GrayRobinson Environmental and Sustainability Law Team: What Happens with Section 404 Permitting Now?

February 19, 2024

By: John Truitt

On February 15, 2024, a circuit court judge in the District of Columbia vacated Florida’s assumption of Section 404 permitting under the Clean Water Act and reverted control of Section 404 permitting in Florida to the U.S. Army Corps of Engineers (Corps). The impacts of this vacatur are wide-ranging and call into question several other federal programs. 

Who should be interested?

Anyone that has a Section 404 permit currently pending with the Florida Department of Environmental Protection (DEP) is subject to this order. Simply, the order means DEP is no longer allowed to act on your permit application and must forward it to the Corps for processing. This change in processing will increase processing time and cause unnecessary delays like many experienced during the transition of the Section 404 program to the state.

What is the basis of the decision?

Part of federal permitting requires a review of endangered species, specifically under the Endangered Species Act. For Section 404, Florida followed prior precedent using a programmatic biological opinion, which means a plan was developed to deal with all endangered species throughout the state during permit review with consultation with the Florida Fish and Wildlife Conservation Commission and the U.S. Fish and Wildlife Service. This programmatic review is used in other areas, such as Rule 316(b) under the Clean Water Act regarding entrainment devices for power plants.

What will happen now?

The current order allows the state to request a stay, within 10 days, on the vacatur to permits that may affect endangered species. The order also contradicts a second circuit case regarding endangered species under the 316(b) regulations mentioned above. Currently, all Section 404 permits are on hold unless and until the state files a motion to limit the stay. 


Contact GrayRobinson Shareholder John Truitt or a member of the Environmental and Sustainability Law Team.