More states want power to approve wetlands development
In 2020, Florida became just the third state — and the first in decades — to take over management of a key federal Clean Water Act program. Now, state rather than federal officials decide whether companies can dredge and fill wetlands and waterways for projects ranging from mining to housing developments to roads and bridges.
Several other states are looking to follow suit. They say state agencies can issue permits more efficiently than federal bureaucrats, speeding up crucial projects while still following federal law.
“Our economy is based on natural resource extraction and development,” said Jason Brune, commissioner of the Alaska Department of Environmental Conservation, which is pursuing a takeover of the program. “Having that predictability and consistency in a permitting process is incredibly important.”
But environmental groups say state regulators are ill-prepared to take on this authority, claiming such efforts are thinly veiled attempts to rubberstamp development with little regard for its ecological damage.
And some states recently have backed off their attempts to assume permitting control of the federal Clean Water Act program, known as Section 404, citing prohibitive cost estimates and murky jurisdictional guidelines.
“We have the Clean Water Act because states screwed it up the first time around,” said Janette Brimmer, senior attorney with Earthjustice, a nonprofit environmental law group that has filed a lawsuit against Florida over the matter. “The only reason for these states to argue for local control is to have dirtier water.”
Some critics fear that Florida’s move could open the floodgates for more states to claim Section 404 authority, as Alaska, Minnesota and Nebraska are considering. But the hurdles that have mostly stymied such efforts for decades — steep costs, legal challenges and changing federal regulations — remain significant.
The outcome will determine who’s in charge of protecting crucial waterways and millions of acres of wetlands.
The U.S. Army Corps of Engineers is in charge of the Section
404 program’s day-to-day operations and permit decisions, while the U.S. Environmental Protection Agency develops criteria used in evaluating permit applications and reviews individual applications with the authority to deny them.
States have long had the option to assume control of the Section 404 program, along with other components of the Clean Water Act. Michigan took over permitting in 1984, and New Jersey followed suit a decade later. While many states have considered taking control in the decades since, none did until Florida in 2020.
“There are a lot of states that looked at the 404 program and decided the costs were going to be too expensive,” said Marla Stelk, executive director at the National Association of Wetland Managers, a nonprofit group that represents state and tribal regulators. “It requires a lot of extra staff and a lot of extra resources, but it can create a better, more efficient permitting process.”
Under the Trump administration, federal officials encouraged states to apply for control. Florida’s bid was approved just weeks before President Donald Trump left office. State officials hailed the move as a step toward local accountability and improved efficiency.
But critics say the transfer hasn’t gone well. Florida initially asserted it could take on the program without needing additional money, but state lawmakers this year approved the agency’s request to fund 33 new positions for water resource management.
“It’s been a complete s--show,” said Bonnie Malloy, a senior attorney with Earthjustice and a former staffer with the Florida Department of Environmental Protection. “The goal is, ‘How quickly can we say yes to developers?’”
The agency would not provide an official for an interview. Former state Rep. Holly Raschein, a Republican who sponsored legislation authorizing the transfer in 2018, defended the department’s management.
“I believe in DEP and our ability to oversee these matters,” she said. “We waded into this as the guinea pig for other states in the nation, and it doesn’t surprise me that we’re working this out. If people are expecting to have a perfect piece of public policy, good luck with that. DEP is right to ask for help if they need help.”
Meanwhile, Florida is defying federal court rulings and directions from the EPA about which waters require a permit: Although federal District Court judges in Arizona and New Mexico struck down a Trump-era rule limiting the streams and waters protected by the Clean Water Act, Florida is still using the old Trumpera definition. Officials there say they’re using that definition while they review the legal situation, according to
E&E News.
Environmental watchdogs say Florida’s defiance of the rule violates its obligation to run the Section 404 program at a standard that meets or exceeds federal protections. Earthjustice is leading a lawsuit claiming that Florida and the EPA made procedural mistakes in transferring authority, seeking to put the program back under federal purview.
In a statement, the EPA said that it still supports state efforts to pursue permitting control, commenting only that it would “continue to work with Florida to ensure consistency.”
Other states also are considering taking over the program. Alaska lawmakers voted in 2013 to give state regulators the authority to pursue control, but the state put that on hold when a drop in oil revenues shrank its budget. Gov. Mike Dunleavy, a Republican, is seeking to revive that effort.
He’s pressing legislators to approve $4.9 million to fund 28 positions at the Department of Environmental Conservation, which would begin a two-year process to take over Section 404.
“This is what my group of scientists thought would be needed,” said Brune, the department’s commissioner. “(That cost) is a drop in the bucket for a state that depends on natural resource extraction to show that we’re open for business.”