EPA decision to grant Florida wetland permitting authority draws scorn, legal threats

By John Haughey
The Center Square
December 18, 2020

An ad hoc coalition is vowing to challenge legally the transfer of federal wetlands permitting authority to Florida and to sponsor a constitutional amendment to deny the state carte blanche in environmental regulation.

“We are planning a constitutional amendment to block the destruction of wetlands in Florida,” Speak Up Wekiva Director Chuck O’Neal, who is spearheading the coalition of lawyers, advocates and political consultants, told the Orlando Sentinel. “This transfer to the developer/industry/commerce-funded state Legislature will be the final nail in the coffin for our waterways.”

U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced December 17 he has granted Florida the authority over wetland development. Republican leadership has pined for the authority since then-Gov. Rick Scott groused often about “duplicative rules” that wasted taxpayer dollars “and created confusion for everyone.”

Gov. Ron DeSantis formally submitted an official request Aug. 20 for the EPA to review and approve Florida’s proposal to assume administration of Section 404 of the Clean Water Act (CWA), which regulates the discharge of dredged or fill material into waters, including wetlands.

Activities regulated under the CWA’s Section 404 include fill for development; water resource projects, such as dams and levees; infrastructure development, such as highways and airports; and mining projects.

The Florida Department of Environmental Protection (FDEP) now can impose its own permitting process in overseeing discharge of dredged or fill materials into waters and wetlands, eliminating U.S. Army Corps of Engineers’ oversight in a swath of projects, including the decades-long Everglades restoration program Florida is spending $2.5 billion over the next four years to accelerate.

“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,” Wheeler said. “By taking over this permit program, Florida will be able to integrate its dredging and fill permitting with their traditional water quality and monitoring programs.”

Florida joins Michigan and New Jersey as the only states with Section 404 permitting authority. It is home to about one-fifth of the nation’s wetlands.

“Florida continues to be a pioneer of environmental protection. This is a historic moment for our agency and our state,” FDEP Secretary Noah Valenstein said. “Our waters and wetlands are critical to our economy and way of life in Florida. As such, it is important for the state to take the lead in their protection.”

FDEP Deputy Secretary of Regulatory Programs John Truitt said the agency has more than 200 experts already managing and enforcing Section 404 permitting standards.

“Our staff possesses the technical expertise necessary to run the 404 program effectively, offering increased consistency and efficiency to our stakeholders, and increased protections for Florida’s environment,” Truitt said.

The announcement drew immediate, heated fire from critics who allege the move was made ahead of President-elect Joe Biden’s inauguration at the behest of developers.

“Those concerned with Florida’s environment have no reason to believe the state of Florida is prepared to manage critical wetlands permitting in a transparent, apolitical manner,” said Florida Agriculture Commissioner Nikki Fried, Florida’s only statewide-elected Democrat. “This action sets a dangerous precedent that may lead to reduced protection of Florida’s wetlands and other surface waters.”

Fried said the EPA’s permitting process “is more stringent than the state’s in reducing wetlands impacts,” and the FDEP “lacks the staff, resources, track record, budget, and personnel to successfully manage” Section 404 permitting.

“The vast majority of thousands of public comments from Floridians were in opposition to this decision, as are numerous environmental conservation groups,” Fried said