Courts will likely set it aside under the Administrative Procedure Act and National Environmental Policy Act.
From the Tampa Bay Times:
Trump wetlands rule rollback makes about 6 million acres in Florida unprotected
![The Lake Louisa-Green Swamp Wetland Mitigation area near Orlando is part of Florida's 12 million acres of wetlands. [Times files]](https://www.tampabay.com/resizer/gKIc6uM6pDoLp0h3eqL7j4tft5A=/2280x1282/smart/arc-anglerfish-arc2-prod-tbt.s3.amazonaws.com/public/KBHAQTWEN4I6TKTRIBWI6S7HAY.jpg)
A new definition of federally protected wetlands that the Trump administration unveiled this week would make an estimated 6 million acres of Florida's wetlands vulnerable to developers and other interests that seek to wipe them out, according to figures from the Environmental Protection Agency.
The figures, first reported by an energy and environment publication called E&E News, say the new wetlands definition would remove federal protection under the Clean Water Act from about 51 percent of all of the nation's wetlands. Florida has about 12 million acres of wetlands, the most of any state except Alaska.
Losing federal protection for half of them "could alter the Florida landscape pretty significantly," said Jan Goldman-Carter, senior manager for wetlands at the National Wildlife Federation. "There will be a significant impact on water quality as a result."
Stetson University law school dean Royal Gardner, a former attorney for the federal agency in charge of issuing wetlands permits, called the proposed change an "attempt to gut Clean Water Act protections by proposing a restrictive definition of waters of the United States."
And Brad Cornell of Audubon Florida pointed out that "this is a very bad time to lessen protection for wetlands and watersheds in Florida — we are in the second year of just about continuous Red Tide affliction." A Red Tide toxic algae bloom is fueled by pollution in storm runoff, which can be filtered and cleaned up by wetlands.
The new rule, unveiled by the Environmental Protection Agency and the U.S. Army Corps of Engineers, says that the only wetlands that will be federally protected are those immediately adjacent to a major body of water, or ones that are connected to such a waterway by surface water.
Acting Environmental Protection Agency administrator Andrew Wheeler called the change a way to make wetland regulations "simpler and clearer" for landowners. The proposed new rule was hailed by such national groups as home builders, golf course developers and farmers — all of whom tend to regard wetlands not as a boon but as a bane, something that gets in the way of their plans.
Cornell said the impact on Florida is likely to be dramatic because "Florida is different — very flat and lots of sheetflow, plus a very seasonal … type rain climate which results in lots of seasonal wetlands in all watersheds. This new rule would be real hard on downstream Florida waters due to the loss of these shallow, seasonal wetlands."
A larger percentage of the state's surface is covered by wetlands than any other state. Florida also possesses a greater diversity of wetland types than the other states, ranging from the tupelo swamps of the Panhandle to the tidal flats of the Keys.
Wetlands have long been protected under the Clean Water Act, first passed in 1972, because they filter pollution out of storm runoff, soak up floods before they can cause damage, recharge the aquifer's drinking water supply and provide crucial habitat for important species.
Congress passed the act by an overwhelming bipartisan vote, then mustered enough voters to override a veto by then-President Richard Nixon. But the section involving wetlands protection has proven to be one of the most bitterly disputed environmental regulations ever, with U.S. Supreme Court rulings that tended to muddle the situation rather than clarify it.
In 2015, trying to respond to one such Supreme Court ruling, the Obama administration proposed expanding the definition of which wetlands and streams were protected to include streams where water runs only during or after rainfall, and wetlands that were not adjacent to major bodies of water. The Obama-era rules also protected wetlands that were only connected to waterways via an underground connection such as the Floridan aquifer.
But the change was politically unpopular with farmers and developers — including one who lives part-time in Florida. During his 2016 presidential campaign, Donald Trump vowed to roll back that rule, calling it "one of the worst examples of federal regulation."
Soon after he took office, his Environmental Protection Agency declared that it would suspend the Obama-era rule, a move that drew lawsuits from several states that were later consolidated into one. During the course of that lawsuit, Gardner, the Stetson dean, represented a group called the Society of Wetland Scientists. They strongly objected to the federal agency making such a move without a scientific basis.
The rule unveiled Tuesday also has no scientific background, Gardner noted. Instead it's rooted in the Trump administration's interpretation of the law, particularly an opinion of deceased Supreme Court Justice Antonin Scalia.
"The (Environmental Protection Agency's) refusal to fully consider science defies logic, conflicts with the agency's core values, and is arbitrary and capricious." he said.
As with the suspension of the Obama-era rule, some states are likely to challenge the Trump rule rollback in court. At this point, Florida Department of Environmental Protection officials are reviewing the proposal and have not made a decision about whether to welcome it or not, an agency spokeswoman said. Florida did not join the states suing the federal agency over the prior rule suspension.
Florida Gov.-elect Ron DeSantis, a strong Trump supporter, has indicated that water quality will be an important issue for his administration. His staff did not respond to a request for comment on the Trump wetlands rule change.
Contact Craig Pittman at craig@tampabay.com or . Follow @craigtimes.
Want to weigh in? For information on how to comment on the proposal, click here: https://www.epa.gov/wotus-rule/step-two-revise
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