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.
Sincerely,
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
941-323-2404
