MWK Joins Comment on EPA’s Discretionary Approval Under Clean Water Act Section 404

The Florida Department of Environmental Protection (FDEP) has attempted to assume regulatory authority of Section 404 of the Clean Water Act (CWA) from the Environmental Protection Agency (EPA): the section which requires permits for any discharge of dredge and fill materials into Waters of the U.S., including rivers, canals, and wetlands. To assume authority of the Section 404 program, a state must provide the EPA with a number of statements, memos, and an approval request before submitting to a review period. During this process, the FDEP requested EPA consultation as to Endangered Species Act (ESA) Section 7, claiming its CWA Section 404 assumption required such a consultation. But the EPA doesn’t think so.

Wetlands in Boynton Beach, FL (Source: The Mitigation Banking Group, Inc.)

The ESA was created to provide protection and conservation of endangered species, specifically through the protection of ecosystems. Section 7 of the ESA establishes regulatory measures to ensure agency compliance with ESA goals and mandates, including an interagency consultation process aimed at boosting agency conformity with their duty to avoid jeopardizing endangered species or destroying critical habitats. 

FDEP asked for Section 7 consultation as part of its request to assume CWA Section 404 permitting responsibility, claiming EPA approval or disapproval of its assumption is an “action” under ESA Section 7(a)(2). The EPA thinks such a consultation is not required and filed a notice and request for comment on the issue.

Miami Waterkeeper, along with other environmental advocacy organizations, joined an Earthjustice comment expressing the necessity of a Section 7 consultation here. Especially given the substantial administrative overhaul and environmental impact ahead if the FDEP assumes Section 404 CWA permitting authority. Florida is home to an extensive list of species and vast waterways, many of which are subject to ESA consultation. Further, a one-time ESA consultation, as requested by the state of Florida, is minimal. Assuming Section 404 permitting power will require site-specific determination as to whether dredge and fill activities would jeopardize endangered species and critical habitats.

Protecting Florida wildlife is not a one-off. Miami Waterkeeper stands with Earthjustice, Florida Wildlife Federation, Conservancy of Southwest Florida, St. Johns Riverkeeper, Columbia Riverkeeper, Waterkeeper Alliance, Center for Biological Diversity, and Natural Resources Defense Council in comments submitted for EPA review. 

Read the Earthjustice letter HERE.

Read the EPA’s request for comment HERE.

Read more about our previous work on this issue HERE.