Wednesday, March 21, 2018

Sierra Club asks Governor Scott to veto wetlands dredging bill - HB 7043

March 19, 2018

The Honorable Rick Scott, Governor
State of Florida
The Capitol
400 South Monroe Street
Tallahassee, FL 32399-0001

Dear Governor Scott:

Sierra Club Florida urges you to veto HB 7043, titled State Assumption of Federal Section 404 Dredge and Fill Permitting Authority

HB 7043 abandons wetlands protections available in federal law, allows Florida to assume new responsibilities without commensurate new resources, and leaves virtually all important implementation questions unanswered.  Accordingly, the bill puts at risk a diminishing resource that provides water supply by routing water into the aquifers that provide 90% of our drinking water, filters pollutants from stormwater before they reach our aquifers, rivers, lakes, and springs, provides significant flood protection, and provides habitat for many of the state’s imperiled species from the Everglades snail kite to the Florida panther. Florida has lost ~44% of its wetlands since 1845.

Specifically the bill would:

1) Abandon the protections of the National Environmental Protection Act (NEPA), the Endangered Species Act (ESA), and the checks and balances between the EPA and the Army Corps of Engineers. 

HB 7043 will transform wetland permitting involving vast swaths of our landscape from “federal actions” to “state actions” with the result that interactions between agencies required under federal law will no longer apply.  Florida’s wetlands will lose the protection of two of the most important federal environmental laws: NEPA and the ESA. This means the Environmental Assessment and Environmental Impact Statements required under NEPA, as well as public input provisions will no longer be required.   

With respect to the ESA, Florida has many more federally listed species than New Jersey or Michigan, the two states that have assumed delegation from the EPA and the Corps.  In both of those states no formal Section 7 consultation occurs with the Fish and Wildlife Service and no formal biological opinion is prepared.  Instead, it appears the Service issues findings and recommendations to the EPA and the state.  It is unlikely that these findings and recommendations will be subject to judicial review in federal district court under the Administrative Procedures Act and the ESA.

Under the Clean Water Act, the Army Corps issues section 404 wetland dredge and fill permits under a set of mandatory guidelines developed by EPA, and the Corps’ permitting authority is subject to an EPA veto.   This bifurcation of authority provides an important check and balance that serves to promote protection of a resource that is important to all Americans. Clean water and related wetland values are essential to both Florida and the nation. The balance between private property and development with our most biologically productive and most rapidly diminishing resource must not succumb to a short-sighted race to the bottom.  It is unrealistic to expect that DEP will be able to act as a check and balance on its own permitting activities.

2) Assume new responsibilities without commensurate new resources.  

DEP has stated that it has sufficient resources and trained personnel to take on the new responsibilities inherent in assuming delegation.  Further, they have said they do not intend to require permit applicants to pay the costs of processing permits.  DEP has repeatedly stated that there is 80-85% overlap between their current responsibility to issue ERPs and their new duties under 404 dredge and fill permitting requirements. That is a tacit admission that their workforce will face a 15-20% increased workload caused by their new responsibilities when delegation is assumed. 

In addition, taking on 404 permitting entails potential litigation which costs money and requires either staff or additional funding for outsourced legal work, not to mention possible settlements.

3) Leaves virtually all important implementation questions unanswered.

HB 7043 leaves the determination of important policy issues to future Memoranda of Agreement between DEP and both EPA and the Corps, effectively granting the Department of Environmental Protection unbridled discretion.  At the time HB 7043 was passed by both chambers no legislator knew how 404 delegation will affect wetland permitting in Florida.  It was then, and remains now, impossible to know because the details will all be incorporated in Memoranda of Agreement that have yet to be negotiated and finalized.

During committee hearings much was made of the requirement under federal law that DEP’s standards will have to match all current federal standards in order to receive delegation.  However, having the same standards is not a guarantee they will be interpreted and enforced as EPA and the Corps do now.  It is not encouraging that in Michigan after being alerted by environmental groups, EPA found problems in Michigan's program, but even 34 years after assuming delegation, not all the problems have been resolved as far as we can tell.

We urge you to exercise your authority to veto HB 7043 in order to preserve the current stewardship afforded Florida’s wetlands under EPA’s and the Corps’ administration of the Clean Water Act Section 404 Dredge and Fill permitting program.


David J. Cullen
on behalf of the Sierra Club Florida Executive Committee

David J. Cullen
Sierra Club Florida Lobbyist
1990 Central Avenue
St. Petersburg, FL 33712

Friday, March 9, 2018

Florida Legislature Passes Bill that will Harm Drinking Water Quality -- Senate Leaders Kill Fracking Ban

By a vote of 27 to 10, the Florida Senate today approved House Bill 1149, a bill that encourages the injection of reclaimed water into Florida aquifers.   Amendments filed by Senator Gary Farmer to ban fracking and protect water quality were inexplicably withdrawn by Senator Farmer yesterday evening.  The bill was previously passed by the House of Representatives by a vote of 86 to 21 and now moves to Governor Rick Scott's desk for his signature or veto.

