Florida now can issue wetland construction permits. Here's how that affects developers.
By Jack Witthaus
Orlando Business Journal
Published: Dec 29, 2020

A change at the state level will allow developers to seek approvals to build in protected wetlands in less time and at faster rates — a decision that has ignited outrage among environmental groups.

The U.S. Environmental Protection Agency on Dec. 17 gave the state of Florida the power to issue construction permits in its wetlands — areas the EPA compares to rain forests and coral reefs in terms of ecological importance. However, the ruling may not make a big difference to Florida developers despite concerns that environmental groups have with the state's control over these permits, according to Jonathan Huels, a shareholder for Orlando-based multidiscipline business law firm Lowndes. Huels is familiar with the Section 404 permitting process as he's been part of multiple consultant teams that require these permits.

The EPA's decision gives the state Section 404 permitting authority, meaning Florida now oversees some dredging and filling of its wetlands. Previously, the U.S. Army Corps of Engineers performed the permitting process, which some developers felt wasn't efficient since it typically took more than a year.

Here's more from Huels who explains how this decision will impact real estate development in Florida wetlands.

Will this have any impact on Florida?

Yes, the state’s assumption of the Section 404 dredge and fill permitting program will have an immediate and direct impact on Florida by shifting the regulatory authority from the Army Corps of Engineers to the Florida Department of Environmental Protection for developments that propose impacts to jurisdictional wetlands assumed under the program. It is anticipated that the state’s assumption will result in a more efficient and timely permitting process by eliminating duplicative review requirements found in the current regulatory framework. This should result in the reduction in the review and processing timelines for Section 404 permit applications.

What does this mean for developers?

Starting in mid-January, developers with projects that fall within the purview of Section 404 program should see reduced fees, streamlined application materials, consistency in application of review criteria and shortened processing timeframes for state environmental resource and Section 404 permits. However, it should be noted the state’s assumption does not include all of the jurisdictional waters in ... the state, in general. The Army Corps of Engineers will retain jurisdiction of the Section 404 program for projects that propose any dredge and fill of navigable waters and adjacent wetlands that are or could be used for interstate or foreign commerce, including all the state's tidal waters. For developments where the Army Corps has retained jurisdiction, there will be no change to the current permitting framework and associated lengthy review timeframes.

Have you already heard from developers interested developing on wetlands due to the state’s future assumption?

Candidly, no. I don’t anticipate the state’s assumption would have a great impact on a developer’s decision on site design and/or the scope of proposed wetland impacts even if there are efficiencies created by the state’s assumption. The resulting process will still require mitigation for impacts and present regulatory hoops to jump through.