EPA Opens Door to Risky State Management of Federal Waters

Today, the Environmental Protection Agency (EPA)announced a rule that would guide how states can take over dredge and fill permitting authority over federally protected waters from the U.S. Army Corps of Engineers, also known as assuming 404 permitting. Dredge and fill permits are what industries like mining, factory farming, oil and gas companies, and real estate developers, need to dredge or fill a wetland, parts of a lake, or a river to build. This is mostly irreversible damage.

The Clean Water Act (CWA) is under relentless attack from polluting industries, their friends in pollution-friendly states, and — most recently — the Supreme Court, who severely reduced the scope of what wetlands are protected by the Act in Sackett v. EPA. We have already seen states act to further weaken federal protections after Sackett, and we must be wary of other attempts to reduce federal oversight of our water and wetlands.

The following is a statement from Julian Gonzalez, senior legislative counsel for Earthjustice’s Healthy Communities program.

“EPA must ensure protections for waters and affected communities remain in place through this process, rather than just respond to states’ and industry predilection without considering the pitfalls and reduced water protections that may follow. Most recently we have seen states like Florida work with the Trump administration, who skipped steps and waived minimum standards and requirements for Florida to unlawfully take this permitting authority from federal agencies, with disastrous consequences. It is up to EPA to ensure that it will not happen again, as Florida will not be the last state that attempts to take over 404 permitting when they cannot run a protective and effective program.

“EPA must set strong minimum standards that all states must meet before they can assume a 404 program, retain robust oversight of the 404-permitting process, and ensure this rule does not result in lesser federal protections under the CWA and other protective laws triggered by federal permits, like the Endangered Species Act. EPA must ensure that the final version of this rule reflects the concerns of affected communities, which have been fighting attacks on the Clean Water Act, and who have not been consulted on this issue at all. A weak framework for 404 assumptions will further embolden the industry’s deregulatory agenda to destroy wetlands and pollute our waters in the name of profit. We look forward to giving EPA additional feedback on this important rule.”