Statement by Frank Jackalone, Sierra Club Florida Chapter Director:

Floridians need to hold the Florida Legislature accountable for passing a bill (HB 1149) that will harm Florida's aquifers.  It allows millions of gallons of reclaimed water to be pumped daily into the aquifers we all depend on for our drinking water.  Sierra Club thanks the 10 Senators who today voted against this bad bill.  

Senate leaders will need to explain to Florida voters why they wouldn't allow a vote on a fracking ban in Florida.  Fracking for gas and oil poses an extreme danger to Florida's drinking water, and it releases harmful methane gas that harms our health and accelerates global warming.   We are convinced that a majority of the Senate would have voted approval for a fracking ban if Senate President Joe Negron and Senate Appropriations Chair Rob Bradley had allowed Senators to vote on the bill.  

We also regret that Senator Farmer withdrew three amendments to HB 1149 that would have banned fracking in Florida and ensured higher water quality standards in this bill.

Call Your Senators - Ask them to vote NO on House Bill 1149. Amendments were withdrawn to ban fracking and protect Florida's aquifers!

Dear Supporters of Clean Air, Water, and Energy:

We regret to inform you that last night Senator Gary Farmer (D-Ft. Lauderdale) withdrew his amendment to House Bill 1149 that would ban fracking in Florida.  Additionally, Senator Farmer withdrew two other amendments to the bill that would ​make water pumped into the aquifer cleaner.

The bill that is left is coming to the floor today, and it is bad for Florida's waters. And Senator Keith Perry (R-Gainesville), the sponsor of the bill, is asking Senators to vote on a revision of the bill that would make it even worse. ​

Please call your Senators - one more time - and ask them to vote NO on House Bill 1149.  HB 1149 has already passed the House so only the Senate can stop it.

Find your Senator here.  Just enter your address:  
All their Capitol phone numbers are at the bottom of this email.  

Thank you!

Background and talking points

Sen. Perry will move the adoption of amendment  908716 to 1308 to match it to HB 1149 and then move to substitute HB 1149 for his bill and pass it on third reading.  The bill includes:
The standards of treatment for reclaimed water are inadequate to allow it to be pumped into the aquifer we all depend on.  Any contamination will be impossible to clean up – just xconsider how long it takes to clean up plumes resulting from dry cleaning fluid and leaking gasoline tanks.  And the aquifer recharge proposal contemplates pumping millions of gallons a day into the drinking water supply.
·         REISSUING EXPIRED PERMITS – EVEN TO NEW OWNERS WHO DIDN’T HAVE A PERMIT TO BEGIN WITH – and only requires the reissued permit to meet the standards that were in effect up to three years ago, not new standards that may have been adopted since.  It also accepts “professional certification” that the project won’t create additional adverse impacts.  That determination should be made by DEP or the WMD, not by a professional with an unavoidable conflict of interest in favor of the client.
·         ALLOWING REPAIRS AND REPLACEMENT OF DOCKS AND PIERS THAT DON’T REQUIRE PERMITS WITHOUT CONSIDERING CUMULATIVE IMPACTS – Any construction that shades or disturbs seagrasses takes a very long time to heal and cumulative impacts are significant.

All Senators’ Capitol Phone numbers are below:
IMPORANT: Online lookup feature only shows the district phone number. Use tool to find your Senator's name and district number andcall the CAPITOL OFFICE NUMBER from list below. Don't forget, tell them WHERE YOU LIVE.
Find your Senator from the list below and call or click here to find.

Escambia, Santa Rosa and part of Okaloosa
Bay, Holmes, Jackson, Walton, Washington and part of Okaloosa
Calhoun, Franklin, Gadsden, Gulf, Hamilton, Jefferson, Leon, Liberty, Madison, Taylor and Wakulla
Nassau and part of Duval
Baker, Bradford, Clay, Columbia, Dixie, Gilchrist, Lafayette, Levy, Suwannee, Union and part of Marion
Part of Duval
Flagler, St. Johns and part of Volusia
Alachua, Putnam and part of Marion
Seminole and part of Volusia
Citrus, Hernando and part of Pasco
Part of Orange
Sumter and parts of Lake and Marion
Part of Orange
Parts of Brevard and Volusia
Osceola and part of Orange
Indian River and part of Brevard
Part of Hillsborough
Parts of Hillsborough and Pinellas
Parts of Hillsborough, Pasco and Polk
Manatee and part of Hillsborough
Parts of Lake and Polk
Sarasota and part of Charlotte
Part of Pinellas
Martin, St. Lucie and part of Palm Beach
Desoto, Glades, Hardee, Highlands, Okeechobee and parts of Charlotte, Lee and Polk
Part of Lee
Collier, Hendry and part of Lee
Part of Broward and Palm Beach
Part of Palm Beach
Part of Broward
Part of Broward
Part of Broward
Parts of Broward and Miami-Dade
Part of Miami-Dade
Part of Miami-Dade
Part of Miami-Dade
Monroe and part of Miami-Dade
Part of Miami-Dade