Aaron Bean pursues congressional override of decision denying Florida permitting authority

Congress last week voted to restore Florida’s permitting authority over wetlands. But it’s unclear whether the process can be jump-started anytime soon.

U.S. Rep. Aaron Bean introduced an amendment last week on a larger bill, the Creating Confidence in Clean Water Permitting Act (HR 7023), that would codify Florida’s authority to issue permits.

Bean, a Fernandina Republican, said it’s critical to restore Florida’s 404 Program, which transferred permitting authority from the U.S. Army Corps of Engineers to the Department of Environmental Protection (DEP).

But a court in February said the authority was wrongly granted to the state in the first place. That decision has done more to stop critical environmental projects than to help, Bean said.

“We can’t get the federal government to act fast,” Bean said on the House floor. “We’re ready to go.”

Bean’s amendment passed on a voice vote. The overall bill passed in the House overall, but on a largely party-line vote of 213-205. Every Democrat in Florida’s congressional delegation voted against the underlying bill. That signals uncertainty as to what path exists for the legislation in the Democrat-controlled Senate.

The program itself has drawn criticism. It was approved by the Environmental Protection Agency (EPA) in December 2020, in the waning days of former President Donald Trump’s first term in office.

“A considerable amount of effort has gone into Florida’s assumption of the Clean Water Act 404 program,” said former EPA Administrator Andrew Wheeler at the time.

“Federal authorities don’t delegate this type of permit often, but Florida has, beyond question, one of the greatest environmental records of any state, and I couldn’t be happier that Florida has shown it can meet the strict national standards EPA sets to protect human health and the environment.”

And Florida isn’t the first state to receive authority. New Jersey and Michigan also have Clean Water Act programs run at the state level.

But the move drew a legal challenge from the Center for Biological Diversity and other environmental advocacy groups. A federal court in Washington ruled on Feb. 15 that the EPA erred in allowing the state to take over permitting. Courts ruled that the EPA hadn’t taken into account issues connected to the Endangered Species Act.

“Today’s ruling sends a clear signal that Congress meant what it said when it passed the Endangered Species Act,” said Earthjustice attorney Christina I. Reichert. “No state can be allowed to take over a federal program as important as the Clean Water Act’s wetlands permitting program by making an end run around the Endangered Species Act.”

Bean said the decision has effectively stopped permitting altogether. As both the federal government and Florida argue who should hold authority right now, the Congressman listed on the floor the number of projects in Florida that can’t move forward.

“Projects to restore Florida’s Everglades and prevent damaging discharges from Lake Okeechobee. They’re on hold,” Bean said.

“Public projects to build sidewalks, improved bridges, utilities roads, highways across the Sunshine State. They’re on hold. We can’t do them. Solar energy projects including solar power stations and other electronic utility projects impacting our grid in the Sunshine State. They’re on hold. Stormwater infrastructure repairs at US Naval Air Station Pensacola. It was damaged due to Hurricane Sally, but the repairs are on hold.”

He also said a Jacksonville school, economic development efforts in Lake County and numerous specific projects cannot advance because of the court ruling.

But it’s uncertain even if the legislation passes if that will completely satisfy the courts. In the meantime, the state said it’s seeking legal remedies.

“The Florida Department of Environmental Protection (DEP) is currently evaluating all legal options in light of the court’s order,” reads a statement from the DEP.

“All activity under the State 404 Program is paused until further order of the court, including the more than 1,000 State 404 permit applications that were pending before DEP. As an initial step to limit this disruption, DEP filed a motion seeking a partial stay so Florida may continue to process the applications that would not affect any listed species.

“Unless stayed, the court’s ruling will disrupt pending permit applications, including those associated with the restoration of America’s Everglades and critical infrastructure projects for a more resilient Florida.”

The DEP cheered Bean’s legislative action.

“The ability for states to have the power to regulate their own natural resources is vital, especially for a state like Florida where its growing economy is contingent on the continued protection of its environment,” said DEP Secretary Shawn Hamilton “Congress’ action today is a testament to cooperative federalism, and I applaud Congressman Bean for championing this effort.”