Environmentalists sue to stop Florida from handling wetlands development permits

Groups are challenging a decision by President Trump’s Environmental Protection Agency.
A rope swing sways gently in the wind near the headwaters of the Wacissa River in December 2013.
A rope swing sways gently in the wind near the headwaters of the Wacissa River in December 2013. [ Times (2013) ]
Published Jan. 14, 2021|Updated Feb. 12, 2021

Environmental advocacy groups are suing the federal government to stop Florida from regulating development decisions in many of the state’s wetlands.

The lawsuit, filed Thursday in federal court in Washington, D.C., charges that the Environmental Protection Agency rushed a decision last month when it granted Florida permitting authority over dredging and filling in certain wetlands. The U.S. Army Corps of Engineers previously controlled such decisions.

“EPA’s approval is unlawful because the state’s program is not as stringent as federal law and rests on unprecedented arrangements that violate federal law,” lawyers for Earthjustice, an environmental legal organization, wrote in their complaint. Several groups were behind the challenge: the Florida Wildlife Federation, Miami Waterkeeper, St. Johns Riverkeeper, Defenders of Wildlife, Sierra Club, Center for Biological Diversity and the Conservancy of Southwest Florida.

Related: EPA agrees to let Florida oversee more wetlands development

A spokeswoman for the Environmental Protection Agency declined to comment on a pending lawsuit. The Florida Department of Environmental Protection, which applied for and took on the permitting program, also does not comment on pending litigation, said spokeswoman Alexandra Kuchta.

Kuchta said the complaint was under review by the agency’s general counsel, and she pointed to a past news release with support for the program from leaders at The Everglades Foundation and The Nature Conservancy in Florida, who hope the state will move more quickly to permit environmental restoration projects.

Noah Valenstein, secretary of the agency, has previously said its program will be at least as stringent as the federal government’s, and the Environmental Protection Agency will still provide oversight to ensure Florida’s system runs smoothly.

“We are held accountable to the federal law,” Valenstein said.

Wetlands permitting is an essential part of many developments around Florida, including some new roads and houses. Builders have long advocated for the state to take control, saying the federal process is too slow and costly. State regulators, they said, performed similar reviews and issued permits on faster timelines.

Environmentalists countered that permitting decisions should be deliberate, and that people here have already filled too many wetlands, which are natural barriers to flooding and a habitat for native wildlife. They said developers, many of whom are wealthy political backers, could wield influence over state-level authorities more easily than they could the Army Corps.

“The state of Florida and the federal government have once again prioritized special interests and the development-driven bottom line over environmental protection,” said Kelly Cox, general counsel for Miami Waterkeeper, in a statement released through Earthjustice on Thursday.

The case alleges shortcomings with Florida’s application, including that it did not clearly lay out which waters would come under state control and which would stay under the Army Corps’ purview. Lawyers wrote that the state and the federal government further did not assure sufficient protections for endangered species that rely on wetlands.

Related: Feds consider plan to transfer Florida wetlands permitting to state

“This was definitely a situation where the state and the Trump administration worked hand-in-hand to come up with some workarounds to federal law,” said Tania Galloni, Earthjustice’s managing attorney for Florida, in a phone interview.

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When the Environmental Protection Agency considered the idea last fall, hundreds of commenters urged reviewers to deny Florida’s bid. Residents questioned how the state Department of Environmental Protection could take over the program without hiring more workers and referenced staffing cuts under former Gov. Rick Scott. The agency has vowed that 85 percent of the workload overlaps with existing duties.

More than 200 state employees could work on the permitting at least some of the time, Valenstein has said. At a news conference last month, he explained that his wetlands scientists “live among the resources” and “care passionately about (them).”

“We want to be in the driver’s seat,” he said.

The lawsuit argues that Florida’s leaders also did not describe potential new costs from taking on the program. The coronavirus pandemic could bring budget cuts across state government, Galloni said.

Related: Gov. Rick Scott's DEP wants to take over issuing federal wetland permits

Leaders here had thought about and decided not to take on the work before. In 2018, the Legislature voted to let the Department of Environmental Protection explore the idea again.

The permitting program is guided by the federal Clean Water Act. Across several decades, two states — Michigan and New Jersey — had taken control of it before Florida.

In announcing the approval, Environmental Protection Agency Secretary Andrew Wheeler lauded Florida for outlining a course other states could follow to assume permitting. He said his agency already had heard of some new interest.

Earthjustice’s legal challenge comes days before a change in presidential administrations, meaning turnover among leaders at the Environmental Protection Agency who could answer to the suit.

“At this point, we don’t know what the new EPA would do,” Galloni said.

Correction:  An estimate from the U.S. Geological Survey shows Florida has a little more than one-tenth of America’s wetlands, not including Alaska or Hawaii. An earlier version of this story gave a disputed figure.