EPA Grants 404 Permitting to the State of Florida

EPA Grants 404 Permitting to the State of Florida

January eNewsletter 2021

The U.S. Environmental Protection Agency signed over the authority to grant wetlands permitting authority to the State of Florida on December 17.   This is the conclusion to a process that has been a year in the making and makes Florida the third state with this authority, commonly called ‘404 permitting’ because it falls under the Clean Water Act Section 404 in Federal Regulations.

In general, Section 404 of the Clean Water Act requires permits for the discharge of dredged or fill materials into waters of the United States, including wetlands.  However, most agricultural activities are exempt from permits under Section 404(f)(1) including:

• Established (ongoing) farming, ranching, and silviculture activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices.
• Maintenance (but not construction) of drainage ditches.
• Construction and maintenance of irrigation ditches.
• Construction and maintenance of farm or stock ponds.
• Construction and maintenance of farm and forest roads, in accordance with best management practices.
• Maintenance of structures such as dams, dikes, and levees.

You do not generally need a permit under Section 404 if your discharges of dredged or fill material are associated with normal farming, ranching, or silviculture activities such as plowing, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products or upland soil and water conservation practices. This exemption pertains to “normal farming” and harvesting activities that are part of an established, ongoing farming or forestry operation.

If an activity listed above as exempt represents a new use of the water, and the activity would result in a reduction in reach or impairment of flow or circulation of regulated waters, including wetlands, the activity is not exempt. Both conditions must be met in order for the activity to be considered non-exempt. In general, any discharge of dredged or fill material associated with an activity that converts a wetland to upland is not exempt and requires a Section 404 permit such as bringing a wetland into farm production where the wetland has not previously been used for farming .

With the delegation of 404 permitting being granted to the State of Florida, the Florida Department of Environmental Protection has assumed this permitting authority.