Let’s call the whole thing off: Clean Water Act permitting should return to Feds

September 15, 2021

By Amber Crooks | Environmental Policy Manager

At a recent industry conference, developers, their representatives, and consultants from across the state expressed frustration that the new “state 404” program had not yet lived up to their expectations. The tension in the air was palpable and it was standing room only. Participants were out of their seat, angry and upset at agency officials.

Approved in the last days of the Trump administration, the power to provide Clean Water Act wetland permits was taken from the Army Corps of Engineers, who have administered it for decades, and given to the Florida Department of Environmental Protection (FDEP).

It was touted that transferring the program to the state would streamline processing of wetland destruction permits, and FDEP promised they could do so without significant increases in state funding or staff. The development community championed the idea; the environmental community opposed, citing concerns about loss of environmental protections and lack of sufficient resources to tackle the awesome responsibility of preserving Florida’s wetlands.

Yet, the state and federal agencies have now admitted that the workload and confusion associated with the transition was, and still is, much greater than expected. The necessary manpower at the FDEP and Florida Fish and Wildlife Conservation Commission (FWC) to attempt to tackle the 404 program has far exceeded what they planned for, and both agencies have reallocated personnel off of other important issues to work on this program.

These were concerns the Conservancy of Southwest Florida and our partners had expressed at the start. We asked FDEP to focus its efforts on its critical existing water quality programs, and leave the Clean Water Act permitting to the feds where essential environmental laws like the National Environmental Policy Act and the Endangered Species Act are triggered and become part of the decision-making. Under a state program, these protections are completely lost or become just a shell of their original purpose.

It’s not often that developers see eye to eye with environmentalists, but representatives of both have shared worries that the state staff are attempting to tackle the new and unknown without adequate training, knowledge, and resources. And unfortunately, by many accounts, it seems that the morale of the state staff has dwindled, as they try not to drown in the tsunami of development applications (some of which seem to have been timed to hit when the feds no longer were at the helm).  

The state agencies have the future of Florida, and the future of the Florida panther, in their hands. FDEP and FWC currently have some of the most damaging proposals before them, including road expansions, mines, oil operations, and new towns. In southwest Florida alone, these agencies stand to rule on thousands of acres of development in panther habitat near the Florida Panther National Wildlife Refuge, a huge mine on lands that recharge our drinking water, and new oil drilling in the pristine Big Cypress National Preserve. There are over 580 applications before these agencies in our five-country region alone; one out of five of the state’s applications are in the Conservancy’s focal area.

To the proponents of the state 404 program, paving the way for the paving over of Florida: be careful what you wish for. The state program might not be the panacea you believed it to be.

But there is a solution. The Environmental Protection Agency (EPA) can return the program to that tried and true process that contains all of the tools in the toolbox needed to protect our valuable wetlands. Clean Water Act permitting should return to the feds.