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wetlands
US Court Strikes Down Florida's 'End Run Around the Endangered Species Act'
"Requiring agencies to follow the law is a win for wildlife, protecting habitat and the public alike," said one advocate.
Feb 16, 2024
A federal court ruling will restore "essential guardrails provided by the Endangered Species Act," said one wildlife advocacy group on Thursday, as the court found that under former Republican President Donald Trump, federal agencies broke the law when they allowed Florida's right-wing government to take over wetlands permitting.
The U.S. District Court for the District of Columbia found that the Environmental Protection Agency (EPA) and the U.S. Fish and Wildlife Service (FWS) "made an end run around the Endangered Species Act," said the Center for Biological Diversity (CBD) when they greenlighted Florida Gov. Ron DeSantis' proposal to allow the state to fast-track construction permits for projects on wetlands.
Under Section 404 of the Clean Water Act, states can take over wetlands permitting if they can prove that they will not violate wildlife protections.
Shortly after the EPA transferred the authority to Florida in 2020, CBD was joined by groups including Defenders of Wildlife, the Sierra Club, and Miami Waterkeeper in suing the agency.
This past December, environmental legal group Earthjustice requested a preliminary injunction on behalf of CBD and the Sierra Club to stop Florida from issuing state permits for development projects near the Florida Panther National Wildlife Refuge, where an estimated 120-230 endangered panthers "remain in their last territory on Earth," according to CBD.
The FWS found that the projects were likely to kill between seven and 26 panthers each year as they were pushed out of their habitat and became vulnerable to car collisions on nearby roads, while another three panthers would be otherwise harmed by the habitat loss each year.
“We're talking about the destruction of some of the last remaining habitat for one of the most endangered animals in the world," said Earthjustice attorney Bonnie Malloy on Thursday. "Restoring the Endangered Species Act protections will ensure that these projects get the analysis and review Congress intended to protect threatened and endangered species."
The court ruled on the groups' underlying claim that the EPA's transfer of the authority would violate federal endangered species protections, rather than just issuing a preliminary injunction.
Elise Bennett, Florida and Caribbean director at CBD, called the ruling "a reprieve for critically endangered species like the Florida panther," but warned that "we'll never prevent the extinction of our most vulnerable wildlife unless we stop bulldozing the wild places where they live."
"The Endangered Species Act can save these magnificent creatures, but only if our agencies follow the law. We'll continue to fight sprawling developments that rip apart the precious wetlands and interconnected natural spaces that Florida's most imperiled wildlife need to survive," said Bennett.
Florida Phoenix columnist Craig Pittman called the ruling "huge news for Florida's wetlands, because DeSantis' [Department of Environmental Protection] never said no to a developer."
Elizabeth Fleming, senior Florida representative at Defenders of Wildlife, said that "wetlands are the lifeblood of Florida, providing essential habitat to the world's only population of the critically endangered Florida panther and many other rare and endemic species, all found within one of the most biologically diverse states in the country."
"Requiring agencies to follow the law is a win for wildlife," she said, "protecting habitat and the public alike, as protecting our wetlands also protects drinking water and ecosystems across the state."
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Complying With Right-Wing Supreme Court, Biden EPA Guts Wetland Protections
"Congress and local elected officials must now step in and do more to protect clean water through durable legislation and state-based action," said one advocate.
Aug 29, 2023
Under a U.S. Supreme Court ruling condemned by clean water advocates earlier this year, the Environmental Protection Agency on Tuesday announced a revised rule that could clear the way for up to 63% of the country's wetlands to lose protections that have been in place nearly half a century under the Clean Water Act.
EPA Administrator Michael Regan said he had been "disappointed" by the 5-4 decision handed down in Sackett v. Environmental Protection Agency in May, but he was obligated under the ruling to issue a final rule changing the agency's definition of "waters on the United States."
As Common Dreams reported, the high court ruled in May that the Clean Water Act protects waters and wetlands that have a "continuous surface connection to bodies that are waters of the United States in their own rights," such as major rivers and coastlines.
Prior to the ruling, the Clean Water Act protected wetlands as long as they had a "significant nexus" to regulated waters, but the EPA rule removes that test from consideration when determining if a waterway should be protected. The rule will leave streams and tributaries—and the communities adjacent to them—without protections from pollution that can be caused by housing and business development, mining, pipeline construction, and a number of industries.
The ruling and resulting EPA rule reflected "the Supreme Court's disturbing pattern of striking down environmental regulations to serve industry interests," said environmental law group Earthjustice on Tuesday.
An EPA official toldThe Washington Post that an estimated 1.2 million to 4.9 million miles of ephemeral streams across the U.S. would immediately lose protections now that the final rule has been issued.
Julian Gonzalez, a water policy lobbyist with Earthjustice, told the Post that changing the rule is "not necessarily what they want to do" at the EPA, while Patrice Simms, the group's vice president of litigation for healthy communities, called the court's ruling a "politically motivated decision" that "ignores science and flies in the face of what almost everyone knows: that we all need clean water."
"The Supreme Court's right-wing supermajority's disastrous ruling in Sackett v. EPA reduced EPA's ability to protect our wetlands and waters from destruction and contamination," said Simms. "The new rule from EPA adjusts its existing regulations to comport with Sackett and reflects our dangerous new reality—one where mining companies, Big Ag fossil fuel developers, and other polluting industries can bulldoze and fill wetlands indiscriminately, harming our public health and ecosystems."
With state regulatory agencies and legislatures now empowered to determine how wetlands are protected, Earthjustice said waterways in states including Texas, Kentucky, Oklahoma, and Colorado are the most vulnerable to industrial pollution. States including Vermont, New York, and Minnesota currently have some of the strongest protections in place.
Marc Yaggi, CEO of Waterkeeper Alliance, said that with the climate and pollution crises becoming increasingly destructive, "there could not be a worse time to weaken the Clean Water Act."
"Intensifying droughts are wreaking havoc on agriculture, pollution and toxins are increasingly threatening water sources nationwide, and millions of people are contending with dangerously contaminated drinking water," said Yaggi. "Congress and local elected officials must now step in and do more to protect clean water through durable legislation and state-based action."
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EPA Proposal Could Embolden Industry to 'Destroy Wetlands and Pollute Our Waters'
"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," noted one lawyer.
Jul 19, 2023
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.
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