Assistant Secretary of the Army for Civil Works signs Memorandum of Agreement with FL for assumption of Section 404

By U.S. ArmyAugust 6, 2020

WASHINGTON (Aug. 6, 2020) -- Yesterday, the Assistant Secretary of the Army for Civil Works, the Honorable R.D. James, co-signed a Memorandum of Agreement (MOA) with the Secretary of the Florida Department of Environmental Protection (DEP), Mr. Noah Valenstein, regarding the state’s assumption of the Section 404 program under the Clean Water Act (CWA). Under section 101(b) of the CWA, Congress expressed that it was their policy "that the States…implement the permit programs under sections 402 and 404 of this Act." Under section 404(g) of the CWA, States and Tribes are authorized to take an active role in the permitting of the discharge of dredged and fill material within their respective jurisdictions by assuming administration of the CWA section 404 program which is generally implemented by the U.S. Army Corps of Engineers (Corps).

“Signing this MOA for Florida’s assumption of the 404 Program is one big step to meet the intent of Congress as well as the goals of this Administration in balancing the power of the federal government with the authority of states to regulate waters within their borders. This MOA is a good example of where the federal government and states can work in partnership to protect the Nation’s waters from pollution,” said R.D. James.

Many states have expressed interest in assuming the program, and with this action, Florida joins Michigan and New Jersey in taking control of their desire to better balance environmental protection with needed economic development. Florida currently administers aquatic resource protection programs similar to the Federal CWA Section 404 Program. Assumption by the state of Florida will therefore help reduce unnecessary duplication between programs. The state regulators are located closer to the proposed activities and are often more familiar with local resources, issues, and needs than the Corps.

States and Tribes can assume administration of the CWA Section 404 program only for certain waters. The Corps would retain jurisdiction of: waters that are jurisdictional under section 10 of the Rivers and Harbors Act (RHA) of 1899 but do not include those waters that qualify as "navigable" solely because they were "used in the past" to transport interstate or foreign commerce; and, wetlands adjacent to those retained waters above, landward to an administrative boundary agreed upon by the State or Tribe and the Corps. Assumption of permitting authority by Florida pursuant to CWA section 404(g) does not affect the Corps’ responsibilities to regulate navigable waters under section 10 of the RHA.

The Environmental Protection Agency (EPA) oversees the CWA Section 404 assumption program. Under section 404(h) of the CWA, EPA has 120 days upon receipt of a complete application to review and make a decision on Florida’s assumption request. One of the required elements for Florida’s request is the signed MOA between Army and Florida. Florida’s permit program must be consistent with the requirements in the CWA and EPA’s implementing regulations at 40 CFR 233, including an equivalent scope of jurisdiction and regulation of at least the same activities.

“With the signing of this joint MOA, the Army looks forward to continuing our robust coordination with Florida DEP and deepening our relationship as we move forward towards a state-assumed 404 Program,” said R.D. James.