State 404 Program – What is it? – Earth Tech Environmental

If you’re looking into or in the process of building your dream home, you may come across roadblocks that you didn’t see coming. The biggest one many people don’t foresee is the environmental permitting and regulations of developing a home, especially in wetlands. During this process of developing in wetlands, you’ll encounter “Environmental Resource Permitting (ERP)”, which is the permit you’ll need if impacts to wetlands (dredging/filling) will result from the building of your home. Proposed activities are regulated through a permit review process. With so many properties in SWFL containing wetlands, many people will have to go through this intimidating process.

In addition to the ERP, another permit may be needed in order to build in wetlands to satisfy Section 404 of the Clean Water Act; the State 404 Program.

Wetlands surrounding other surface waters (OSW)

Section 404 of the Clean Water Act is the program that regulates the dredging/filling of or in Waters of the United States (WOTUS), which includes wetlands. Section 404 requires a permit before dredging or filling may occur, unless the activity is exempt from Section 404 regulation. A Section 404 permit is done alongside an ERP for both residential and commercial developments in Florida.

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 permit. So, what is it then? Let’s first go back to see how it came about.

Historically, the U.S. Army Corps of Engineers (ACOE) had federal jurisdiction and was the reviewer and issuer of the 404 permits. In December 2020, the Florida Department of Environmental Protection (FDEP) assumed responsibility of Section 404 permitting, which is now known as the “State 404 Program”, which applies to both residential and commercial developments under the following circumstances for projects containing WOTUS:

If the project falls within 300 feet of WOTUS (Waters of the United States – federally retained waters), then permits will go through the U.S. Army Corps of Engineers (ACOE) (Section 404 Permit).
If the project falls outside 300 feet of WOTUS (state assumed waters), then permits will go through FDEP (State 404 Program permit) – Despite the project being outside of WOTUS, verification of this is required through the submittal of a “No Permit Required” (NPR) determination.

The following web diagram shows this nicely:

*Commercial projects additionally require a South Florida Water Management District (SFWMD) ERP, while single-family residential projects require an FDEP ERP.

What is an NPR you may ask? It means that no permit is required because the wetlands or other surface waters (OSW) on the property are isolated, lacking connectivity to adjacent wetlands or surface waters.

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 congruency among the regulating agencies, conserves resources of both the applicant and regulator, and affords the state greater control over its natural resources while complying with federal law.

*On August 30, 2021 a U.S. District Court for the District of Arizona ruling was made that vacated the previous administrations interpretation of the Navigable Waters Protection Rule and has reverted the interpretation of the “Waters of the United States” (WOTUS) to the pre-2015 regulatory administrations definitions until further notice. What this means in the state of Florida since the FDEPs assumption of jurisdiction from the ACOE on December 16, 2020, is that “wetlands” in the state will fall under a much broader definition as defined by the pre-2015 WOTUS definition. Under the pre-2015 WOTUS definition wetlands in the state of Florida will virtually all be jurisdictional under the State 404 program.*

Trying to take this all in may seem like a daunting process. It is not that bad! If you need assistance on your journey of building or expanding your new home, please don’t hesitate to reach out to us! We will work with you to make this process as easy as possible.

For additional in-depth information about the State 404 Program, you can check out the FDEP Website.