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A Threat to America’s Wetlands: Center for Biological Diversity et al. v. Environmental Protection Agency (EPA)

Picture of wetlands above a text quote

The Environmental Protection Agency (EPA)’s job is to protect ecosystems, endangered species, and human health. Yet a December 2020 decision from the EPA abandoned that duty by handing permit approval rights from the EPA to the state of Florida, which will allow the state to approve wetland projects without EPA review. The EPA did so without any guarantee that Florida will be able or willing to take on that task. 

Environmental groups argue that this decision is not only disastrous for the environment, but also illegal. And if allowed to move forward, Florida’s assumption of the permitting process will threaten the local ecosystem and endangered species population—and open the door for other states to do similar harm. 

The Permitting Process 

To understand this case, it’s important to understand how the permitting process normally works. Under the Clean Water Act, the EPA is tasked with regulating pollution and water quality. When a developer wants to build on or remove parts of wetlands, they have to request a permit from the U.S. Army Corps of Engineers, who partner with the EPA in the permitting process.  

These projects can have a significant impact on the ecosystem: they may damage the broader 'aquatic environment' or impact endangered species.

The permitting application process is an essential step in ensuring that any potential impact is identified, analyzed, and treated. That’s because these projects can have a significant impact on the ecosystem: they may damage the broader “aquatic environment” or impact endangered species. During the permitting process, the EPA and the U.S. Army Corps of Engineers figure out what the project’s environmental impact will be and how to reduce it. If projects don’t meet the EPA’s standards, it’s because they'll damage the wetlands, often permanently. In these instances, permits are rejected. 

Although the right to determine who receives permits rests with the federal government, the Clean Water Act includes a provision allowing states to apply to take over the process. To do so, a state must show that their permitting process is able to go above and beyond the federal one, that it is as rigorous and protective of the wetlands as the federal process, and that they have adequate funding to manage it. Put simply, the state must demonstrate that it is able to shoulder the responsibility of this permitting by producing a detailed, protective plan that complies with federal law before the EPA can give them permitting power.  

Previously, only two states have taken over the permitting process: Michigan in 1984 and New Jersey in 1994. The reason so few states have taken over this process is the difficulty of meeting the EPA’s approval standards alongside the cost of overseeing and implementing the program. In fact, in previous years, Florida had twice considered applying but decided not to because of the costs and liability concerns.   

Florida’s Clean Water Act Permitting Application and Its Implications 

Last year, Florida sought EPA approval to take over the Clean Water Act permitting program. They asked the Trump administration for permission in August 2020, and it was granted in December.  

Plaintiffs say that the EPA was wrong to approve Florida’s application at all—regardless of whether they followed the process correctly—because Florida simply did not show that it is able to shoulder this important burden.

The plaintiffs in this case have pointed out several problems with how the EPA made its decision. Some are technical: for example, Florida and the EPA did not follow the required timeline during the application process. More significantly, however, plaintiffs say that the EPA was wrong to approve Florida’s application at all—regardless of whether they followed the process correctly—because Florida simply did not show that it is able to shoulder this important burden.  

  1.  Florida didn’t explain how they would pay for the program. Florida was required to prove that they could afford to take on this responsibility. Their response to the EPA was that they “could rely on existing resources,” a claim they failed to support with any evidence. Not only is that inadequate under the law, but  given the timing of the application—during a pandemic, when state and local budgets are already strained—it’s not clear that Florida has the resources to develop and oversee the process.  
  2.  Florida’s laws are often less protective than federal laws, and Florida didn’t explain how the state would ensure that its permitting process was up to federal standards. For example, the case notes that unlike the EPA’s permitting process, Florida’s will allow a “wholesale exception for temporary violations of state water quality standards.” This violates the condition that a state’s permitting program be as strict, or more, as the federal government’s. It is also an environmental problem. By giving Florida this authority, the EPA is allowing developers to violate water quality standards without any legal liability. 
  3.  Florida’s application process also threatens endangered species that rely on the affected wetlands. The plaintiffs argue that Florida has created a “workaround” around federal laws protecting endangered species, by (a) approving the application despite its impact on such species and (b) unlawfully protecting developers from liability.  

    Evidence suggests that the EPA downplayed the impact of this decision on endangered species and changed their assessment to allow the application to go through. The EPA first stated that a species in danger of extinction, shortnose sturgeon, was likely to be harmed if Florida took over permitting. That decision was important: it should have forced Florida to put a plan in place to protect the sturgeon. But the EPA later claimed that the permitting process would have “no effect” on the sturgeon, and relied on that decision when approving the application. This inconsistent decision-making is illegal and threatens all types of wildlife.

    This change in policy will also allow developers to destroy ecosystems while shielding them from negative consequences. Under the traditional permitting process, the developer gains protection from liability as long as their environmental impact remains within defined limits. The decision to give Florida permitting authority, however, gives developers protection from liability without limiting how much harm they can do to endangered species. This means that when developers do destroy communities and ecosystems, they’ll have done so with the government’s permission, making it almost impossible for Florida citizens who are impacted to fight back.  

Beyond the legal issues raised in the complaint are fears of political bias: Florida developers donate extensively to state politicians, and outside groups worry that those relationships will play a role in permitting decisions. As Tania Galloni, Earthjustice’s managing attorney describes it, “Developers have called this the ‘holy grail’ because it would make it easier, faster, and cheaper for them to get permits for big projects with less oversight and accountability for environmental impacts.”  

Broader Concerns 

Florida’s assumption of permitting is significant in itself; Florida has more wetlands than any state (other than Alaska and Hawaii). But environmental groups also worry that this could set a precedent that other states could take advantage of.  

In December, EPA Administrator Andrew Wheeler explicitly called for other states to “take advantage of this opportunity and move forward with their own applications.” This is concerning because Florida’s application process was significantly easier than processes states had previously faced, since Florida did not have to detail how it would fund the program and omitted key parts of its plan to ensure compliance. Allowing this laxer standard will encourage other states to assume permitting responsibilities under substandard programs, further eroding environmental and endangered species protection. 

Our Stance 

The League of Women Voters support the Center for Biological Diversity and all those fighting the EPA’s 2020 decision. The preservation of our Earth’s ecosystem is an essential component of public health and the environment. Learn more about our stance on protecting our environment here.