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ELC Opposes Florida’s Assumption of Permitting Responsibility Under Section 404 of the Federal Clean Water Act

On November 2, 2020, Everglades Law Center, along with the National Parks Conservation Association and Sustainable Palm Beach County, submitted comments opposing Florida’s proposal to assume responsibility under the federal Clean Water Act for reviewing and issuing permits for the discharge of dredged or fill materials in waters of the United States.  

On behalf of the Everglades Law Center, the National Parks Conservation Association, and Sustainable Palm Beach County, we are submitting these comments to your office regarding the Florida Department of Environmental Protection’s (“FDEP”) request to assume administration of the Clean Water Act (“CWA”) Section 404 Program. … We focus on specific instances in which the federal CWA Section 404 Program, together with required National Environmental Policy Act (“NEPA”) analyses, have been critical to protecting the Everglades ecosystem. We emphasize that our specific experience as part of our work related to Everglades restoration has highlighted how a federal Section 404 Program, in concert with NEPA processes, has mattered (1) because of the specific requirements of NEPA, (2) because of the public decision-making processes that NEPA enables, and (3) because of critical expert federal oversight of state-led projects with significant environmental impacts.

November 2, 2020 letter from ELC, NPCA, and Sustainable Palm Beach County

In all but two states – Minnesota and New Jersey – the federal Army Corps of Engineers, the Environmental Protection Agency, the United States Fish and Wildlife Service, and the National Marine Fisheries Service coordinate to ensure that permits allowing these discharges protect both our nation’s waters and wetlands and the species that depend on those areas for feeding, nursery habitat, and other critical life activities. Florida’s proposal to take over the permitting process would remove critical protections that are part of the federal process. 

And without a federal connection through the Army Corps, the National Environmental Policy Act’s procedural protections won’t apply, said Ansley Samson, general counsel for the Everglades Law Center. Those procedural protections help ensure sound government decision-making and provide avenues for public comment, but the public analysis under the state-led program isn’t as robust on major projects as NEPA, she said.

Michael Phillis, “What To Expect From Florida’s New Water Permitting Powers,” Law360 (December 22, 2020)

EPA approved Florida’s proposal in December 2020, a decision that has been challenged in federal court by environmental groups.