In Florida’s Plan to Take Over Wetland Permits, Critics See a Gift to Developers

Update: After the EPA approved Florida’s request to assume 404 permitting authority in December 2020, a court overturned that approval on February 15, 2024. The federal judge ruled that the agency and the U.S. Fish and Wildlife Service violated the Endangered Species Act in turning the permitting program over to the state.

In less than a month, the U.S. Environmental Protection Agency will make a decision that could have massive stakes for Florida’s water and wildlife.

In August, the state sent an application to the EPA asking to take over a federal program that issues permits for construction in wetland areas, saying it would streamline the permitting process. Florida builders have long advocated for the state to assume the program—a lobbyist once called it the “Holy Grail” for developers. 

But conservationists say the state’s environmental agency is already understaffed and underperforming, and giving it control of the program will only accelerate the destruction of wetlands at a time when they are under pressure from developers and essential for absorbing the blows of climate change. “The idea that we would reduce protections in any way, or accelerate the destruction of wetlands, is really awful,” says Tania Galloni, managing attorney for Florida at Earthjustice, a nonprofit environmental law group. “The state taking over this federal program would result in less protection.”

The timing of the EPA’s decision is significant: If the agency approves the request on its December 17 deadline, it would hand over control 30 days later—just two days before the end of the Trump administration.

Wetland permitting in Florida is complicated, but generally speaking, projects that will affect major waterways need what’s called a 404 permit—a reference to the section of the Clean Water Act that regulates disposal of “dredge or fill material” into water bodies—from the U.S. Army Corps of Engineers. Projects affecting water bodies not connected to those federally regulated waters need a permit from the Florida Department of Environmental Protection, or DEP. And many projects need both. 

Developers say the process is overly complex and takes too long. Approved state wetland permits “are regularly received months or even years in advance of their federal counterparts,” said Florida Home Builders Association CEO Rusty Payton in an emailed statement to Audubon magazine. “The two permits are often indistinguishable, aside from the permit issuance date.” 

Florida began its latest effort to take over the permitting program in 2018 under then-Gov. Rick Scott, a business-friendly, regulation-averse Republican. Under the Clean Water Act, states can ask the EPA to let them take over 404 permits, as long as the state has a rigorous enough program. A number of states have taken steps in that direction, but so far only Michigan and New Jersey have assumed that authority, and that was back in the 1980s and ‘90s. Experts say no other states have followed through because the process is onerous and the resulting program requires significant resources to run. A year ago, Arizona abandoned its effort after the plan faced “opposition from virtually everyone concerned about the issue,” as the Arizona Daily Star put it. 

The stakes are especially high for the Sunshine State. Even after losing nearly half its original wetlands to drainage and development, Florida still has more of them left—around 11.4 million acres—than any state but Alaska. The Everglades and other swamps, sloughs, and marshes are essential habitat for wading birds whose populations in Florida have plunged over the past several decades, such as Wood Storks, Tricolored Herons, and Roseate Spoonbills. The loss of pollution-filtering wetlands is one factor in the state’s ongoing battle with toxic algae outbreaks. And as climate change brings worsening floods, wetlands provide an increasingly valuable natural service by soaking up and holding water like sponges. 

The state continues to lose wetlands at a worrying rate; between 1996 and 2014, Collier and Lee counties in Southwest Florida alone lost some 30,000 acres. Still, environmentalists say those losses would be worse without the Army Corps involved. As a federal entity, the Corps is more insulated from local politics than state agencies, they argue. Plus, before projects receive a permit from the Corps, they’re subject to a review of their environmental impacts and a public-comment period under the National Environmental Policy Act, or NEPA, which would not apply to the program under state control. “In other words, it could have been much worse, and if Florida takes over, it will be the much worse scenario,” Galloni says. 

The state’s application doesn’t explain how it will replace the safeguards that NEPA provides, says Beth Alvi, director of policy for Audubon Florida. Nor does it lay out how the state will assess how projects will affect species protected by the Endangered Species Act, another federal requirement that would go away if Florida assumes the 404 program. And she and other critics say the state has not clearly explained which water bodies will fall under its jurisdiction; federal law requires the Corps to oversee navigable waters, but exactly what that means is complicated, particularly in water-rich Florida. “Just on the face of it, the application is incomplete,” Alvi says. “It’s not ready for prime time. Let’s get questions answered. Let’s get more time for public comment before you make this decision.” 

The DEP is on record saying it can take on 404 permitting and enforcement without increased staffing or costs. “DEP’s intimate knowledge of state aquatic resources, coupled with the efficiency and proven success of its own wetland permitting program, will ensure that the Section 404 program will be implemented in a scientifically sound and protective manner,” said Alexandra Kuchta, deputy press secretary for the DEP, in an email. The pace of federal permitting delays not only housing and commercial development, but also environmental restoration projects, Kuchta said. 

But critics say the department lacks the staff, resources, and track record to suggest it can successfully manage the program, especially without significant new funding. The DEP suffered stiff budget cuts and shed more than 600 employees when Scott was governor, and hasn’t come close to recovering under his successor, fellow Republican Gov. Ron DeSantis. The agency now opens far fewer enforcement cases than a decade ago, and its enforcement rate for violations in the state dredge-and-fill program dropped from 47 percent in 2018 to 36 percent last year, according to a report from Public Employees for Environmental Responsibility. 

Recent cutbacks at the DEP are especially noteworthy given that, when the state considered making a bid to take over the program in 2005, the department said it couldn’t take on the extra work without more money and staff. “What I don’t understand is how that was the case in 2005, and yet now, the state’s DEP says, ‘Well, we can take on this responsibility. We’ll just shuffle around a few resources,’” says Christopher Meindl, a geographer at the University of South Florida who wrote a recent paper about the state’s effort to take over the program. 

No wonder, then, that many observers are skeptical of the department’s ability to take on a new permitting responsibility that will only grow as more sun-seekers flood the state. Economists expect Florida’s population to swell by an average of more than 303,000 people per year from now to 2025, the equivalent of adding an Orlando annually. They’ll all need somewhere to live, and the state is one-third wetland.