TALLAHASSEE — Florida lawmakers have created a fast-track for wetland destruction that will speed up an already streamlined process that has drawn warnings from federal regulators and a lawsuit from environmentalists.
The new pay-to-play arrangement is tucked into SB 2508, Senate President Wilton Simpson’s signature water quality bill approved by the Legislature earlier this year.
If signed into law, environmentalists say, it would further hasten the demise of Florida’s wetlands, which have been disappearing at an alarming rate over the past several decades despite a wetlands restoration program and a federal edict that development should result in “no net loss.”
Florida has lost the most acreage of wetlands in any state since 1845, over 9 million acres, according to the U.S. Fish and Wildlife Service.
It’s happening as the Florida Department of Environmental Protection continues to adhere to a President Trump-era rule that scaled back federal protection of millions of acres of wetlands, marshes and streams. At the same time, the DEP is a defendant in a federal lawsuit filed by a group of environmental organizations for taking over a federal wetland permitting process that fast-tracks wetland permitting.
Environmentalists say they believe Florida Power & Light is a driving force behind the permitting language.
“When FPL wants something they get it,” said Lindsay Cross, the water and land policy director at Florida Conservation Voters, a nonprofit environmental watchdog. “Investor-owned utilities have incredible power to get laws passed at the expenses of the environment and community members.”
The bill allows the DEP to enter into an agreement or contract with a “public entity,” which includes any public utility providing electricity or gas, “to expedite the evaluation of environmental resource permits or Section 404 of the Clean Water Act permits.”
Section 404 regulates dredging and filling operations on wetlands, streams, marshes, ponds and other waterways to make room for giant transmission lines, sprawling solar farms, transfer stations and power plants.
It also says the applicants can pay DEP for the service, to be deposited into the state Grants and Donations Trust Fund.
Cross said she “interpreted that language as saying they can essentially pay for someone to review their permit application.”
FPL and its parent company NextEra Energy have contributed $3.3 million to legislators and political committees for the 2022 election cycle. Simpson, a Pasco County Republican, and his four political committees have received $1 million from FPL and other utilities over the years.
Bill sponsor Sen. Ben Albritton of Polk County and his committee have received more than $153,000 from public utilities.
Environmentalists spoke out against the permitting provision at their one opportunity before the Senate Appropriations Committee in February.
“Does this mean FPL and Duke Energy could evaluate their own permit applications?” asked Gil Smart, director of policy for the Friends of the Everglades. “This wouldn’t be necessary if (DEP) was properly staffed and resourced to take over the 404 Wetland permitting program in the first place.”
Florida Conservation Voters has sent a letter asking DeSantis to veto the bill when it reaches his desk.
“Wetlands destruction could become pay to play with expedited permitting for those able to pay additional fees,” the letter says. “This will result in a fast track of wetland destruction. By entering into contracts with public entities, this may also make a 120-day challenge more difficult or impossible for a third party.”
FPL and Albritton, R-Bartow, did not return emails seeking comment on the permitting language and its potential impact, its origins or its public necessity. A spokeswoman for the DEP said the agency didn’t propose the legislation.
State takeover of permits
The proposal is similar to a 2017 agreement between the U.S. Army Corps of Engineers and FPL that allowed the Corps to take payment from the utility to process a huge increase in Section 404 dredge-and-fill permit applications for wetlands, streams and marshes.
Three years later, the DEP under then-chief Noah Valenstein took over the permitting duties. Only two other states, Michigan and New Jersey, provide that function.
Environmentalists argued that the DEP was not prepared to absorb such a huge responsibility from a federal agency, but the DEP insisted it needed no additional funding and is now facing a massive backlog of applications.
Florida went from a highly regulated application process that included federal endangered species oversight to one managed by a short-staffed, underfunded and untrained unit processing a record number of applications that it cannot keep up with, said Tania Galloni, managing attorney for the Florida office of Earthjustice, a nonprofit, public interest environmental law group
“Everything is really downgraded,” Galloni said.
Earthjustice sued the EPA in January 2021 to prevent the transfer of duties to Florida, saying it would “degrade and ruin Florida’s natural landscape, all in violation of federal environmental laws.”
A federal judge in March rejected the state’s motion to dismiss the case, which is ongoing.
It’s a high-stakes process because of Florida’s endangered wetlands and endangered species, she said.
“They’re already doing a messy job and now they’re being pushed to do it faster,” she said, when what is needed is a rigorous analysis without undue influence.
Trump-era wetlands rule
Meanwhile, the EPA is in a dispute with Florida because it is still operating under a Trump administration definition of wetlands that was struck down by a federal judge in a case out of Arizona last August.
“So the entire country is back to what the rule was before, except for Florida, which keeps applying the legal definition and issuing determinations that no permit is required,” Galloni said. “Florida is functioning under a definition of wetlands that excludes lots of wetland under the old (and reinstated) law.”
The problem, as Galloni sees it is this: “If Florida is not applying the right rule we can’t know how many ‘no permit’ decisions are legitimate. When Florida took over the 404 application process, the Trump rule was in effect. Since the court invalidated it, Florida hasn’t changed that.”
The EPA has warned Florida that any permits it issues or any decision that a permit is not required using the Trump rule violates the Clean Water Act and could lead to enforcement action.
But a spokeswoman for Florida’s DEP says the agency still follows the Trump rule because it says it hasn’t been vacated nationwide and the definition of wetlands is unsettled.
“The federal definition of ‘Waters of the United States’ remains in flux,” DEP’s Dee Ann Miller said. The EPA is still reviewing comments on new rules and the U.S. Supreme Court will take up the Arizona case, she said. Miller also said Florida has up to a year to make any necessary rule changes and two years to make any statutory changes to the program.
Florida Agriculture Commissioner Nikki Fried, the only statewide elected Democrat and a candidate for governor, wrote to EPA Administrator Michael Regan when he first took office to argue that allowing the DEP to administer the federal wetlands permitting process would be disastrous for the environment.
After this story was published online, Fried wrote a letter to Regan reiterating her concerns and urging him to reverse the Trump-era decision and take back control of the Section 404 program.
“Unfortunately, I was correct to be concerned: the Florida Legislature has now passed an industry-backed law that has created a fast-track for wetlands destruction by allowing energy companies to review and expedite environmental resource permits,” Fried said. “This bill will be catastrophic for Florida’s environment if signed into law, and it is imperative that we do everything at both the state and federal levels to prevent corporations from being able to rubber-stamp their own plans to destroy our wetlands.”
Meanwhile, the state continues to approve dredge-and-fill permits or waiving the need for them at a record pace, Galloni said.
More than 1,000 have been filed since January. The DEP said it’s a post-COVID growth spurt, Galloni said. “I say people see how easy it is to get a permit and are filing applications before it goes away.”
