[Federal Register Volume 85, Number 180 (Wednesday, September 16, 2020)]
[Notices]
[Pages 57853-57856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19881]



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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2018-0640; FRL-10014-54-Region 4]


 Florida's Request To Assume Administration of a Clean Water Act 
Section 404 Program

AGENCY: Environmental Protection Agency.

ACTION: Notice and request for comments.

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SUMMARY: The Clean Water Act (CWA) established the Section 404 program, 
under which the U.S. Army Corps of Engineers (Corps) may issue permits 
for the discharge of dredged or fill material into ``waters of the 
United States,'' as identified in the CWA. Section 404(g)(1) of the CWA 
authorizes states and tribes to administer their own permit program for 
the discharge of dredged or fill material into navigable waters, other 
than those waters that the CWA reserves as subject to Corps 
jurisdiction. On August 20, 2020, the Environmental Protection Agency 
(EPA) received from the Governor of the State of Florida, a complete 
program submission for regulating discharges of dredged or fill 
material into waters within the jurisdiction of the State in accordance 
with the CWA. Pursuant to CWA Section 404(h) and EPA's implementing 
regulations, EPA will hold public hearings and is opening a 45-day 
comment period. EPA is also initiating a programmatic consultation 
under Section 106 of the National Historic Preservation Act (NHPA) and 
is soliciting comments pursuant to NHPA implementing regulations during 
the 45-day comment period.

DATES: Comments on EPA's decision to approve or disapprove under CWA 
Section 404 must be received on or before November 2, 2020. Comments 
associated with the consultation under section 106 of the NHPA may also 
be submitted on or before November 2, 2020. EPA intends to approve or 
disapprove the State of Florida's request to assume administration of a 
CWA Section 404 program by December 17, 2020.

ADDRESSES: You may send comments on both actions (Florida's request to 
assume a CWA Section 404 program and EPA's consultation under NHPA 
section 106), identified by Docket ID No. EPA-HQ-OW-2018-0640, by any 
of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments and accessing the docket and materials related to 
this notice.
     Email: [email protected].
     Mail: Mr. Kelly Laycock, Oceans, Wetlands and Streams 
Protection Branch, USEPA Region 4, 61 Forsyth St. SW, Atlanta, GA 
30303.
    Instructions: All submissions received must include the Docket ID 
No. EPA-HQ-OW-2018-0640 for these actions. Comments received may be 
posted without change to https://www.regulations.gov/, including any 
personal information provided.
    Out of an abundance of caution for members of the public and our 
staff, the EPA Docket Center and Reading Room are open by appointment 
only, to reduce the risk of transmitting COVID-19. Our Docket Center 
staff will continue to provide remote customer service via email, 
phone, and webform. We encourage the public to submit comments via 
https://www.regulations.gov/ or email at [email protected], as 
there may be a delay in processing mail and faxes. Hand deliveries and 
couriers may be received by scheduled appointment only. For further 
information on the EPA Docket Center services and the current status, 
please visit us online at https://www.epa.gov/dockets.
    The virtual hearings will be held on October 21, 2020 and October 
27, 2020. The hearing held on October 21, 2020 will convene at 9:00 
a.m. and will conclude no later than 12:00 p.m. EDT. The hearing held 
on October 27, 2020 will convene at 5:00 p.m. EDT and will conclude not 
later than 8:00 p.m. EDT. For information about registration for these 
virtual public hearings, please see https://www.epa.gov/aboutepa/about-epa-region-4-southeast.

FOR FURTHER INFORMATION CONTACT: Mr. Kelly Laycock, Oceans, Wetlands 
and Streams Protection Branch, USEPA Region 4, 61 Forsyth St. SW, 
Atlanta, GA 30303; (404) 562-9262; email address: [email protected].

SUPPLEMENTARY INFORMATION: The State's submission may be read online 
through the Federal eRulemaking Portal, Docket No. EPA-HQ-OW-2018-0640, 
the EPA's Docket Center, available at https://www.regulations.gov. The 
State's submission is also on file and may be inspected and copied (for 
a per page charge) at the EPA Docket Center Reading Room located at WJC 
West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 
20004. Due to COVID-19, access to the EPA Docket Center Reading Room 
will be allowed by appointment only. Procedures to make an appointment 
to visit the EPA Docket Center Reading Room can be found at https://www.epa.gov/dockets/epa-docket-center-reading-room.

