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