Waterkeepers Florida Against FDEP Assumption of Army Corps CWA 404 permitting 2020-11-02

Waterkeepers Florida, representing all fourteen Waterkeepers of Florida, wrote to U.S. EPA and FDEP yesterday objecting to FDEP’s plan to take over water permitting from the Army Corps of Engineers. FDEP hasn’t even kept up with the responsibilities it has, and is in no way prepared to take on a much heavier load. Suwannee Riverkeeper voted for this letter, which was also signed by many other organizations, including OSFR and Paddle Florida.

Please vote today for people who will support clean water.

[Opposition and Addendum Letters]
Opposition and Addendum Letters

The Florida Department of Environmental Protection (FDEP)’s list of waterways it plans to assume (see FDEP’s Appendix A) omits numerous navigable waterways previously listed by the U.S. Army Corps of Engineers. Checking all the Florida rivers that empty into the Gulf of Mexico, I found that most of them were included by FDEP, except not the Suwannee River or its tributaries (many creeks, Lake Santa Fe, and the Santa Fe, New, Ichetucknee, Alapaha, Alapahoochee, and Withlacoochee (north) Rivers), not the Withlacoochee (south) River nor its tributaries such as the Rainbow River, and not the Ochlockonee River nor its tributaries, such as Lake Talquin. I added 30 Suwannee River Basin waterways and 24 others to the Waterkeepers Florida list of missing waterways, which is the main subject of the Addendum letter (see PDF). The Addendum also contains copies of several letters previously sent to FDEP: an opposition letter similar to the one to EPA, a request for Public Hearings, and a request that online rulemaking hearings be discontinued until the pandemic allows holding them in person.

Opposition Letter

Here is a transcription of the letter to EPA. See also the PDF.

Don’t forget to vote for clean water.

[Blue on white WKFL Logo]

November 2, 2020

US EPA, Region 4 Water Division, OWSPB
c/o Kelly Laycock
Atlanta Federal Center
61 Forsyth Street, SW
Atlanta, GA 30303

Via Email to: 404Assumption-FL@epa.gov

RE: Comments in Opposition to FDEP’s Assumption Application Package: Docket No. EPA-HQ-OW-2018-0640, FRL-10014-54-Region 4

Dear Mr. Laycock,

On behalf of our respective organizations and our thousands of members, we are writing to express our opposition to the Florida Department of Environmental Protection’s (“FDEP”) application to assume jurisdiction under Section 404(a) of the Clean Water Act (“CWA”), 33 U.S.C. § 1344, for wetland permitting in waters of the United States.

Florida’s waterways are uniquely connected and are critical to our public health, our economy, and our environment. In light of our rapidly growing population and increasing development pressure, it is essential that these waters are afforded the utmost oversight and protection to ensure that the resources on which we depend are adequately protected. CWA Section 404 requires permits for the discharge of dredge and fill material into Waters of the United States, including wetlands. Florida has particularly fragile and critical areas that are regulated by Section 404 dredge and fill permits, and which require the highest level of review and scrutiny.

Our state has more than 130 listed species, more than 7,700 lakes (greater than 10 acres), 33 first magnitude springs, 11 million acres of wetlands, almost 1,200 miles of coastline, and approximately 27,561 linear miles of rivers and streams. As Floridians, clean water is integral not only to our quality of life but also to our economy. Everglades National Park alone generates more than $100 million annually in tourism revenue. Our outdoor recreation industry generates $58.6 billion annually and our state is widely recognized as the Sport Fishing Capital of the World. Our waterways support billions of dollars in commerce each year and create tens of thousands of jobs for Floridians. Any risk posed to these waterways is a direct risk to our economy and our livelihoods.

Federal oversight is critical to the protection of wetlands and waterways in the State of Florida. To date, FDEP has not submitted evidence to show that its program would be as stringent or protective as the current federal program — thus, we oppose this assumption application request.

