An environmental law group on Wednesday sounded the alarm over a proposed Biden administration rule intended to "streamline and clarify the requirements and steps necessary for states and tribes to administer programs protecting waterways from discharges of dredged or fill material without a permit."
Earthjustice warned in a statement that the new U.S. Environmental Protection Agency (EPA) proposal—for which the administration will now accept and consider public comment—could "allow more pollution and reckless development" in U.S. waterways and wetlands.
The rule pertains to Clean Water Act (CWA) Section 404 permitting. While the U.S. Army Corps of Engineers administers it for most of the country, three states—Florida, Michigan, and New Jersey—have been granted the authority to run their own programs with federal oversight.
"EPA must ensure protections for waters and affected communities remain in place through this process, rather than just respond to states' and industry predilection."
However, as E&E Newsreported in May, "at least two Republican-led states, Alaska and Nebraska, and one led by a Democrat, Minnesota, are on a quest to oversee a dredge-and-fill permitting program that influences construction projects with implications for federally protected waters."
E&E News noted that the EPA confirmed it was "having discussions with the trio of states about the possibility of shifting primacy over the permitting program" as the agency continued to work on the proposal that was unveiled Wednesday.
EPA Assistant Administrator for Water Radhika Fox said Wednesday that the pending rule "will support co-regulator efforts to administer their own programs to manage discharges of dredged or fill material into our nation's waters."
Meanwhile, Julian Gonzalez, senior legislative counsel for Earthjustice's Healthy Communities program, argued that "EPA must ensure protections for waters and affected communities remain in place through this process, rather than just respond to states' and industry predilection without considering the pitfalls and reduced water protections that may follow."
"Most recently we have seen states like Florida work with the Trump administration, cutting corners to unlawfully take this permitting authority from federal agencies, with disastrous consequences," he said. "It is up to EPA to ensure that it will not happen again. Florida will not be the last state that tries to erode federal oversight of our waters and wetlands by taking over 404 permitting while avoiding accountability."
During former President Donald Trump's final months in office, Republican Florida Gov. Ron DeSantis—now one of Trump's competitors for the GOP's 2024 presidential nomination—successfully sought to assume control of 404 permitting for the state, which outraged green groups including Earthjustice.
As Bloombergreported in April:
The takeover was a big bet that states can both streamline development and better control water pollution than the federal government can. It has provided an early window into how DeSantis might view environmental regulation as president if he decides to run.
But two-and-a-half years into the state takeover, it isn't yet the deregulatory panacea state officials and the EPA had hoped for.
Gonzalez asserted Wednesday that "EPA must retain robust oversight of the 404 permitting process, set strong minimum standards that all states must meet before they can assume a 404 program, and ensure this rule does not result in lesser federal protections under the CWA and other protective laws triggered by federal permits, like the Endangered Species Act."
"EPA must ensure that the final version of this rule reflects the concerns of affected communities, which have been fighting attacks on the Clean Water Act, and who have not been consulted on this issue at all," he added. "A weak framework for 404 assumptions will further embolden the industry's deregulatory agenda to destroy wetlands and pollute our waters in the name of profit. We look forward to giving EPA additional feedback on this important rule."
The EPA proposal comes after the U.S. Supreme Court's right-wing majority in May issued a ruling in Sackett v. EPA that Earthjustice called "a catastrophic loss for water protections across the country and a win for big polluters, putting our communities, public health, and local ecosystems in danger."
The high court was criticized for taking the case as the EPA was working on a new "waters of the United States" (WOTUS) rule that was finalized in December—and which Republicans in Congress, with the help of a few Democrats, recently tried to kill, provoking a veto from Biden.
Despite the veto, congressional opponents of Biden's WOTUS rule have not given up. The GOP-controlled U.S. House Appropriations Committee Appropriations on Wednesday approved a sweeping bill for fiscal year 2024 that would repeal the policy.
