State of Florida given authority to administer parts of Clean Water Act

Posted 12/18/20

While some are celebrating a decision that transfers power to enforce portions of the Clean Water Act from the federal government...

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State of Florida given authority to administer parts of Clean Water Act

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While some are celebrating a decision that transfers power to enforce portions of the Clean Water Act from the federal government to the State of Florida, others fear it will lead to harm to fragile wetland ecosystems.

Section 404 of the Clean Water Act (CWA) requires a permit before dredged or fill material may be placed in wetlands. Section 404(g) of the CWA gives states and tribes the option of taking over the permitting responsibility and administration, instead of the U.S. Army Corps of Engineers.

EarthJustice has opposed this change, calling it a plan that would make it easier for developers to fill in wetlands.

“The Florida Department of Environmental Protection doesn’t have the proper capacity to take over the wetlands permitting that has been run by the U.S. Army Corps of Engineers for decades. It can’t even manage to enforce the environmental laws already under its purview,” said Tania Galloni, managing attorney for the Florida office of the nonprofit law firm Earthjustice earlier this year.

In a July 9 letter to the Florida Department of Environmental Protection, Galloni protested the change on behalf of the Florida Wildlife Federation, The Conservancy of Southwest Florida, Miami Waterkeeper, St. Johns Riverkeeper and the Center for Biological Diversity.

“On behalf of its more than 60 member organizations, the Everglades Coalition identified a number of concerns regarding state assumption and the risk to Florida’s remaining wetlands, which are critical to cleansing water, recharging groundwater, providing fish and wildlife habitat and storm resiliency. The coalition concluded that ‘in the face of increased growth and development, the protection and restoration of the Greater Everglades — an ecosystem largely comprised of wetland habitats — is better accomplished by maintaining the existing oversight from federal agencies’,” she wrote.

In an April 18 letter to the U.S. Army Corps of Engineers, representatives of Miami Waterkeeper, Apalachicola Riverkeeper, Matanzas Riverkeeper, Collier County Waterkeeper, Calusa Waterkeeper, St. Johns River Waterkeeper, Tampa Bay Waterkeeper, Suncoast Waterkeeper, Suwannee Riverkeeper, Lake Worth Waterkeeper and Emerald Coastkeeper, also opposed giving the state this authority.

“CWA Section 404 requires permits for the discharge of dredge and fill material into waters of the United States, including wetlands. Florida has particularly fragile and critical areas that are regulated by Section 404 dredge and fill permits, and which require the highest level of review and scrutiny. We believe that the federal government is best able to conduct this review given their historic jurisdiction and agency expertise in this area,” they wrote.

In a Dec. 17 letter to the EPA, Billy Cypress, chairman of the Miccosukee Tribe, also opposed letting the state assume the CWA Section 404 authority.

“The Miccosukee’s cultural identity and way of life is dependent upon the natural Everglades. The entire way of life of the tribe and its members, including their cultural, religious, economic and historical identity, is based in the Everglades and upon the preservation of the Everglades in its natural state,” he wrote.

In that letter, Cypress asked the EPA to delay the decision to allow more time to address the tribe’s concerns.

On Dec. 18, the U.S. Environmental Protection Agency (EPA) announced that the State of Florida is the first state in more than 25 years to apply for and receive approval to implement a Clean Water Act (CWA) Section 404 program, joining Michigan and New Jersey as the only states in the country with such authority. This action formally transferred permitting authority under CWA Section 404 from the U.S. Army Corps of Engineers (Corps) to the State of Florida for a broad range of water resources. This action allows the state to evaluate and issue permits under the CWA.

“A considerable amount of effort has gone into Florida’s assumption of the Clean Water Act 404 program,” said EPA Administrator Andrew Wheeler. “Federal authorities don’t delegate this type of permit often, but Florida has, beyond question, one of the greatest environmental records of any state, and I couldn’t be happier that Florida has shown it can meet the strict national standards EPA sets to protect human health and the environment.”

“Florida continues to be a pioneer of environmental protection. This is a historic moment for our agency and our state,” said Florida Deparment of Environmental Protection (FDEP) Secretary Noah Valenstein. “We appreciate EPA’s stringent, public review and approval of DEP’s assumption of this program. Our waters and wetlands are critical to our economy and way of life in Florida. As such, it is important for the state to be in charge and take the lead in their protection. We are pleased that with the assumption, Florida scientists and permitters will now be accountable for state and federal wetlands permits. DEP staff know the state’s resources best and have the expertise to ensure their protection.”

“Florida’s environment, our waterways and our wetlands are what make the state unique. DEP and our partners have worked diligently to develop science-based solutions to key environmental issues, and it’s crucial that these solutions are implemented in a timely and efficient fashion,” said Florida Chief Science Officer Dr. Tom Frazer. “The State 404 program will ensure the prioritization of critical environmental infrastructure projects and guarantee that local environmental experts with a vested interest in and intimate knowledge of Florida’s natural resources are at the helm.”

“NAHB praises EPA’s authorization of the Florida Department of Environmental Protection (FDEP) to administer the CWA’s Section 404 program as Congress envisioned. Allowing FDEP to issue dredge and fill permits for impacts to both federal and state waters streamlines the process and improves resource protection. It also brings more certainty to the cumbersome and lengthy permitting process, which is expected to reduce project delays and costs for prospective home buyers,” said National Association of Home Builders Chairman Chuck Fowke.

“This is a positive step forward for builders in Florida. The federal process can be burdensome and lead to frequent and significant delays adding time and money to the building process. By turning this process over to the state, we expect a much more consistent and improved way to get 404 permits approved in a timely manner,” said Florida Home Builders Association CEO Rusty Payton.

The change was also supported by the Everglades Foundation. “The State of Florida’s assumption of Section 404 permitting should enable Everglades restoration to proceed with the sense of urgency it deserves while maintaining the high level of review and protection required by the Clean Water Act,” said Everglades Foundation CEO Eric Eikenberg.

Emails to the EPA can be sent to 404assumption-fl@epa.gov.

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