Does Florida’s Plan to Take Over the Federal Wetlands Permitting Process Hold Water?

On December 17, 2020, two years after the Florida legislature overwhelmingly passed a bill serving as an initial step to promote the transfer of permitting authority from the U.S. Army Corps of Engineers to the state of Florida, the U.S. Environmental Protection Agency (EPA) granted the Sunshine State’s request and approved a plan transferring federal authority to the state to issue permits for projects affecting the state’s wetlands. Florida will be only the third state in the United States to be granted such broad permitting authority over wetlands under the federal Clean Water Act, and the first state to receive it in decades.

The permits relate to dredging and filling projects governed by Section 404 of the federal Clean Water Act, typically undertaken in and near the Florida wetlands for the purposes of building commercial developments, homes, infrastructure, and public utility facilities as Florida’s population has multiplied. Florida is currently home to about a fifth of the entire country’s wetlands, which includes the Everglades.

Proponents of the new plan have argued that it would reduce an already expensive and redundant federal and state permitting process; according to the Florida Department of Environmental Protection (DEP), roughly 85 percent of the federal and state permitting process overlaps. Proponents further argue that the plan gives the state more control over decisions directly affecting its land and its local economy.

“We are pleased that with the assumption, Florida scientists and permitters will now be accountable for state and federal wetlands permits,” explains Florida’s secretary of the DEP in a public statement.

Although some environmental groups have issued praise concerning this rare transfer of federal power, other environmental groups opposed the plan. Other groups have claimed that Florida’s proposed program following the transfer of federal permitting authority would actually reduce protections for the Florida wetlands because it does not comply with federal environmental laws, a claim the Florida DEP has disputed. Opponents are also concerned that the state’s DEP does not have the necessary manpower or funding that a federal agency would have to head the permitting process. A group of environmental advocates has vowed to commence a legal challenge to the permitting transfer plan and sponsor a constitutional amendment that would nullify the plan.

The debate over whether federal or state authority is preferable in the context of environmental protections is by no means new. Whether the transfer of permitting power will promote more efficient, local stewardship and restoration of Florida wetlands or, conversely, foster excessive development and degradation remains to be seen, however.