Posted on July 14, 2016
By Jensen Werley, JBJ
The U.S. Army Corps of Engineers has responded to a challenge of its state permit for dredging the St. Johns, saying it never intended to apply for that permit.
The St. Johns Riverkeeper has challenged the Corps‘ Florida Department of Environmental Protection permit because the group believes the Corps will violate state water quality protections.
That challenge has raised the question of whether the Army Corps has immunity from state law because its a federal agency. The argument that it is immune worries the Riverkeeper, which says it signals that the Corps believes it is not accountable to state water quality laws.
Lawyers for the Army Corps argue that the St Johns Riverkeeper stance is erroneous, according to a letter to the court. In fact, it argues that it didn’t need a permit at all.
The state permit it applied for is the Corps and the FDEP “merely using an established state process to meet federal requirements” in the Clean Water Act and Coastal Zone Management Act, which has limited waivers of sovereign immunity.
Lawyers say the Corps submitted an “application” to FDEP solely to use the permitting process as a vehicle to get a state Water Quality Certification.
“Thus, the Corps’ actions are not contrary to its governing regulations,” the letter states.
It goes on to say that the state can agree that it has been consistent with protection programs, or object. If it objects, the project can still proceed if the federal agency concludes the proposed action is consistent with enforceable protection policies.
The Army Corps’ letter concludes saying the extent which it must be subject to enforcement proceedings is a matter of federal law, and that furthermore, while there are tensions between state and federal interpretations of the law, there is none in this particular case.
Source: JBJ
