Waterkeepers Florida 404 update

Earthjustice, on behalf of a number of national and Florida-based conservation and environmental organizations including Miami Waterkeeper, has filed a Motion for Partial Summary Judgment in its suit to stop the U.S. Environmental Protection Agency’s (EPA’s) greenlighting of the state of Florida’s assumption of permitting authority under Section 404 of the Clean Water Act (CWA).

The Motion maintains that EPA, by hurriedly reviewing Florida’s application and hastily granting it authority, failed to follow necessary procedures that would make its attempted transfer of CWA § 404 permitting authority to the state of Florida legally effective. The Motion requests the Court issue a judgment finding the immediate effective date for Florida’s 404 program unlawful, the transfer of authority unlawful, and to set the transfer aside.

The suit, filed in the U.S. District Court for the District of Columbia in January 2021, alleges EPA skirted procedural requirements in allowing the Florida Department of Environmental Protection to assume § 404 authority.

Section 404 established a federal program that issues permits when developers and others want to dredge and fill certain waters of the United States, including sensitive marshes, cypress forests, ponds, and other wetlands. Only two other states, Michigan and New Jersey, have undertaken the assumption of this authority from the federal agency, making Florida—with its vast sprawl of precious and protected waters and wetlands—the third state to ever manage its own federally-delegated dredge and fill permitting program.

Miami Waterkeeper Dr. Rachel Silverstein has also filed a legal declaration in support of Earthjustice’s Motion in which she highlights specific harms organizations like Miami Waterkeeper have and will continue to suffer as a result of EPA’s illegal transfer of 404 authority to the state of Florida. For example, fast tracking this assumption threatens cherished Florida wildlife areas and parks, including Oleta River State Park and Biscayne Bay, which are both adjacent to the Northern District Wastewater Treatment Plant Expansion project. Clean Water Act Section 404 permits for this project have already been transferred to FDEP, an agency without the resources or intent to adequately assess and consider environmental impacts of dredging and filling in these types of large-scale construction projects.

To learn more about the suit, read the press release HERE.
Read the full filed Complaint HERE.
Read Plaintiffs’ Motion HERE.
Read Silverstein’s Declaration HERE.
Learn more HERE in this 404 Factsheet.