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments?
    C. How can I participate in the virtual public hearing?
II. Background
    A. Clean Water Act Section 404(g)
    B. National Historic Preservation Act Section 106 Consultation
    C. Endangered Species Act Consultation

I. General Information

A. Does this action apply to me?

    States and tribes that have assumed or are considering assuming the 
administration of a CWA Section 404 dredged or fill material permitting 
program as well as regulated entities and members of the public in the 
State of Florida may be interested in providing input on the issues 
described in this document.
    Tribal and State Historic Preservation Offices as well as members 
of the public with knowledge of or interest in the identification (and 
location) of historic properties in the State of Florida, the effects 
of discharges from dredged or fill activities into waters of the United 
States on these historic properties, or ways to mitigate or avoid 
adverse effects of such discharges may be interested in commenting on 
EPA's consultation on this action under section 106 of the NHPA.

B. What should I consider as I prepare my comments?

    Comments may consider whether the state program meets the 
requirements of Section 404(g) of the CWA and its implementing 
regulations. Comments may also consider the impacts of EPA's approval 
or disapproval of Florida's request on historic sites located within 
the State of Florida in accordance with section 106 of the NHPA.
    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2018-
0640, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. EPA may publish 
any comment received to its public docket. Do not submit to EPA's 
docket any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute.
    Multimedia submissions (audio, video, etc.) must be accompanied by 
a written comment. The written comment

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is considered the official comment and should include discussion of all 
points you wish to make. EPA will generally not consider comments or 
comment contents located outside of the primary submission (i.e. on the 
web, cloud, or other file sharing system). For additional submission 
methods, the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    The EPA Docket Center and Reading Room are open by appointment 
only, to reduce the risk of transmitting COVID-19. Our Docket Center 
staff will continue to provide remote customer service via email, 
phone, and webform. We encourage the public to submit comments via 
https://www.regulations.gov/ as there may be a delay in processing mail 
and faxes. Hand deliveries or couriers will be received by scheduled 
appointment only. For further information and updates on EPA Docket 
Center services, please visit us online at https://www.epa.gov/dockets.
    EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.

C. How can I participate in the virtual public hearing?

    EPA is deviating from its typical approach because the President 
has declared a national emergency. Because of current CDC 
recommendations, as well as state and local orders for social 
distancing to limit the spread of COVID-19, EPA cannot hold in-person 
public meetings at this time.
    The virtual hearings will be held on October 21, 2020 and October 
27, 2020. The hearing held on October 21, 2020 will convene at 9:00 
a.m. and will conclude no later than 12:00 p.m. EDT. The hearing held 
on October 27, 2020 will convene at 5:00 p.m. EDT and will conclude not 
later than 8:00 p.m. EDT.
    EPA will begin pre-registering speakers and listen-only attendees 
for the hearings upon publication of this notice in the Federal 
Register. For a link to the on-line registration page, please visit 
https://www.epa.gov/aboutepa/about-epa-region-4-southeast. Immediately 
following registration, you will receive an email confirming your 
registration and providing a unique link to the webinar. Speakers will 
be signed up to speak in the order that their registration is received. 
The last day to pre-register to speak at a hearing will be October 9, 
2020. On October 20, 2020, EPA will post a general agenda for the 
hearing that will list the order of pre-registered speakers and their 
approximate timeslots at: https://www.epa.gov/aboutepa/about-epa-region-4-southeast. Please note that timeslots will be estimated and 
speakers are encouraged to join the webinar at least 15 minutes prior 
to the start of their estimated speaking time.
    EPA will make every effort to follow the schedule as closely as 
possible on the day of the hearing; however, please plan for the 
hearings to run either ahead of schedule or behind schedule.
    Oral comments shall be limited to no more than five (5) minutes. 
EPA recommends that commenters prepare their oral statement in advance 
to ensure it can be completed within five minutes. EPA also recommends 
that commenters also submit the text of their oral comments (with any 
relevant supplementary information) as written comments to the 
rulemaking docket. EPA encourages commenters to provide EPA with a copy 
of their oral testimony electronically (via email) by emailing it to 
Mr. Kelly Laycock at [email protected].
    EPA may ask clarifying questions during the oral testimony but will 
not respond to the comments at that time. Written statements and 
supporting information submitted during the comment period will be 
considered with the same weight as oral comments and supporting 
information presented at the public hearing. The proceedings of the 
hearings will be recorded. After the public hearing, verbatim 
transcripts of the sessions will be included in the rulemaking docket.
    Please note that any updates made to any aspect of the hearing will 
be posted online at https://www.epa.gov/aboutepa/about-epa-region-4-southeast. While EPA expects the hearing to go forward as set forth 
above, please monitor our website to determine if there are any 
updates. EPA does not intend to publish a document in the Federal 
Register announcing updates.
    To request services for special accommodations, please pre-register 
for the hearing with Mr. Kelly Laycock at [email protected] and 
describe your needs by October 7, 2020. EPA will seek to arrange 
special accommodations as needed to support hearing participation if 
given advanced notice.

