EPA clashes with Fla. over use of Trump WOTUS rule

By Hannah Northey | 02/04/2022 01:28 PM EST

Florida WOTUS collage.

EPA is pushing back on Florida's handling of permitting decisions under the Clean Water Act after granting the state rare oversight authority at the end of the Trump administration. Claudine Hellmuth/E&E News (illustration); Florida EPA (left photo); R9 Studios FL/Flickr (right photo); EPA (document text)

EPA and Florida are nose to nose over the state’s use of Trump-era Clean Water Act regulations for permitting.

At the heart of the debate is the Trump administration’s Navigable Waters Protection Rule that pulled back protections for streams and wetlands across the nation.

Federal judges in Arizona and New Mexico vacated the rule and sent it back to EPA last summer, saying the Trump definition of “waters of the United States” (WOTUS) had “fundamental, substantive flaws.”

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But Florida isn’t budging.

The state insists on continuing to apply the old Trump definition in its permitting decisions about wetlands, streams and other water features — and has said that at least one project doesn’t need a Clean Water Act permit to damage wetlands and surface waters as a result.

Last year, Florida became only the third state in history behind New Jersey and Michigan to obtain authority from EPA to oversee wetland permitting in the state. The Army Corps of Engineers retains permitting authority in the rest of the country, and EPA reserves the power to veto those permits.

The Florida Department of Environmental Protection says it’s continuing to apply the Trump rule under the State 404 program while it reviews what it says is a “complex and unusual legal situation” around the vacatur of the Trump rule. In an email, Florida environmental officials said they will continue to implement the rule while discussions continue, emphasizing that the Trump-era regulation was in effect when EPA transferred Clean Water Act permitting authority to the state.

The types of wetlands now at risk of being destroyed without a Clean Water Act permit review include shallow, seasonal wetlands surrounding the Everglades that wood storks, a federally threatened species, rely on for food (Greenwire, March 7, 2018).

In a Jan. 31 letter, EPA pushed back on DEP Deputy Secretary John Truitt’s assertion that there’s any confusion or that the Trump rule may be in play.

“In this matter, we disagree,” wrote Jeaneanne Gettle, director of the water division in EPA’s Southeast regional office in Atlanta.

Now that two District Court judges have vacated the Trump rule, Gettle wrote, “the applicable standard is straightforward.” EPA and states like Florida that have wetlands authority, she wrote, should be using Supreme Court precedent and federal regulations and guidance written prior to 2015 to determine when dredging and filling of wetlands requires a Clean Water Act permit.

Gettle also dismissed Florida’s argument that the state has up to a year to make rule changes in response to EPA’s change in what constitutes WOTUS, or two years to make statutory changes.

Likewise, she said, neither the agency’s ongoing rulemaking to redefine WOTUS nor a Supreme Court decision that could narrow the scope of the Clean Water Act affects the state’s obligations to comply with federal statute.

“None of these questions are relevant to Florida’s obligation,” she wrote.

Betsy Southerland, a former top EPA water staffer now with the Environmental Protection Network, recalled what a big deal it was for Florida to be given authority to oversee permitting, noting that the state’s program has to be as protective as — or even stricter than — the federal governments. That, she said, is no longer happening if Florida is implementing the Navigable Waters Protection Rule.

“It’s kind of like a bait and switch; they got the delegation of authority, and now they’re just coming up with their own unique definition of WOTUS,” she said. “This is a big deal because they’re going to permit dredging and filling of streams and wetlands illegally and then leave it up to EPA or citizen suits to stop those activities.”

EPA objections

The ongoing disagreement between Florida and EPA is playing out in decisions about individual projects, throwing into question the fate of wetlands and waterways affected by proposed mines, highway projects and construction.

In recent weeks, EPA has sent at least nine letters to DEP expressing concern about its reliance on the now-defunct Trump rule in projects under review.

In each letter, Gettle called on the state agency to demonstrate how its review complies with pre-2015 regulations that EPA reverted to since last August after announcing it would no longer implement the Trump rule.

One project involves a proposed limestone mine in Lee County east of Fort Myers that environmental advocates say is in essential habitat for endangered panthers. A spokesperson said Troyer Brothers, the company developing the mine, went through a “highly regulated and strict process,” earned numerous state and federal approvals, and is currently reviewing a notice it received from EPA.

When asked about the letters, an EPA spokesperson said the correspondence is part of the federal agency’s oversight of the state’s permitting program and that EPA continues to work with the state to ensure that the program “as a whole complies with the Clean Water Act.”

If EPA objects to how Florida handles a specific project and the state still allows the project to continue, the federal agency could transfer the decision back to the Army Corps of Engineers for processing.

The Florida DEP made at least one formal decision using the Trump WOTUS definition on Dec. 15 and found that no Clean Water Act permit was needed because the roughly 3-acre wetland in Hillsborough County under review “does not maintain a connection to a navigable water downstream it is isolated within an upland.” It’s unclear whether the wetlands reviewed would have been jurisdiction under the pre-2015 rules that EPA wants the state to use. The state’s determination is valid through 2026, according to the documents.

But in the decision, state regulators noted that a new WOTUS determinations may be needed if the federal definition changes or if the physical conditions of the project change.

Southerland said that activities under that determination can now proceed unless EPA decides to take enforcement action or concerned citizens sue over the project.

“The bottom line is the day they receive this, they can start work on a project,” she said.

‘Giveaway’ or ‘WOTUS rollercoaster’?

EPA’s concerns have galvanized environmental groups already suing the federal agency over the way in which it granted Florida permitting authority under the Trump administration.

Those groups had argued that the state isn’t fully staffed to make decisions. DEP in an email said it has nearly 4,000 staff members dedicated to protecting Florida’s natural resources, including 288 workers that help implement its 404 program.

Tania Galloni, the Florida managing attorney for Earthjustice, which is part of the ongoing lawsuit, said EPA’s letters make clear that Florida is violating the Clean Water Act. The state, she added, “got a really narrow, limited interpretation of the Clean Water Act with the Trump rule” and wants to “drag that out as long as they can” to benefit developers.

“Fewer waterways protected by federal law, fewer permits needed: It’s wetlands giveaway day,” said Galloni.

State regulators watching the drama unfold in the Sunshine State are taking a more cautious approach.

Marla Stelk, executive director of the Association of State Wetland Managers, declined to say whether Florida was acting illegally. The court’s vacatur of the Trump rule, she said, was an “unexpected development in a whirlwind of changing federal definitions and debates” around how WOTUS is defined, and the Trump rule arrived just as Florida secured its permitting authority, the first state to do so since 1994.

“The WOTUS rollercoaster has created many problems for multiple states and tribes who are simply trying to do their best to protect their wetland resources — a challenging task to do when the definition keeps changing,” she said.

Association of State Wetland Managers, she added, is “eager for a durable WOTUS rule that is implementable, legally defensible, and protects our critical wetland resources.”

Reporter Ariel Wittenberg contributed.

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