By STAFF REPORTS
Florida’s long-running effort to assume Clean Water Act section 404 permitting authority suffered another major setback on March 27, when the U.S. Court of Appeals for the District of Columbia Circuit upheld the lower court ruling vacating the program. The decision leaves in place the conclusion that federal agencies acted unlawfully when they approved Florida’s assumption package in 2020.
This litigation began when seven environmental groups, led by the Center for Biological Diversity, alleged that the federal defendants, the EPA, U.S. Fish and Wildlife (USFWS), and the Army Corps of Engineers, violated the Administrative Procedure Act, Clean Water Act, and Endangered Species Act in the transfer of 404 permitting authority to Florida.
This happened in December 2020, when the EPA granted the state of Florida assumption of the 404 federal permitting program regulating the discharge of dredged or fill material into wetlands and other Waters of the United States (WOTUS). Section 404 of the Clean Water Act requires a permit before dredged or fill material may be discharged into WOTUS. Florida was one of three states to assume the 404 federal permitting program, in addition to Michigan and New Jersey. The Army Corps issues 404 permits in the other states.
The ruling is important, but not because it offers a sweeping new policy direction. Instead, it turns on a narrower and more practical question: whether EPA and the U.S. Fish and Wildlife Service could approve Florida’s 404 program using a front-end, programmatic Endangered Species Act review, while leaving much of the species-specific work to a later technical assistance process. The majority said no. A partial dissent said that approach was both lawful and sensible.
That contrast is what makes the opinion interesting.
Judge Florence Pan, writing for the court, viewed the federal agencies’ approach as an impermissible shortcut. Her opinion opens with a memorable analogy: a trucking company owner asks the DMV to register all of his trucks based on a promise that he will handle the safety inspections himself and consult the agency if questions come up. In the court’s view, that is essentially what happened here. Florida promised to make sure future permits complied with the Endangered Species Act, and the federal agencies accepted that assurance without completing the kind of species-specific analysis the statute and regulations require.
Judge Karen Henderson saw the case differently. In her partial dissent, she framed the central issue more pragmatically: whether federal agencies had to “divine the full impact of permitting across the entire state of Florida for all time,” or whether they could rely on future permit-by-permit review built into Florida’s program. In her view, the latter approach was permissible. She argued that the ESA does not require the sort of exhaustive species-by-species analysis the district court demanded at the programmatic stage, particularly where the agencies had established future safeguards and consultation mechanisms.
That disagreement matters because it gets to the heart of a recurring problem in environmental permitting: how much analysis must happen up front, and how much can lawfully be deferred until later project review. The majority treated the technical assistance process as too thin a substitute for formal ESA compliance. The dissent treated it as a reasonable way to make the Clean Water Act and the ESA work together in the real world.
For Florida, the practical effect is continued uncertainty. That leaves Floridians in the familiar position of trying to navigate a complicated wetland permitting landscape in which a duplicative federal process remains.
The immediate takeaway is fairly simple. The court did not reject state assumption as a concept. It rejected the way this assumption was structured under the Endangered Species Act. And while the judges agreed on some points, the divide between the majority and the dissent makes clear that this was not a dispute over environmental goals so much as a dispute over legal method, agency discretion, and how much uncertainty the law will tolerate on the front end of permitting.
