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What the Supreme Court’s Clean Water Act decision means for Tampa Bay

The Supreme Court’s rollback of wetlands protections alarmed water advocates. But local and state regulators say there is nothing to worry about.
 
Mangroves populate an area on the eastern border of the Weedon Island Preserve in St. Petersburg on Tuesday.
Mangroves populate an area on the eastern border of the Weedon Island Preserve in St. Petersburg on Tuesday. [ DOUGLAS R. CLIFFORD | Times ]
Published July 27, 2023

It was common for raw sewage and bloated dead fish to float atop Tampa’s waterways decades ago. The water was so vile that the area smelled like sulfur.

A combination of federal protections, local ordinances and grassroots efforts helped clean Tampa Bay’s waterways by the 1990s. But recent developments, like a decline in seagrass levels, wastewater spills and a rollback of fertilizer management laws, worry environmental groups.

Now, a recent U.S. Supreme Court ruling has some environmentalists concerned about the Clean Water Act, the federal law that underpins water quality across the country.

They are raising alarms about the Supreme Court’s May decision in Sackett v. EPA, which changed the definition of a protected wetland. That narrowed wetlands protection under the Clean Water Act to exempt “isolated wetlands.” The court said these type of wetlands don’t significantly affect U.S. waters.

Environmental scientists and activists, however, say research shows that a wetland’s health affects water quality elsewhere, even when it isn’t connected to other bodies of water.

A crab scurries through detritus, a mucky bed of organic matter produced by the decomposition of organisms, in a tidal swamp at Weedon Island Preserve in St. Petersburg on Tuesday.
A crab scurries through detritus, a mucky bed of organic matter produced by the decomposition of organisms, in a tidal swamp at Weedon Island Preserve in St. Petersburg on Tuesday. [ DOUGLAS R. CLIFFORD | Times ]

These advocates and researchers say the May ruling, along with the federal government’s handing off wetlands regulation to the state, pose a dangerous mix as Florida’s population swells.

“We don’t have that federal safety net anymore,” said Jaclyn Lopez, former director for the Center for Biological Diversity. “The consequence is going to be additional nearshore pollution, additional algae blooms in our freshwater and the loss of more habitat.”

However, state regulators, who took over wetland permitting from the federal government in 2020, say they are unbothered by the court’s decision. Local water officials in Hillsborough County say current practices should be enough to uphold water quality.

“The state has done a really good job with taking a new program and implementing it,” said Michael Lynch, the county’s wetlands director. “It’s a very young program, and I think what they have done has been nothing short of phenomenal.”

Before the Clean Water Act, Tampa Bay was sick

In the decades since the Clean Water Act passed in 1972, local and state regulations have sprung up to protect Florida’s water.

But it wasn’t always this way.

In the 1970s, phosphate plants and coal-burning power plants expelled sulfur dioxide. Industries, farms and local governments jettisoned raw sewage and other waste into the bay and its conduits.

The pollution resulted in the heavy sulfur smell that got people’s attention.

Residents and government officials confused the stench for an air quality issue. People living on Tampa’s ritzy Bayshore Boulevard reported that the air was tarnishing their silver plates and family heirlooms.

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It wasn’t until 1969, when the bay’s first environmental impact study was published, that researchers pointed a finger at Tampa Bay’s water.

That early research identified problems that would plague the bay for decades: algae blooms and about 6 feet of sludge trapped on the seabed.

Almost half of Tampa Bay’s seagrass had disappeared by 1982. Fish kills became the worst in Florida history and manatees neared extinction.

Implementation of the Clean Water Act brought federal funding and a comprehensive management plan for Tampa Bay when the U.S. Environmental Protection Agency recognized it as an “estuary of national significance” in 1991.

This map shows the loss of wetlands in Tampa Bay from 1948 to 2008. A 2021 study shows that lakes and wetlands in the northern bay area have almost fully recovered, according to Tampa Bay Water. [LANGSTON TAYLOR | Times]
This map shows the loss of wetlands in Tampa Bay from 1948 to 2008. A 2021 study shows that lakes and wetlands in the northern bay area have almost fully recovered, according to Tampa Bay Water. [LANGSTON TAYLOR | Times] [ Data provided by Universty of South Florida Water Institute ]

Ed Sherwood, who serves as director of that program, said there are many uncertainties about the future of Florida’s wetland regulations, which may see legal challenges after the Supreme Court’s decision.

“I think the crux of the latest federal ruling by the Supreme Court is relevant to small, isolated wetlands and whether or not they would be disproportionately affected by these regulations moving forward,” he said.

Lopez agreed the ground is shaky on how wetlands permitting might change after stripping federal protections. But the threat this change poses is obvious, she said.

“If we sacrifice the very thing that makes living in Florida special, then I think that the consequences are really clear,” Lopez said. “We’re going to lose it and people aren’t going to want to live here.”

Regulators expect business as usual

Wetlands are especially important in Florida, home of the Everglades, which is the largest subtropical wetland in North America.