Loss of Federal Protections

Floridians cannot afford to lose the protection of federal laws that are triggered when federal agencies operate the 404 program, including, but not limited to, the Endangered Species Act which protects the rarest and most at-risk wildlife in our state; the Magnuson-Stevens Act which protects Essential Fish Habitat and our world-class fisheries; the National Environmental Policy Act (“NEPA”) which protects our quality of life and helps ensure prudent decision making; and the National Historic Preservation Act which protects our historical and cultural resources.

Federal oversight of Clean Water Act Section 404 permits has informed, modified, and halted projects that were otherwise greenlighted by FDEP and would have resulted in adverse impacts to Florida’s water resources. Our water resources are vulnerable and deserve additional scrutiny in order to avoid those adverse impacts. Both state and federal levels of review are essential to protecting our resources from local political pressure and special interests, particularly given the demands of our growing population, increasing development, and sprawl. Nearly half of Florida’s wetlands have already been destroyed due to development and sprawl, so maintaining this federal level of review is imperative.

Further, Florida has severely limited access to the courts and the public’s ability to challenge unlawful permits in an independent forum. This creates an additional lack of oversight and accountability that would further undermine public confidence in a state 404 program. Floridians need access to federal courts to ensure accountability in the 404 program and a fair, accessible forum when agencies fall short.

Inadequate State Resources

FDEP lacks the resources, staff, and funding to implement, operate, and enforce a Section 404 program. In a 2005 report, FDEP itself found that assumption would be extremely costly, yet FDEP now does not anticipate requiring additional financial resources to implement this program. This ignores the fact that they would need to train overworked employees to consider and process statelevel wetland permits and 404 permits differently. FDEP’s position is unrealistic, especially considering that the state of Florida is facing major budget shortfalls due to the COVID-19 pandemic and a downturn in the economy.

In addition, state assumption of Section 404 authority is not in the public interest because it will create a multi-million-dollar taxpayer burden. The only two states—New Jersey and Michigan— that have assumed Section 404 jurisdiction have spent millions of dollars to develop and operate their programs. Michigan is currently trying to return this burdensome responsibility to the federal government. Florida has considerably more wetlands and higher biodiversity than these states, and as such would require a higher level of expertise, resources, and scrutiny to adequately administer this program.

FDEP’s Failure to Meet Existing Regulatory Demands

FDEP has failed to adequately enforce environmental regulations already within its purview. For example, FDEP is sorely behind in the development of Total Maximum Daily Loads (“TMDLs”) and Basin Management Action Plans (“BMAPs”) for impaired waterbodies across the state, FDEPestablished Best Management Practices (“BMPs”) for stormwater and agriculture are not meeting their intended pollution reduction goals, and there are waterbody sites across the state that have not had consistent water quality testing in years.

Municipalities across the state are regularly out of compliance with conditions of their FDEPissued Municipal Separate Stormwater System permits. FDEP cannot keep up with National Pollutant Discharge Elimination System (“NPDES”) permits and hundreds of locations in South Florida have not even secured the requisite NPDES permits for their properties. If FDEP cannot adequately enforce existing administrative responsibilities, they will not be able to handle the additional demands of assuming Section 404 authority. Furthermore, the State of Florida recently transferred to FDEP all responsibility for regulating the more than 2,700,000 septic tanks that exist in the state. This is a burdensome undertaking on an agency that is already under-resourced and falling behind on its existing obligation. If FDEP were to receive Section 404 permitting authority, resources would be diverted away from FDEP’s existing duties or vice versa — a diversion that our precious water resources cannot afford.

Incomplete Application Package

In the application, FDEP refused to answer “resource related” questions, failed to explain how the agency would “streamline” its currently understaffed and overworked wetlands division to take on a new federal program, and had not finalized, nor provided, memoranda of agreement that explain how the Department would implement the program. FDEP’s assumption application fails to adequately describe or list the waters that will be assumed if Florida’s application were to be granted, which is critical information for the public and involved agencies. The maps that were provided in the application are low resolution and nearly impossible to read with any specificity. The list of waters is similarly vague, with no clarification about where these waterways are located.

