When the U.S. Environmental Protection Agency handed over authority to permit sensitive wetlands to the state of Florida last month, the federal agency made the deal effective immediately.
Opponents of the hurried move to give the state power to build on the sensitive lands now say that violates federal rules.
“They are running so fast that they're tripping and they're taking shortcuts. And that's really sort of the bottom line,” said Tania Galloni, an attorney with Earthjustice. “What they have done is just try to make the program effective immediately without following the process as required by law.”
Under rules used when the EPA granted the same authority to Michigan and New Jersey — the only other states in the U.S. to take control of permitting their own wetlands — the state must wait 30 days after publishing its decision in the Federal Register to assume control.
But in Florida’s case, the EPA used a different process, the agency said in a letter in response to Earthjustice’s challenge. Rather than creating a rule that required a 30-day delay, the agency said the Florida decision was an adjudication. Florida applied for the transfer in August. The decision was finalized Dec. 22.
Galloni says switching procedures was a move to fast-track the handoff before a new administration takes over the White House on Jan. 20.
“With an adjudication, typically there's a dispute. There's a dispute between two sides and an agency comes down one way or the other,” Galloni said. “That's not what this is. So I don't know why they're taking that position now. All I know is that they're not following the process that's in place and it's very clearly laid out.”
The state will also not be required to consult with the state’s Miccosukee and Seminole tribes under the change. More than half the wetlands permitting that has occurred in Florida has taken place inland, in marshes near tribal land.
“The tribes were both blindsided by this decision to make that transfer because the definition of what is [American] Indian territory is still under debate between the tribes and EPA and the Army Corps,” Betty Osceola, a member of the Miccosukee Tribe, told WLRN’s Luis Hernandez on Sundial. “The tribes have agreements with the state and federal governments, and yet those agreements are being broken.”
When asked about the challenge, a Florida Department of Environmental Protection spokesperson provided a copy of a letter from FDEP Secretary Noah Valenstein notifying the Corps that Florida had taken over the program.
Critics of the state’s move to take over permitting worry Florida’s environmental regulators have too few resources to carry out the complicated work. They say state control could also make permitting vulnerable to political influence.
The state has talked about taking over the cumbersome process, required under the Clean Water Act, since the 1990s. In 2005, Florida legislators voted to push forward and asked environmental regulators to initiate the takeover.
But in a 2005 report in response to the law, FDEP took a look at what it would take and decided the state would be better off expanding its own permitting rather than replacing federal efforts.
The state had tried overseeing permitting, in a pilot program for four North Florida counties in the 1990s, and found the effort more than doubled the workload for the agency. Determining which lands remained under federal control and which fell under the state also complicated the process, the report found. Federal permits only lasted five years, while state permits expired after 25 years, a key distinction for large, long-term projects.
Over the years, the state’s ability became even more tenuous. The environmental agency was dramatically down-sized under former Gov. Rick Scott, when he eliminated about a sixth of the staff. In its application to the EPA, FDEP said it planned to use existing employees and not expand.
In response to questions, the FDEP said the agency has started reviewing permits but has not yet issued any.
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