II. Background

A. Clean Water Act Section 404(g)

    The CWA established the Section 404 program, under which the 
Secretary of the Army, acting through the Chief of Engineers of the 
Corps, may issue permits for the discharge of dredged or fill material 
into waters of the United States as identified in the CWA. Section 
404(g)(1) of the CWA provides states and tribes the option of 
submitting to EPA a request to assume administration of a CWA Section 
404 program in certain waters within state or tribal jurisdiction.
    The regulations establishing the requirements for the approval of 
state or tribal programs under section 404 of the CWA were published in 
the Federal Register, at 53 FR 20764, (June 6, 1988) (40 CFR parts 232 
and 233), and can be accessed at https://www.epa.gov/cwa404g/statutory-and-regulatory-requirements-assumption-under-cwa-section-404. ``State 
regulated waters'' are defined in 40 CFR 232.2 as ``those waters of the 
United States in which the Corps suspends the issuance of Section 404 
permits upon approval of a state's section 404 permit program by the 
Administrator under section 404(h). The program cannot be transferred 
for those waters which are presently used, or are susceptible to use in 
their natural condition or by reasonable improvement as a means to 
transport interstate or foreign commerce shoreward to their ordinary 
high water mark, including all waters which are subject to the ebb and 
flow of the tide shoreward to the high tide line, including wetlands 
adjacent thereto.'' The Corps retains CWA Section 404 permitting 
authority over waters of the United States within ``Indian country'' as 
that term is defined at 18 U.S.C. 1151, unless a tribe has assumed the 
404 program within Indian country. See 40 CFR 233.1(b).
    A state application to administer a Section 404 program must 
include the following: (a) A letter from the Governor of the state 
requesting program approval; (b) a complete program description as set 
forth in 40 CFR 233.11; (c) an Attorney General's statement or a 
statement from the attorney for those state or interstate agencies 
which have independent legal counsel, as set forth in 40 CFR 233.12; 
(d) a Memorandum of Agreement with the EPA Regional Administrator, as 
set forth in 40 CFR 233.13; (e) a Memorandum of Agreement with the 
Secretary of the Army, as set forth in 40 CFR 233.14; and (f) copies of 
all applicable state statutes and regulations, including those 
governing applicable

