With Judge’s Order, the Fight Continues for Wetland Protection

April 12, 2022

The year 2022 brings with it the 50th anniversary of one of our nation’s foundational environmental laws – the Clean Water Act.

Here in Florida, the Army Corps of Engineers has long been the agency responsible for deciding if development projects are compliant with this vital law.

However, in December 2020, in the last few days before a change in presidential administrations, the authority to implement the Clean Water Act dredge and fill permitting program (also known as the Section 404 program) was handed over to the state of Florida.

The Conservancy of Southwest Florida and our partners, represented by Earthjustice, recognized that the transfer was done hastily and without complying with the Administrative Procedure Act, which would have provided a delay in the effective date. Such a stay would have provided the incoming administration the ability to pause and consider the overwhelming opposition to the state’s program expressed by the environmental community.

On March 31, 2022, a federal judge agreed.

The federal judge also denied the state of Florida’s efforts to dismiss our entire court case. This decision opens the door to allow the Judge to consider additional aspects of our case, which includes our claims that the state’s program is more lenient than the federal program and that reviews of impacts to our imperiled wildlife species are being shortchanged.

While the case is far from over, we believe that given the judge’s decision, the US EPA should restore the program back to the Army Corps until the court finishes its review.

Without the US EPA taking action, the Florida Department of Environmental Protection (FDEP) will likely continue to illegally allow destruction of wetlands, as the state continues to apply the wrong definition to identify wetlands, impacting which projects require a permit and how avoidance and mitigation measures are considered.

The FDEP continues to use a definition of wetlands that was thrown out after a separate court case ruling, and despite the US EPA notifying the state of this major discrepancy. The US EPA warned Florida that any permit it issues – or if it lets applicants off the hook citing that no permit is required – using this flawed approach would be in violation of the Clean Water Act and may be subject to enforcement measures. But the state of Florida has continued to operate using these weak standards.

Our challenge to Florida’s program lives to fight another day, in hopes that the US EPA will reinstate the program so that critical tools are available during every permitting decision (such as proper wildlife considerations, NEPA review, stringent enforcement standards, and even the correct legal definition of wetlands).

Every acre of wetland is essential to solving our water quality troubles by providing natural filtration as nature’s kidneys.

It is estimated that one acre of wetlands can provide storage for over 1 million gallons of flood waters, helping in storm events.

As the Judge deferred a decision on a potential remedy for US EPA’s illegal procedure, stay tuned for future updates as the case continues. Our legal complaint document and more information can be found here.

The Conservancy’s history was founded protecting Rookery Bay from an unnecessary road that would have destroyed and fragmented wetlands, and we see this lawsuit as a continuation of our mission to protect our region’s –and the state’s- valuable wetlands for our quality of our life and our future.