Trump-era wetlands rule
Meanwhile, the EPA is in a dispute with Florida because it is still operating under a Trump administration definition of wetlands that was struck down by a federal judge in a case out of Arizona last August.
“So the entire country is back to what the rule was before, except for Florida, which keeps applying the legal definition and issuing determinations that no permit is required,” Galloni said. “Florida is functioning under a definition of wetlands that excludes lots of wetland under the old (and reinstated) law.”
The problem, as Galloni sees it is this: “If Florida is not applying the right rule we can’t know how many ‘no permit’ decisions are legitimate. When Florida took over the 404 application process, the Trump rule was in effect. Since the court invalidated it, Florida hasn’t changed that.”
The EPA has warned Florida that any permits it issues or any decision that a permit is not required using the Trump rule violates the Clean Water Act and could lead to enforcement action.
But a spokeswoman for Florida’s DEP says the agency still follows the Trump rule because it says it hasn’t been vacated nationwide and the definition of wetlands is unsettled.
“The federal definition of ‘Waters of the United States’ remains in flux,” DEP’s Dee Ann Miller said. The EPA is still reviewing comments on new rules and the U.S. Supreme Court will take up the Arizona case, she said. Miller also said Florida has up to a year to make any necessary rule changes and two years to make any statutory changes to the program.
Florida Agriculture Commissioner Nikki Fried, the only statewide elected Democrat and a candidate for governor, wrote to EPA Administrator Michael Regan when he first took office to argue that allowing the DEP to administer the federal wetlands permitting process would be disastrous for the environment.
After this story was published online, Fried wrote a letter to Regan reiterating her concerns and urging him to reverse the Trumpera decision and take back control of the Section 404 program.
“Unfortunately, I was correct to be concerned: the Florida Legislature has now passed an industry-backed law that has created a fast-track for wetlands destruction by allowing energy companies to review and expedite environmental resource permits,” Fried said. “This bill will be catastrophic for Florida’s environment if signed into law, and it is imperative that we do everything at both the state and federal levels to prevent corporations from being able to rubberstamp their own plans to destroy our wetlands.”
Meanwhile, the state continues to approve dredge-and-fill permits or waiving the need for them at a record pace, Galloni said.
More than 1,000 have been filed since January. The DEP said it’s a post-COVID growth spurt, Galloni said. “I say people see how easy it is to get a permit and are filing applications before it goes away.”