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state administrative procedures. 40 CFR 233.10.
    EPA has reviewed the State of Florida's program submission and 
consistent with 40 CFR 233.15 has determined that it is a complete 
request for State program approval that meets the submittal 
requirements of 40 CFR 233.10. The Governor's request proposes that 
FDEP administer a permit program for regulated activities in waters 
regulated by the State under section 404(g)(1), as identified in the 
Memorandum of Agreement with the Secretary of the Army, in accordance 
with section 404 of the CWA. The main statutory and regulatory 
authorities to administer and enforce the State 404 program can 
currently be found in the State's submission to assume the program and 
are available on FDEP's web page at https://floridadep.gov/water/water/content/water-resource-management-rules.
    The State 404 program would provide for the issuance of general 
permits and individual permits. The State has adopted 38 general 
permits which are listed in 62-331 F.S. as part of their package 
submittal. A complete description of the individual permit process and 
the standards for granting of an individual permit are found at 62-331 
F.S. In addition, there are standard requirements for all regulated 
activities in State-assumed waters. No permit shall be issued in 
certain specified circumstances, including when the permit does not 
comply with the requirements of the CWA or implementing regulations, 
including the CWA Section 404(b)(1) Guidelines. 40 CFR 233.20. 
Florida's laws outline a number of requirements applicable to State 404 
permits, including that ``no dredge or fill activity shall be permitted 
if there is a practicable alternative to the proposed activity which 
would have less adverse impact on the aquatic ecosystem, so long as the 
alternative does not have other significant adverse environmental 
consequences,'' and an individual permit cannot be issued if it 
``[c]auses or contributes to violations of any applicable State water 
quality standard, except when temporarily within a mixing zone proposed 
by the applicant and approved . . .'' by FDEP at 62-331.053 F.S.
    Currently, Florida operates the Environmental Resource Permit 
program (ERP), which regulates the disposal of dredged or fill material 
into waters of the State under State law. State-regulated activities 
under ERP that go beyond the purview of the CWA are not subject to EPA 
approval or oversight under 40 CFR part 233.
    The Memorandum of Agreement between FDEP and the Secretary of the 
Army, available in the docket for this action, identifies procedures 
for the transfer of all pending permit applications for discharges into 
the waters assumed by the State. 40 CFR 233.14. Pursuant to the 
Memorandum of Agreement, existing Section 404 permits already issued by 
the Corps as of the effective date of State assumption will remain with 
the Corps during the already approved lifespan of that permit.
    The Regional Administrator is required to approve a state request 
to assume the Section 404 program unless the state program does not 
meet the requirements of Section 404(h) of the CWA and its implementing 
regulations. Among other authorities, the state must have: (1) Adequate 
authority to issue permits which comply with all pertinent requirements 
of the CWA, including but not limited to, the Section 404(b)(1) 
Guidelines, and which may be issued for fixed terms not to exceed 5 
years; (2) adequate authority, including civil and criminal penalties, 
to abate violations of the permit or permit program; and (3) authority 
to ensure that the Administrator, the public, and any other affected 
state or tribe are given notice of each permit application and that the 
public and affected states and tribes are provided an opportunity for 
public hearing before a ruling on each such application. 33 U.S.C. 
1344(h)(1).
    The procedures for EPA's review and approval or disapproval of a 
state Section 404 program are outlined in 40 CFR 233.15. In summary, 
once a state submits an assumption package that is complete, a 120-day 
statutory review period commences, which may be extended by mutual 
agreement of the state and EPA. EPA shall provide copies of a complete 
assumption package within 10 days of receipt to the Corps, the National 
Marine Fisheries Service (NMFS), and the United States Fish and 
Wildlife Service (USFWS) for review and comment. Within 90 days of 
EPA's receipt of a complete program submission, the Corps, FWS, and 
NMFS shall submit to EPA any comments on the state program. EPA shall 
publish notice of the state's application in the Federal Register, 
state newspapers, and via mail to interested parties. EPA shall provide 
for a public comment period of not less than 45 days as well as a 
public hearing not less than 30 days after such notice is published in 
the Federal Register. EPA shall also provide notice of an opportunity 
to consult to federally recognized Indian tribes in the state.
    Within 120 days of receipt of a complete program submission (unless 
EPA and the state extend the statutory review period), EPA shall 
approve or disapprove the program based on whether the state's program 
fulfills the requirements of the Act and 40 CFR part 233, taking into 
consideration all comments received. EPA will prepare a summary of 
significant comments received and responses to these comments, as well 
as respond individually to comments received from the Corps, USFWS, and 
NMFS.
    If EPA approves Florida's program, EPA will notify the State and 
the Corps and publish notice in the Federal Register. Transfer of the 
program to the State is not effective until this notice is published. 
EPA may only disapprove the State's program if it is inconsistent with 
the requirements of the CWA and 40 CFR part 233. If EPA disapproves the 
State's program it shall notify the State of the reasons for the 
disapproval and of any revisions or modifications to the State's 
program which are necessary to obtain approval. If the State resubmits 
a program submission remedying the identified problem areas, the 
approval procedure and statutory review period shall begin upon receipt 
of the revised submission. EPA maintains oversight of State-issued 
permits pursuant to 40 CFR 233.50.
    If EPA approves this program, EPA will also codify the approved 
program in 40 CFR 233 subpart H.

