Section 404 of the Clean Water Act: What is it and Why Do We Care?

The state of Florida made a recent grab for federal Clean Water Act authority through a pair of bills, one in the Senate and one in the House. These two bills seek to transfer authority over section 404 of the Clean Water Act from the U.S. Army Corps of Engineers over to the State of Florida. This part of the law requires permits for any discharge of dredge and fill materials into “Waters of the United States” (wetlands, streams, rivers, canals, you get the idea).  The rationale? The state has more expertise and capacity to oversee the Section 404 permitting program which governs which dredge and fill materials may be discharged into “Waters of the United States.” Such waters include wetlands - essential ecosystems for coastal protection, water quality, and habitat. We, here at Miami Waterkeeper, think this would be a very bad idea.

Earthjustice submitted a letter on behalf of Miami Waterkeeper, and other environmental organizations, regarding the Army Corps of Engineers’ jurisdiction over Florida’s waters. Miami Waterkeeper’s official stance is that the U.S. Environmental Protection Agency (EPA) should allow the Corps to maintain its jurisdiction over Florida’s waters rather than grant the state’s request for jurisdiction.

The big issue here is Section 404 of the Clean Water Act (CWA). Florida Waterkeepers banded together to submit a letter in support of Earthjustice’s position. In this letter to the Corps, the Waterkeeper organizations write, “Florida has particularly fragile and critical areas that are regulated by Section 404 dredge and fill permits, and which require the highest level of review and scrutiny.” The federal government is best able to achieve this necessary level of scrutiny and review due to their historic agency expertise and resources.

The fact of the matter is, the Florida Department of Environmental Protection does not have the resources to undertake this massive permitting responsibility. Nor does the agency have the intention to allocate any funding towards the training of new staff and other new resources required for a responsible permitting process. The state merely wishes to streamline a process specifically put in place to protect our valuable natural resources. The problem is that their version of streamlining will actually, in turn, weaken the process.

On the issue, the Waterkeeper organizations have this to say:

“The federal authority to govern our waters has its origins in the Commerce Clause of the Constitution due to the central role out waterways and seas play in interstate commerce. Traditionally, wetlands have been subject to federal jurisdiction as well due to their critical role in providing watershed connectivity. A such, we strongly believe that CWA authority should remain with the federal government and any delegation to the state would be inappropriate and incongruous with the spirit of the law. Our organizations vehemently oppose the state of Florida’s attempt to assume jurisdiction.”

These comments are supported by Florida Wildlife Federation, the Conservancy of Southwest Florida, the St. Johns Riverkeeper, Matanzas Riverkeeper, Suncoast Riverkeeper, Calusa Riverkeeper, Emerald Coastkeeper, Lake Worth Waterkeeper, Tampa Bay Waterkeeper, Suwannee Riverkeeper, Indian Riverkeeper, Apalachicola Riverkeeper, and Collier County Waterkeeper

UPDATE:

The Florida Department of Environmental Protection is currently undertaking rule development related to their intention to apply for authorization to assume jurisdiction over wetlands permitting under Section 404(a) of the Clean Water Act. Earthjustice is again submitting comments on behalf of Miami Waterkeeper, and other organizations, asking the state to abandon rulemaking at this time.

Miami Waterkeeper spearheaded an effort on behalf of Florida Waterkeeper organizations to submit a supplementary comment letter in support of the Earthjustice letter. The Florida Waterkeeper organizations also oppose rulemaking and any attempt by the State of Florida to assume Section 404 permitting authority from the federal government.

Read the Earthjustice letter HERE. Read the Florida Waterkeeper letter HERE.