On August 20, 2020, the state of Florida asked the EPA to grant the state control over dredge and fill permitting, also known as Clean Water Act (CWA) 404 Permitting. This permitting authority has traditionally been left to the U.S. Army Corps of Engineers' jurisdiction. Such a decision could present a real threat to waterways, wetlands, and the wildlife that depend upon these habitats.
Miami Waterkeeper and its partners–the Center for Biological Diversity, Defenders of Wildlife, Sierra Club, Conservancy of Southwest Florida, Florida Wildlife Federation, and St. Johns Riverkeeper– filed a 60-day notice of intent to sue for violations of the Endangered Species Act (ESA) for failing to comply with the terms of the ESA in undertaking the wetland permitting rulemaking process.
The Endangered Species Act creates clear procedures for federal agencies to follow when their actions might have an effect on endangered species or critical habitats. The ESA states: “Any possible effect, whether beneficial, benign, adverse or of an undetermined character, triggers the formal consultation requirement...” That is, the ESA requires that federal agencies consult with one another when there are any possible impacts to listed species.
Dredging and filling, activities covered under CWA Section 404, can devastate habitats and the species that depend on them. The partners argue in their notice of intent to sue that Florida’s request to control permitting triggered the EPA’s legal obligation to investigate the potential environmental effects to listed species.
The partners argue that the EPA sidestepped its legal obligation in relying on the US Fish and Wildlife Service’s (FWS) determination that the change would have “no effect” on protected Florida species. The evaluation by FWS contained a woeful number of shortcuts and used so narrow a scope that they didn't come close to fulfilling the requirements set by the ESA.
Our coalition will continue to advance this legal challenge in order to hold the EPA accountable when it falls short of its legal obligations set by the ESA.