Also, FDEP’s application has failed to explain how endangered species will be adequately protected under their proposed assumption of the Section 404 program. Instead, it pointed to an anticipated programmatic biological opinion from the Fish and Wildlife Service and National Marine Fisheries Service that will dictate the procedures to be followed at the permit review level to ensure jeopardy will be avoided. However, this document is not part of their application or available to the public for consideration. EPA must require FDEP to submit a clear and complete application to ensure full and informed public participation in its development of a state 404 program before considering the application.

Inadequate Public Involvement

The timing of the public hearings on FDEP’s application presents major barriers to access. FDEP insisted on holding the public portion of its rulemaking process at the peak of the COVID-19 pandemic in March and April 2020, and during a statewide state of emergency which included mandatory state and local stay at home orders. Forward movement on this process ran counter to the wishes of tens of thousands of Floridians who requested that the agency not proceed with rulemaking during the peak of a pandemic. This decision limited the ability of the public to fully and meaningfully participate in this process. Ultimately, virtual public hearings run the risk of excluding those without the resources to attend.

Despite the problems with public involvement, FDEP received numerous comments opposing assumption of Section 404 authority. During the rulemaking process, a multitude of stakeholders raised concerns about the proposal and expressed opposition to it. This opposition has not waned as this process has moved forward. The vast majority of comments at both public hearings have been opposed to this application.

The Florida Department of Environmental Protection is rushing to take over wetlands permitting and has created a proposal that is incomplete, full of uncertainty, and one that puts our water resources at risk. Additionally, this process has carved many constituencies out of the conversation and public involvement has been inadequate for a decision of this magnitude.

Waterkeepers Florida and the undersigned organizations urge you to deny FDEP’s application package for assumption of Clean Water Act Section 404 authority in order to ensure that our water resources retain the critical federal protections and oversight that our wetlands and vulnerable water resources so desperately need.

Rachel Silverstein, Ph.D.
Miami Waterkeeper
(305) 905-0856

Lisa Rinaman
St. Johns Riverkeeper
(904) 509-3260

Jen Lomberk
Matanzas Riverkeeper
(904) 471-9878

Georgia Ackerman
Apalachicola Riverkeeper
(904) 509-3260

John Cassani
Calusa Waterkeeper
(239) 444-8584

Colleen Gill
Collier County Waterkeeper
(609) 731-1362

Laurie Murphy
Emerald Coastkeeper
(850) 712-9566

Mike Conner
Indian Riverkeeper
(772) 521-1882

Reinaldo Diaz
Lake Worth Waterkeeper
(561) 707-2897

Anna Laws
St. Marys Riverkeeper
(404) 909-0667

Joseph McClash
Suncoast Waterkeeper
(941) 792-2806

John S. Quarterman
Suwannee Riverkeeper
(850) 290-2350

Megan Eakins
Tampa Bay Waterkeeper
(312) 952-2335

John Capece
Kissimmee Waterkeeper
(863) 354-0554

Christine Rupp
Executive Director
Dade Heritage Trust
190 SE 12 Terrace
Miami, FL 33131
305-358-9572 – Office
305-910-3996 – Cell

Yoca Arditi-Rocha
Executive Director
The CLEO Institute
Phone (305) 573-5251
Email: yoca@cleoinstitute.org

Sanibel-Captiva Conservation Foundation

Florida Conservation Voters

Catalyst Miami

Friends of Biscayne Bay

Cape Coral Friends of Wildlife

Environment Florida

Hendry-Glades Audubon Society

Florida Bay Forever Save Our Waters

Our Santa Fe River

Peace River Audubon

Sierra Club Calusa Group

Conservancy of Southwest Florida

Florida Division of the Izaak Walton League of America

Florida Springs Council

Paddle Florida, Inc.

Florida Keys Chapter of the Izaak Walton League of America

“Ding” Darling Wildlife Society

South Florida Wildlands Association

Surfrider Foundation

Save the Manatee Club

1000 Friends of Florida

Animal Legal Defense Fund

Thanks to Miami Waterkeeper for doing most of the work of composing these letters.

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

You can join this fun and work by becoming a WWALS member today!