They replenish the Floridan Aquifer, the largest source of drinking water for Floridians, and soak up excess nutrients that worsen coastal red tide blooms. Wetlands and deep-water habitats make up nearly 24% of Tampa Bay’s watershed, according to a Florida Fish and Wildlife Conservation Commission study.

Richard Chinn, a senior professional wetland scientist based in Brandon, runs a company in which he teaches environmental consultants, engineers and land developers how to designate wetlands. He said Florida’s regulations are some of the most stringent in the U.S., and the ruling won’t change much in the state.

Florida’s program is much broader than the federal program, according to the National Association of Wetland Managers. These strict state rules and other permitting regulations from water management districts should be enough to protect Florida’s most delicate water bodies from development, Chinn said.

“You could almost — and I’m not recommending this — remove the Clean Water Act in Florida, as far as wetland impacts go, and it would not be a big change,” he said.

In Tampa Bay, wetlands are regulated by the Environmental Protection Commission of Hillsborough County, the local water management district and the Florida Department of Environmental Protection. Chinn said this shared governance creates a stronger web than any federal rule could spin.

Mangrove roots reach for the water at Weedon Island Preserve in St. Petersburg on Tuesday.
Mangrove roots reach for the water at Weedon Island Preserve in St. Petersburg on Tuesday. [ DOUGLAS R. CLIFFORD | Times ]

But Florida’s wetlands protection does have a major flaw, Chinn said: Wetlands that are half an acre or smaller are not protected.

“There’s no consequence. There’s nothing to stop you,” he said. “You don’t have to mitigate the loss if it’s a wetland under half an acre that is not deemed to be of significant value.”

Permitting for small wetlands like these often falls on local governments, not federal regulators.

Hillsborough County, unlike the state, has no minimum threshold for wetlands protections. That means any residential development on wetlands done inside the county must be done with the Hillsborough department’s blessing.

“Wetlands in Hillsborough County are probably the most protected wetlands in this entire state,” Chinn said.

Lynch, who runs the county’s wetlands program, said he isn’t worried about the Supreme Court’s decision either.

“I don’t personally look at it as a loss for Florida in any way,” he said. “There was already a way to catch those wetlands.”

Brandon Moore, spokesperson for Tampa Bay Water, the area’s regional utility, said regulations set by the state and the Southwest Florida Water Management District should safeguard the bay’s drinking water from the Sackett decision.

“We don’t believe the federal ruling will affect the quality of regional drinking water sources, or current and future quantities used from these sources,” Moore wrote in an email.

The state environmental agency said it hasn’t changed its protocols and will be taking cues from the federal government. Officials are awaiting changes to the U.S. Environmental Protection Agency’s rulemaking in the wake of the Sackett decision, said Brian Miller, a spokesperson for the state agency.

Is Florida taking on more than it can handle?

Environmental groups say deregulation is happening at the worst possible time.

“There is a direct correlation between sprawl and poor planning, and impaired water quality,” said Jane West, policy director for the nonprofit 1000 Friends of Florida.

Florida is the fastest-growing state in the country, according to the U.S. Census Bureau. The Tampa Bay Economic Development Council estimates that in 2022 more than 1,200 people a day moved to Florida.

Hillsborough and Pasco counties are growing at even faster rates.

“Now you have an understaffed, underresourced department in the state basically regulating all wetlands development compounded with a weaker federal authority under the Clean Water Act,” West said.

“None of that is good.”

Developers have pushed the state to review these permits for years. In 2005, one lobbyist called a state department takeover “the ‘Holy Grail’ for developers.”

Environmental groups who fought against this outcome said state officials would be more lenient than federal regulators, favoring increased development.

In 2020, the U.S. Environmental Protection Agency signed over authority to issue wetland permits in the state to the Florida Department of Environmental Protection.

But the federal agency hasn’t stepped away from the permitting process completely yet.

The state received 39 objection letters from the federal agency halting development permits since assuming permitting responsibility, according to the state department. But only two objections were sustained, said Lynch, the director of wetlands at the Hillsborough environmental agency.

Lynch said this oversight is standard — the federal agency is watching the state carefully to see how it handles its new authority.

Lynch said the state department’s permitting process is as rigorous, if not more thorough, than it was under federal oversight.

Not everyone agrees.

Kayakers arrive near the boardwalk at Weedon Island Preserve in St. Petersburg on Tuesday.
Kayakers arrive near the boardwalk at Weedon Island Preserve in St. Petersburg on Tuesday. [ DOUGLAS R. CLIFFORD | Times ]

Lopez said wetlands development at the state level involves mitigating 1 acre for every acre that is lost.

“That’s less than what the federal government typically requires,” she said.

Lopez said this seems like a fair trade on paper, but mitigation, which involves developers destroying one wetland and pledging to preserve another one nearby, doesn’t fully protect wetlands.

She said she’s more worried that small pieces of wetlands lost during mitigation will add up quickly.

“It’s that classic ‘death by 1,000 cuts,’” she said. “Not any one single project is like the death knell for all wetlands in Florida.”