In December 2020, the Florida Department of Environmental Protection (FDEP) “assumed” the Section 404 federal wetland permitting program from the US Army Corps of Engineers (USACE) for certain non-tidally influenced projects in Florida. However, on February 15, 2024, the U.S. District Court in Washington, D.C. issued a decision to vacate the U.S. Environmental Protection Agency’s (EPA) “approval of Florida’s assumption application,” effectively ending the Florida State 404 program. The Court stated that the EPA and US Fish and Wildlife Service (USFWS) “committed a serious error” by allowing the state program to utilize Section 7 (of the Endangered Species Act) Incidental Take protection, which is limited to federal agencies and actions and provides legal protection for certain “incidental” or minor impacts to endangered species.

The Court decision indicated that State 404 permits issued to date remain valid. Florida’s state wetlands regulations and permitting authority (called Environmental Resource Permits [ERP]) and USACE 404 wetland permit applications for projects in retained waters remain unaffected. However, projects awaiting FDEP’s State 404 permit review are now in limbo, as the FDEP cannot act on pending State 404 applications and is not currently providing compliance oversight of existing State 404 permits.

Recognizing the ever-changing nature of environmental permitting, our team is proactively assisting our clients affected by this development. Our ecologists are diligently preparing and submitting new 404 applications to USACE to mitigate project delays. While the duration of court proceedings remains uncertain, we’re committed to closely monitoring the situation and offering guidance as it unfolds.

For further information, please contact Laura Brady Herrero at [email protected].