FDEP assumes Clean Water Act permitting from U.S. EPA 2020-12-17

Despite opposition by Waterkeepers Florida and many other people and organizations, last Friday U.S. EPA gave a big present to Florida developers, by approving FDEP’s assumption of Clean Water Act Section 404 permitting from the U.S. Army Corps of Engineers. The EPA announcement says “The action formally transfers permitting authority under CWA Section 404 from the U.S. Army Corps of Engineers (Corps) to the State of Florida for a broad range of water resources within the State.” It neglects to mention that almost all of the Suwannee River Basin got left out, including the middle and upper Suwannee River, and the Withlacoochee, Alapaha, Santa Fe, Ichetucknee, and New Rivers, as well as the Withlacoochee South River basin.

[EPA announcement over WKFL opposition, our rivers left out]
EPA announcement over WKFL opposition, our rivers left out

FDEP got around to releasing a Draft Retained Waters Screening Tool a few weeks ago, after the public comment period. It seems to confirm what we already deciphered from FDEP’s assumption documents: only part of the Lower Suwannee River and Estuary, ditto the lower Withlacoochee South River, end up being covered by either USACE or FDEP. The vast majority of the Suwannee River Basin fell through the cracks. Of course, we and WKFL and many others will not stop working for fishable, swimmable, drinkable waters. About time for a Bill of Rights for Nature, too.

[FDEP Draft Retained Waters Screening Tool]
FDEP Draft Retained Waters Screening Tool

FDEP’s request for assumption was only on August 20, 2020; the first one since 1994. So EPA took only four months to rubberstamp this momentous transfer.

[U.S. EPA announcement picture]
U.S. EPA announcement picture

Notice the 50 Years EPA poster behind the people. Hell of a way to celebrate the fiftieth year of the EPA.

I guess now we must rely even more on the Suwannee River Water Management District and county and city governments.

For the logistics of the transition, see Andrew J. Turner and Brian R. Levey, National Law Review, Friday, December 18, 2020, Florida Receives EPA Approval to Assume Clean Water Act Section 404 Program. It starts with this:

  • Effective Date. Florida’s 404 program will become effective when it is published in the Federal Register, which is likely to occur in January 2021, prior to inauguration.

I have to admit I agree with Florida Agriculture Commissioner Nikki Fried,

“Just before an election, the DeSantis administration is furthering their relentless drive to consolidate power, seizing authority from the federal government and strengthening his grip on Florida’s wetlands. When it comes to the conservation of our water resources, we need consistency, transparency, and public participation — this administration has demonstrated a disregard for these values in their oversight of the unemployment system, dealings with cabinet meetings, and disclosing of COVID-19 data. Water is our state’s lifeblood, a public good which all Floridians rely on, and we have a responsibility to ensure that the proper checks and balances are in place so it can be protected and conserved for generations to come.”

On the FDEP 404 Assumption web page:

Draft Retained Waters Screening Tool

This mapping tool is a draft depiction of the approximate extent of Retained Waters, along with a 300 foot guideline, as well as Indian Country, as defined by the Memorandum of Agreement between DEP and the U.S. Army Corps of Engineers (Corps). The map contains a screening widget which allows users to draw shapes or upload shapefiles that represent dredge/fill footprints in order to determine if 404 permitting jurisdiction for a project will be retained by the Corps (footprints fully or partially within Retained Waters and/or Indian Country) or assumed by the State (footprints entirely outside of Retained Waters and Indian Country). The Retained Waters layer was created by combining four datasets to represent waters named on the Retained Waters List and shorelines of waters subject to the ebb and flow of the tide (more information in the layer’s metadata). The Indian Country layer was obtained from the Bureau of Indian Affairs’ American Indian and Alaska Native Land Area Representation map. Both layers are subject to change if new information becomes available. These layers are not guaranteed to be accurate and are solely meant to assist the initial screening of an application. After approval of Florida’s program, the final determination of 404 permitting jurisdiction can only be made by comparing actual observations of the site to the text of the MOA (e.g. measurement of ordinary high water mark or mean high tide line for Retained Waters, status and boundaries of the property for Indian Country). This screening tool is considered draft until the implementation of the State 404 program.

The maps’s About popup contains as many disclaimers as information.

This app was built in order to aid in examining the Clean Water Act Section 404 Jurisdiction of areas drawn by the user. In order to use the app most effectively, please use the Screening widget, located on the top left corner of the map directly under the Search bar. You can draw a point, line, or area manually, or you can upload a shapefile using the Screening widget to represent the footprint of dredge and/or fill activities. The Report will indicate if any part of the project footprint intersects Retained Waters or Indian Country, which means that the US Army Corps of Engineers (USACE) will retain jurisdiction of the 404 authorization for the project. If the project footprint is completely outside of the USACE boundaries, the Florida Department of Environmental Protection assumes jurisdiction of the 404 authorization. (This will display as a zero (0) next to “USACE Jurisdiction” in the Report.)

Please note that the GIS datasets are not precise and therefore can only assist the initial and necessarily rapid screening of an application. The final determination of jurisdiction must be made by measuring the 300 foot guideline from the actual presence & location of the MHW (for tidal waters) or OHW (for non-tidal portions of the Retained Waters List) based on application drawings, site observations, or professional surveys.

Please note that the best results will come from uploading shapefiles containing only one feature, or several within the same project area.

Please contact the WRM Shared Services GIS Group if you have any questions about the usage of this app, or the SLERC group with any questions regarding 404 Jurisdiction.

Skip to Map

Considering what just happened in Florida, Georgia should not believe Georgia Environmental Issues Wait In Limbo During Senate Runoff, Presidential Transition, as GPB wrote Friday. If you were a strip miner, wouldn’t you want to rush through Georgia permits for near the Okefenokee Swamp during the holidays when few people are paying attention?

These are more reasons Florida, Georgia, and the rest of the country and the world need a Bill of Rights for Nature.

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

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