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Federal court ruling could compel FL to pause on permitting dredge and fill of wetlands

Source: Southwest Florida Water Management District

Posted on September 10, 2021

Protecting wetlands and waterways should not be at the broad discretion of states such as Florida that were granted permitting authority in the final days of the Trump administration, says a national environmental law organization, citing a sweeping Aug. 31 federal ruling limiting states’ authority.

The ruling in U.S. District Court in Arizona tosses out the federal “Navigable Waters Protection Rule” (NWPR) that limited which waters are subject to regulation under Section 404 of the federal Clean Water Act.  Judge Rosemary Marquez ordered the rule be vacated, restoring a previous rule that requires protective regulation of many more bodies of water than did the new rule.

With that new NWPR vacated, some recent Florida-based decisions about dredging and filling wetlands are unlawful, contends Earthjustice, which wants the Florida Department of Environmental Protection to hit pause on state-authorized dredging and filling until those activities are reviewed in light of the federal ruling.

In a separate lawsuit filed in January, Earthjustice challenges a Trump-era decision to transfer wetlands permitting from the U.S. Corps of Engineers to the State of Florida, which a group of prominent environmental groups say would be less protective. That suit, still pending, seeks to strip the state of its newly granted authority over wetlands permitting and give it back to federal authorities.

While Florida remains in charge of wetlands permitting for now, Earthjustice cautioned new Florida DEP Secretary Shawn Hamilton that the Aug. 31 federal ruling curtails the state’s power and renders some state-issued permits unlawful.

“Vacatur of the rule restores broader coverage of waterways under the Clean Water Act as existed in years past,” says Earthjustice’s Sept. 1 letter, written by Managing Attorney Tania Galloni and attorneys Bonnie Malloy and Christina Reichert.

“The court’s vacatur of the NWPR as unlawful requires that DEP immediately re-assess the scope of waterways in Florida covered by Section 404,” the letter continues. “This will have considerable impacts in Florida and on the state’s duties under federal law. It is therefore critical that DEP act immediately to ensure protection of all waterways covered by the Clean Water Act.”

Specifically, the letter urges Hamilton to immediately notify the regulated community – aka developers – of the Aug. 31 court ruling and its ramifications for their projects; block dredging and filling of projects that are rendered unlawful under the new rules; and stop issuing permits pending further review of the state’s jurisdiction.

DEP has not yet replied to a request for comment.


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