumption. Florida submitted its assumption package to the EPA on Aug. 20, 2020.
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State assumption of the 404 program provides a streamlined permitting procedure within which both federal and state requirements are addressed by state permits. This provides greater certainty to the regulated community, conserves resources of both the applicant and regulator, and affords the state greater control over its natural resources while complying with federal law. The State 404 Program is a separate program from the existing ERP program, and projects within state-assumed waters require both an ERP and a State 404 Program authorization. Efficiency comes from the fact that approximately 85% of review requirements overlap between programs, eliminating duplicative review.
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The State 404 Program is responsible for overseeing permitting for any project proposing dredge or fill activities within state assumed waters. Such projects include, but are not limited to: single family residences; commercial developments; utility projects; environmental restoration and enhancement; linear transportation projects; governmental development; certain agricultural and silvicultural activities; and in-water work within assumed fresh water bodies such as boat ramps, living shorelines and other shoreline stabilization.
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USFWS LISTS FLORIDA BONNETED BAT AS ENDANGERED
VERO BEACH, FL. – The U.S. Fish and Wildlife Service is listing the Florida bonneted bat as endangered under the Endangered Species Act (ESA). The bat is only found in south and southwest Florida, primarily in Charlotte, Lee, Collier, Monroe, and Miami-Dade Counties. Recent data also suggest the bat also is found in portions of Okeechobee and Polk Counties and possibly in some areas within Glades County.
The largest Florida bat, the Florida bonneted bat is non-migratory, eats insects, and is free-tailed, meaning its tail extends well beyond a short tail membrane. The name “bonneted bat” originates from its large, broad ears, which project forward over the eyes. The Florida bonneted bat uses forests, wetlands, and other natural habitats. It exists in residential and urban areas. At present, no active, natural roost sites are known. All active, known roosts are bat houses.
The Florida bonneted bat is threatened by habitat loss, degradation, and modification from human population growth and associated development and agriculture. Other threats include its small population size, restricted range, low fertility, weather-related events, such as hurricanes and lengthy cold snaps, removal or displacement by people, and potential impacts from pesticide applications, such as exposure and impacts to insects the bat eats.
The protection for the Florida bonneted bat under the ESA becomes effective November 2, 2013, 30 days after the rule is published in the October 2, 2013 Federal Register.
The decision to list the Florida bonneted bat is part of the Service’s efforts to implement a court-approved work plan that resolves a series of lawsuits concerning the agency’s ESA Listing Program. The intent of the agreement is to significantly reduce litigation-driven workloads and allow the agency to focus its resources on the species most in need of the ESA’s protections over the next few years.
The Service opened a 60-day public comment period October 4, 2012, that allowed peer and public review and comment on the proposal to list the species as endangered. All relevant information received from the public, government agencies, the scientific community, industry, or any other interested parties was considered and addressed in the Service’s final listing determination for the species.
EPA & ACOE PROPOSING NEW WATER RULES
WASHINGTON – The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) today jointly released a proposed rule to clarify protection under the Clean Water Act for streams and wetlands that form the foundation of the nation’s water resources. The proposed rule will benefit businesses by increasing efficiency in determining coverage of the Clean Water Act. The agencies are launching a robust outreach effort over the next 90 days, holding discussions around the country and gathering input needed to shape a final rule.
Determining Clean Water Act protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006. For nearly a decade, members of Congress, state and local officials, industry, agriculture, environmental groups, and the public asked for a rulemaking to provide clarity.
The proposed rule clarifies protection for streams and wetlands. The proposed definitions of waters will apply to all Clean Water Act programs. It does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.
“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities,” said EPA Administrator Gina McCarthy. “Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations.”
“America’s waters and wetlands are valuable resources that must be protected today and for future generations,” said Assistant Secretary of the Army (Civil Works) Jo-Ellen Darcy. “Today’s rulemaking will better protect our aquatic resources, by strengthening the consistency, predictability, and transparency of our jurisdictional determinations. The rule’s clarifications will result in a better public service nationwide.”
The health of rivers, lakes, bays, and coastal waters depend on the streams and wetlands where they begin. Streams and wetlands provide many benefits to communities – they trap floodwaters, recharge groundwater supplies, remove pollution, and provide habitat for fish and wildlife. They are also economic drivers because of their role in fishing, hunting, agriculture, recreation, energy, and manufacturing.
About 60 percent of stream miles in the U.S. only flow seasonally or after rain, but have a considerable impact on the downstream waters. And approximately 117 million people – one in three Americans – get drinking water from public systems that rely in part on these streams. These are important waterways for which EPA and the Army Corps is clarifying protection.
Specifically, the proposed rule clarifies that under the Clean Water Act and based on the science:
* Most seasonal and rain-dependent streams are protected.
* Wetlands near rivers and streams are protected.
* Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant. However, to provide more certainty, the proposal requests comment on options protecting similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis.
The proposed rule preserves the Clean Water Act exemptions and exclusions for agriculture.
Additionally, EPA and the Army Corps have coordinated with the U.S. Department of Agriculture (USDA) to develop an interpretive rule to ensure that 53 specific conservation practices that protect or improve water quality will not be subject to Section 404 dredged or fill permitting requirements.
* The agencies will work together to implement these new exemptions and periodically review, and update USDA’s Natural Resources Conservation Service conservation practice standards and activities that would qualify under the exemption.
Any agriculture activity that does not result in the discharge of a pollutant to waters of the U.S. still does not require a permit.
The proposed rule also helps states and tribes – according to a study by the Environmental Law Institute, 36 states have legal limitations on their ability to fully protect waters that aren’t covered by the Clean Water Act.
The proposed rule is supported by the latest peer-reviewed science, including a draft scientific assessment by EPA, which presents a review and synthesis of more than 1,000 pieces of scientific literature.
The rule will not be finalized until the final version of this scientific assessment is complete.
Forty years ago, two-thirds of America’s lakes, rivers and coastal waters were unsafe for fishing and swimming. Because of the Clean Water Act, that number has been cut in half. However, one-third of the nation’s waters still do not meet standards.
The proposed rule will be open for public comment for 90 days from publication in the Federal Register.