A move by the Trump administration to hand Florida control over a key review required for dredging and filling vanishing wetlands has failed to pass muster with appellate judges.
In a ruling late Friday, a federal appeals court in Washington upheld a lower court decision, concluding that in delegating authority to Florida, federal authorities “abdicated” their duty to protect wildlife in a state with the third highest number of endangered species.
The change, the court said, “enabled Florida and the recipients of its permits to evade the [Endangered Species Act’s] exacting procedures for protecting listed species.”
READ MORE: Florida Plan Would Ease Wetlands Permitting. That's A Problem, Environmentalists Say
Environmentalists who sued the U.S. Environmental Protection Agency and the Florida Department of Environmental Protection worried the rushed move, made amid the Covid pandemic shutdown, would lead to increased harm to protected species and continue shrinking wetlands even as climate change highlights their critical role in flood control.
“The court just reaffirmed what we knew all along: this was just not lawful,” said Jason Totoiu, an attorney with the Center for Biological Diversity. “The court saw through that. And they saw that this was essentially an end-run around the Endangered Species Act.”
In response to WLRN, an FDEP spokesperson said the department “is disappointed by the court’s ruling and is reviewing the decision to determine next steps.”
In its 2020 application, the state sought to speed up permitting by taking control of reviews that protect wildlife when wetlands are polluted or paved over. In all but two other states, the U.S. Army Corps of Engineers enforces those reviews. FDEP said in its application that it planned on using existing staff for the additional reviews: nearly 230 employees who also manage state environmental reviews. For permitting work, the state planned on re-assigning 18 employees, who earn about $35,000 a year, according to an analysis submitted with the application.
That plan left critics worried the over-burdened agency would struggle with the new workload and be vulnerable to political pressure for big projects. Over the last decade amid layoffs and shrinking staff, violations have dropped by more than a third.
In the past, the state had also rejected assuming control of the cumbersome permitting process.
“They had looked at the feasibility of this in the late 1990s and again in early 2000s,” Totoiu said. “And each and every time they did, they came to the conclusion that the juice wasn’t worth the squeeze.”
The state also failed to provide any measure for fixing problems if the program failed, the judges concluded.
“There was nothing that would ever provide that backstop that if this process was failing and more species being impacted, it would ever be revisited,” Totoiu said.
The ruling comes as the state has sought to speed up development and ease restrictions across Florida that protect wildlife and open lands.
Last year, legislators pre-empted local growth management rules meant to protect residents from building in risky areas. Another revised rules on wetlands mitigation banks, allowing developers to buy credits anywhere in the state rather than in banks located near impacted wetlands. Last year, Florida Waterkeeper and other groups sued Florida after it failed to follow orders issued by the EPA three years earlier to update criteria for dozens of pollutants harmful to humans.
“We seem to be having a hard time keeping our waters clean and on top of that we want to assume control of dredge and fill protections for endangered species that depend on these wetlands,” Totoiu said. “It just adds insult to injury.”
