Got Permits?

All work that is to be conducted in, on, over, or directly adjacent to a body of water is potentially jurisdictional and is subject to agency authorization, or permits. The world of agency permits changes constantly. Things that were at one time difficult may be simpler now and inversely things that were once simple can be extremely complicated at this time. Federal, state and local municipal permits are the basic permits required in most counties in Florida. This piece of writing is specifically about federal agency permits for work on projects that are jurisdictional.

Every owner or developer who desires to improve their water front property has had to endure the permit process. Time was when a marine contractor could look at a water front single family lot, do some basic math and offer the owner a proposal for constructing a dock. Times have changed.

The federal agency most directly involved with authorizing jurisdictional projects is the U.S. Army Corps of Engineers (COE). At one time in Florida the COE had delegated the authorization of single family docks to the State of Florida Department of Environmental Protection (DEP). Proposed docks that met certain criteria were authorized by DEP for the state portion and by the delegation from the COE they issued the federal level authorization under a State Programmatic General Permit (SPGP). This delegation streamlined the process making for one stop shopping for the state and federal authorizations. From that point the marine contractor typically only had to produce engineered drawings showing the local municipality what was proposed to be built along with the federal and state agency authorizations and the a construction permit was issued. There were some minor differences in the sequence depending on which municipal government was responsible for the life and safety aspects of the project but the process was mostly the same around the state.

The mandates for protection of endangered and or threatened species and the expansion of the listing of those species has created a circumstance where the COE has essentially withdrawn the SPGP that was issued to the state. One result is that all permit applications for jurisdictional work now has to route through federal consulting agencies for review and a biological opinion that the work will not harm a species has to be rendered before the permit process can progress. This level of review being done for all applications has severely overloaded the federal consulting agencies as well as the COE. Some projects no more complicated than simple permit extension requests for replacement seawalls are being delayed for months while the federal consulting agencies work through their overload of project reviews. Much of this work load was previously accomplished through delegation via the SPGP and where that was not applicable the local COE office would conduct a review and typically issue standard construction guidelines as conditions within the federal permit. Current directives to the COE offices require that all jurisdictional projects be reviewed by the federal consulting agencies prohibiting the COE from making those determinations on their own.

Theories for why this has come to be abound. The factual reality is that this is an issue that will have to be resolved at the federal level. From the consultants perspective this means that it is impossible to accurately predict timelines for clients. Experience over the last two years has shown that state agency permits on projects can be fully reviewed and issued up to a year in advance of the federal agency permits.

Florida Marine Contractors Association (FMCA) has been working with the COE and their consulting agencies to determine what if anything can be done to fix the delays. So far it appears as if we are in for a rough patch in the permit side of the business.

Chester Young