Lieutenant General Todd T. Semonite
Commanding General and Chief of Engineers
441 G St NW
Washington, DC 20314
Dear Lieutenant General Semonite:
The undersigned organizations understand and appreciate your commitment to the cooperative federalism principles embedded in the Clean Water Act (CWA). As explained herein, however, we are concerned that the recent actions of the Jacksonville District of the U.S. Army Corps of Engineers (Corps) run counter to those cooperative federalism principles as well as the plain text of CWA Section 404(g). These actions will serve to delay and frustrate Florida’s assumption of the Section 404 permitting program. We ask that you intercede. Specifically, we ask that the Corps Jacksonville District Office: (1) withdraw its March 19th initiative, (2) withdraw its dubious addition of numerous, non-assumable Florida waters in October 2017, and (3) delineate Florida’s assumable waters consistent with the Assumable Waters Subcommittee’s majority recommendations.
The March 19th District initiative is unnecessary. The Jacksonville District’s stated purpose of the request for comments is to assist the District with determining the extent of waters over which to retain permitting authority if EPA approves Florida’s Section 404 program application. The notice cites no legal authority compelling this outreach initiative. Seemingly, there is none. The District notice also cites no evidence that Florida is beset with previously overlooked non-assumable waters. We are unaware of any such factual basis. Indeed, this new initiative comes on the heels of the District’s unexplained expanded list of “navigable waters” in October 2017, which tripled the number of streams and added more than 1,000 lakes, including questionable additions, not only because they are not used in transport of interstate commerce, but additions so small one would strain to find them on a map.
Notably, the District’s recent efforts coincide with the State of Florida’s effort to assume Section 404 permitting authority.
The Jacksonville District should be singularly focused on identifying Florida Rivers & Harbors Act Section 10
The Corps’ minority recommendations are inconsistent with the plain language of the Clean Water Act, the legislative history, and underlying rules. The law is clear on identifying which waters must be retained by the Corps: waters that are presently used or are susceptible to use to transport interstate or foreign commerce – i.e., Rivers & Harbors Act waters, except waters that are subject to Rivers & Harbors Act solely because they were used in the past to transport interstate commerce. The Subcommittee’s recommendation reflects this clear distinction.
The District’s March 19th notice, however, ignores the CWA’s text and its legislative history. The notice instead reflects the Corps’ minority opinion in the Report and signals an attempt to expand the scope of the Corps’ retained waters, which would be contrary to law. We ask that the Corps abandon the District’s March 19th initiative and instead determine non-assumable waters in a manner consistent with the Report and the CWA.
The District initiative subverts the Clean Water Act’s cooperative federalism structure. The CWA is a balanced, cooperative federalism statute. It is troubling to see that the March 19th notice tips that balance, as it specifically references rivers, streams, and lakes associated with past commerce or recreational activities as potentially retained waters. As noted above, the District should not consider past commercial uses of waters.
Additionally, nothing in Section 404(g) or the implementing regulations makes any reference to waters used for recreational purposes. Section 404(g) is clear that the Corps is only authorized to retain those waters used or may be used “to transport interstate or foreign commerce.” Moreover, the Corps’ own regulations demonstrate that the District should not seek to retain permitting authority over certain waters based solely on the fact that the water supports or may conceivably support recreational activities. 33 C.F.R. § 329.6(a).
To expand Corps’ authority is to upset the cooperative federalism balance of the CWA. The CWA cast the states as the lead players; the federal government assumes an oversight role. Consistent with that structure, forty-six states now implement the authority granted by Section 402 of the CWA through administration of the National Pollutant Discharge Elimination System (NPDES) permitting program applicable to discharges of pollutants. Only two states, however, have assumed Section 404 permitting authority. The disparity is telling.
It need not be this way. We ask that the District help reinvigorate the cooperative federalism spirit of the Section 404 program. The District should implement Section 404(g) as Congress intended and adopt the majority recommendations of the Assumable Waters Subcommittee when determining which waters must be retained. We respectfully ask that the Corps abandon the Jacksonville District March 19th initiative and withdraw its dubious addition of numerous, non-assumable Florida waters in October 2017.
American Council of Engineering Companies of Florida
Associated Industries of Florida
Association of Florida Community Developers
Florida Cattlemen Association
Florida Chamber of Commerce
Florida Electric Power Coordinating Group, Environmental Committee
Florida Engineering Society
Florida Farm Bureau Federation
Florida Fertilizer and Agrichemical Association
Florida Forestry Association
Florida Fruit and Vegetable Association
Florida H2O Coalition
Florida Home Builders Association
Florida Nursery, Growers and Landscape Association
Florida Ports Council
Greater Orlando Builders Association
Home Builders Association of West Florida
Lee Building Industry Association
Polk County Builders Association
Pulp and Paper Resource Council
Southeast Milk, Inc.
Tampa Bay Builders Association
Treasure Coast Builders Association
Volusia Building Industry Association