B. National Historic Preservation Act Section 106 Consultation

    In accordance with 36 CFR 800.2(d), EPA is providing information 
and seeking comment on EPA's potential approval of Florida's request to 
assume a CWA Section 404 program and any potential effects of such 
approval on historic properties. The National Historic Preservation Act 
of 1966, as amended, (NHPA) establishes historic preservation as a 
federal agency policy and provides for the identification and 
protection of historic properties and resources. Section 106 of the 
NHPA requires federal agencies to take into account the effects of 
their undertakings on historic properties that are listed or eligible 
for listing on the National Register of Historic Places and provide the 
Advisory Council on Historic Preservation (ACHP) a reasonable 
opportunity to comment with regard to such undertakings. The approval 
of the State of Florida's request to assume the CWA Section 404 program 
would be an undertaking pursuant to 36 CFR 800.16(y), and therefore, in 
accordance with Section 106 of the NHPA and the ACHP's implementing 
regulations at 36 CFR part 800, EPA has initiated consultation 
regarding this undertaking.

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EPA has invited the ACHP, FDEP, the State Historic Preservation Officer 
(SHPO), and Indian tribes with interests in the State of Florida to 
participate as consulting parties.
    The State's administration of the Section 404 program and its 
issuance of permits over time has the potential to affect historic 
properties, including cultural resources or historic properties of 
religious and cultural significance. FDEP and the SHPO have entered 
into an Operating Agreement which sets forth a process to identify 
historic properties that may be impacted by Florida's issuance of 
Section 404 permits, and to develop recommendations for resolving 
adverse effects. As discussed in the State's Operating Agreement, such 
effects could potentially include, but are not limited to, the 
following:
    i. Physical destruction of or damage to all or part of the 
property, including inundation;
    ii. Alteration of a property, including restoration, 
rehabilitation, repair, maintenance, stabilization, hazardous material 
remediation, and provision of handicapped access;
    iii. Change of the character of the property's use or of physical 
features within the property's setting, or impacts to the landscape 
that contribute to its historic significance;
    iv. Introduction of visual, atmospheric or audible elements that 
diminish the integrity of the property's significant historic features; 
and
    v. Neglect of a property which causes its deterioration, except 
where such neglect and deterioration are recognized qualities of a 
property of religious and cultural significance to an Indian Tribe.
    Pursuant to the Operating Agreement, if the parties cannot reach 
agreement on the determination or resolution of effects, they may 
forward any outstanding issues to EPA for decision-making consistent 
with EPA's permitting review authorities under 40 CFR 233.50. The 
Operating Agreement provides comprehensive procedures for assessing the 
effects of Florida's 404 program on historic properties and therefore 
will considerably inform EPA's Section 106 consultation.
    EPA solicits comments on this undertaking and any potential effects 
on historic properties at the Federal eRulemaking Portal, Docket No. 
EPA-HQ-OW-2018-0640. The comment period closes November 2, 2020.

C. Endangered Species Act Consultation

    The Endangered Species Act (ESA) Section 7 directs each federal 
agency to ensure, in consultation with the USFWS and NMFS, that ``any 
action authorized, funded, or carried out by such agency . . . is not 
likely to jeopardize the continued existence of'' listed species or 
result in the destruction or adverse modification of designated 
critical habitat. 16 U.S.C. 1536(a)(2). EPA views consultation under 
ESA Section 7 to be required if a decision to approve a state or tribal 
CWA Section 404 program may affect ESA-listed species or designated 
critical habitat. EPA's position is set forth in a memorandum issued by 
David P. Ross, Assistant Administrator for the Office of Water, dated 
August 27, 2020, following the consideration of comments received 
during a public participation process that is outside of the scope of 
this notice. Accordingly, EPA is conducting ESA Section 7 consultation 
during the Agency's review of the State of Florida's request to assume 
administration of a CWA Section 404 program because EPA has determined 
that the Agency's potential approval of the program may affect ESA-
listed species or designated critical habitat. See https://www.epa.gov/cwa404g/consultation-cwa-section-404-program-requests-endangered-species-act-and-national-historic for more information regarding EPA's 
position on ESA Section 7 consultation under CWA Section 404(g).

    Dated: September 2, 2020.
Mary Walker,
Regional Administrator, EPA Region 4.
[FR Doc. 2020-19881 Filed 9-15-20; 8:45 am]
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