In 2020, Florida became just the third state–and the first in decades–to take over management of a key federal Clean Water Act program. The state now decides whether companies can fill wetlands or waterways for projects that range from mining to housing development to roads and bridges.
Several other states are looking to follow suit. These officials claim that state agencies can issue permits faster than federal bureaucrats. This allows them to speed up critical projects while following federal law.
” Our economy is based upon natural resource extraction, development,” stated Jason Brune, the commissioner of the Alaska Department of Environmental Conservation. The department is seeking to take over the program. It is vital to have predictability and consistency when granting permits. “
But environmental groups say state regulators are ill-prepared to take on this authority, claiming such efforts are thinly veiled attempts to rubber-stamp development with little regard for its ecological damage.
And some states recently have backed off their attempts to assume permitting control of the federal Clean Water Act program, known as Section 404, citing prohibitive cost estimates and murky jurisdictional guidelines.
“We have Clean Water Act because the states screwed up the first round,” Janette Brimmer, senior lawyer with Earthjustice (a non-profit environmental law group) stated. She has filed a lawsuit against Florida in this matter. “The only reason for these states to argue for local control is to have dirtier water. “
Some critics fear that Florida’s move could open the floodgates for more states to claim Section 404 authority, as Alaska, Minnesota and Nebraska are considering. However, the obstacles that have largely impeded such efforts over decades–high costs, legal challenges, and changing federal regulations-–remain significant.
The outcome will decide who is responsible for protecting waterways and millions upon millions of acres of wetlands.
The U.S. Army Corps of Engineers is in charge of the Section 404 program’s day-to-day operations and permit decisions, while the U.S. Environmental Protection Agency develops criteria used in evaluating permit applications and reviews individual applications with the authority to deny them.
States have long had the option to assume control of the Section 404 program, along with other components of the Clean Water Act. Michigan took over permitting in 1984, and New Jersey followed suit a decade later. While many states have considered taking control in the decades since, none did until Florida in 2020.
“There are a lot of states that looked at the 404 program and decided the costs were going to be too expensive,” said Marla Stelk, executive director at the National Association of Wetland Managers, a nonprofit group that represents state and tribal regulators. It requires extra staff and extra resources but can result in a more efficient permitting process. “
Under the Trump administration, federal officials encouraged states to apply for control. The Florida bid was approved weeks before President Donald Trump’s departure. Officials from the state hailed this move as a step towards local accountability and better efficiency.
But critics claim that the transfer has not gone as planned. Florida initially asserted it could take on the program without needing additional money, but state lawmakers this year approved the agency’s request to fund 33 new positions for water resource management.
” It’s been a complete show,” stated Bonnie Malloy (a senior attorney at Earthjustice) and a former employee of the Florida Department of Environmental Protection. “The goal is to say yes to developers as quickly as possible. ‘”
The agency refused to give an interview. Former state Rep. Holly Raschein, a Republican who sponsored legislation authorizing the transfer in 2018, defended the department’s management.
“I believe that DEP and our capability to oversee these matters,” she stated. “We waded into this as the guinea pig for other states in the nation, and it doesn’t surprise me that we’re working this out. People who expect to see a perfect piece in public policy are not realistic. DEP has every right to seek help when they need it. “
Meanwhile, Florida is defying federal court rulings and directions from the EPA about which waters require a permit: Although federal District Court judges in Arizona and New Mexico struck down a Trump-era rule limiting the streams and waters protected by the Clean Water Act, Florida is still using the old Trump-era definition. According to E&E News, officials there claim they are still using the old definition while they examine the legal situation.
Environmental watchdogs say Florida’s defiance of the rule violates its obligation to run the Section 404 program at a standard that meets or exceeds federal protections. Earthjustice is leading a lawsuit claiming Florida and the EPA made procedural errors in transferring authority. This lawsuit seeks to bring the program back under federal control.
In a statement, EPA stated that it supports state efforts to control permitting. It said only that it would “continue working with Florida to ensure consistency.” “
‘We’re open for business’
Other states are also considering taking over this program. Alaska lawmakers voted in 2013 to give state regulators the authority to pursue control, but the state put that on hold when a drop in oil revenues shrank its budget. Gov. Mike Dunleavy (a Republican) is trying to revive this effort.
He’s pressing legislators to approve $4.9 million to fund 28 positions at the Department of Environmental Conservation, which would begin a two-year process to take over Section 404.
“This was what my group of scientists believed would be required,” stated Brune, the commissioner of the department. “(That cost is) a drop in a bucket for a state which depends on natural resources extraction to show it’s open for business. “
Many business and industry associations have supported Alaska’s efforts, citing long wait times for federal permits.
But other Alaska groups are concerned that the transition could prove to be dangerous. Guy Archibald, executive director of the Southeast Alaska Indigenous Transboundary Commission, a consortium of tribal nations, said that the state’s funding and staffing estimates are so insufficient that they seem “designed to fail. “
He said that Alaska Natives are concerned that ineffective state oversight might lead to water quality problems, which could result in the loss of subsistence living standards that many depend on.
” These wetlands provide food security for many communities and villages,” Archibald stated. “Commercial food is extremely expensive and poor quality. “
At present, federal agencies issuing permits under the Section 404 program must first consult with affected tribes. Critics worry that tribes could be pushed to the margins by a state takeover.