By STAFF REPORTS
A new rule established in December by the U.S. Environmental Protection Agency aims to clarify processes for states to assume permitting of dredge and fill activities in federally protected wetlands and waterways under the Clean Water Act Section 404(g).
However, it is likely that as President-elect Donald Trump’s administration assumes control of the White House in January, it will scrutinize not only this rule, but others created under the Biden Administration. Trump has nominated former Representative Lee Zeldin from Long Island, New York, to be EPA Administrator.
For decades, officials in Washington D.C. have attempted to create a definition of Waters of the United States, known as WOTUS, which are continuously challenged in court. The country now has a patchwork of regulations, with 23 states operating under the “2023 Rule,” which took effect in March 2023, and 27 states – including Florida – operating under a pre-2015 regulatory framework.
That’s partly because in May 2023, the U.S. Supreme Court ruled in Sackett v. EPA that federal agency jurisdiction “extends only to the limits of Congress’ traditional jurisdiction over navigable waters.” The simplified WOTUS definition in Sackett includes only: traditional, navigable waters such as “streams, oceans, rivers, and lakes” and wetlands when they are continuously connected to, and indistinguishable from, navigable waters.
According to the rule text, the EPA revised the rule to respond to longstanding requests from state and tribes to clarify processes for assuming these types of permits. The agency stated that the 216-page rule revision will facilitate state and tribal assumption, “by making the procedures and substantive requirements for assumption transparent and straightforward.”
However, experts have suggested that this new rule would allow the federal government to continue controlling permitting over waterways used for commerce and adjacent wetlands, making it unlikely that states will participate.
Florida continues to be mired in lawsuits over its 404 program, which EPA allowed the state to assume in December 2020. Environmental groups sued, alleging the EPA erred in that decision.
In February 2024, a Washington D.C. District Judge invalidated the state’s program, sending the permitting authority back to the U.S. Army Corps of Engineers. The Corps in October announced it had outsourced portions of its permitting duties, including 404 permitting, to SES Energy Services LLC.
The EPA rule is subject to the Congressional Review Act due to the timing of its finalization, according to news reports.
Link to the rule: https://aboutblaw.com/bgx4
