By STAFF REPORTS
The U.S. Department of Justice has asked the full U.S. Court of Appeals for the D.C. Circuit to rehear the litigation challenging the U.S. Environmental Protection Agency’s 2020 approval of Florida’s assumption of the Clean Water Act Section 404 dredge-and-fill permitting program.
The petition, filed Aug. 7 in the U.S. Court of Appeals for the District of Columbia, argues that the panel’s March 2026 decision conflicts with existing precedent, imposes an unworkable standard for Endangered Species Act consultation, and threatens the legal framework supporting cooperative federalism in environmental permitting.
Rather than focusing solely on Florida, the petition emphasizes nationwide implications. According to the filing, the panel’s decision could undermine the ‘technical assistance’ approach long used by EPA and the U.S. Fish and Wildlife Service when consulting on state-administered regulatory programs.
The government argues that requiring EPA and the wildlife agencies to predict the impacts of every future permit before approving a state’s assumption would make it difficult for any state to assume Section 404 authority, which undermines Congress’ intent.
Florida’s long-running effort to re-assume Clean Water Act section 404 permitting authority suffered a major setback in March, 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, allowing the Florida Department of Environmental Protection to run the program.
The 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 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 in December 2020.
The 404 permitting program regulates 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.
In February 2024, a federal District Court judge ruled that the Corps was to re-assume the program, removing it from DEP’s control. Court filings have followed as Florida, backed by EPA, seeks to resume control of the permitting process.
The petition also notes that the D.C. Circuit’s reasoning has already been cited in separate litigation involving state surface mining programs, broadening the significance of the case beyond wetlands permitting.
The Florida Specifier will publish a more detailed analysis of the rehearing petition, the legal issues presented, and the potential implications for environmental permitting in Florida in the September/October edition.
To read previous coverage of the 404 permitting issue in Florida, click HERE.
To view the petition, click HERE.
