EDITORIAL
Florida’s long-running fight over Clean Water Act (CWA) Section 404 permitting has produced an important legal question. It has also exposed a more basic policy problem.
In 1977, Congress amended the CWA to create a process through which states could assume responsibility for administering portions of the federal Section 404 dredge-and-fill permitting program. The statute (33 U.S.C. §§ 1344(g)-(h)) is unusually explicit. A Governor may submit a program to EPA; EPA reviews it with input from the US Army Corps of Engineers and U.S. Fish and Wildlife Service (FWS); and, if the statutory requirements are satisfied, EPA “shall approve” the program. Once the state begins administering it, the Corps suspends permitting over the assumable waters.
Congress did not stumble into this arrangement. The 1977 Conference Report described Section 404(g) as establishing a process allowing states to administer permitting over waters eligible for assumption. Legislative materials went further, describing it as congressional policy that states implement the permit programs under Sections 402 and 404 when they choose to assume that responsibility.
Nearly 50 years later, that statutory pathway is looking increasingly theoretical.
Florida became only the third state ever approved by EPA to assume the Section 404 program when EPA approved its application in December 2020. After the federal district court vacated EPA’s approval in February 2024, Florida’s program ceased operating.
The immediate legal dispute concerns the Endangered Species Act. EPA’s approval of Florida’s program was supported by a programmatic biological opinion developed by the FWS. Because nobody could know where every future Florida permit application would be located, which listed species might be present or precisely what impacts an unidentified future project might have, the federal agencies modeled the process on the approach used under section 316(b) of the Clean Water Act: the FWS would provide technical assistance as individual permits were reviewed.
The D.C. Circuit rejected that approach. In March, a divided panel largely affirmed the district court’s ruling that the ESA-related approvals underlying Florida’s program were unlawful. The federal agencies and Florida have now separately asked the court to rehear the case. Both point to the Second Circuit’s decision in Cooling Water Intake Structure Coalition v. EPA, which upheld the 316(b) programmatic consultation framework using future technical assistance to address effects that could not reasonably be evaluated when the underlying federal program was approved.
The courts will decide whether the agencies’ approach complied with the ESA. There is, however, a larger policy question worth considering.
If the D.C. Circuit’s interpretation makes state assumption under Section 404(g) practically impossible, can that be reconciled with the statute?
There is an unavoidable sequencing problem here.
Before a state assumes Section 404 authority, the future state permits do not exist. The future projects and their locations are unknown. The affected species are unknown. Yet the federal government must make the decisions necessary to transfer administration of the program before those future permit applications can be processed by the state.
There are only so many ways to solve that problem.
One approach is the one currently used in the 316(b) program and previously used in Florida: evaluate the program at the programmatic level and establish enforceable procedures for addressing project-specific ESA issues when the individual applications actually arrive.
Another is to ask the federal agencies, at the assumption stage, to evaluate the cumulative effects of an unknown number of projects, at unknown locations, for an undefined period of time.
If the second approach is what federal law requires, state assumption may remain technically authorized by Congress while becoming practically unavailable to states.
This does not mean ESA protections should disappear when a state assumes Section 404. Nor does congressional authorization of state assumption override the ESA. Congress enacted both statutes, and agencies must comply with both.
The relevant question is whether the statutes can be administered in a way that gives effect to both.
That matters because Congress did not merely invite states to help the Corps process federal permits. Section 404(g) creates an actual transfer of permitting responsibility. Once EPA approves a qualifying program and the state begins administering it, the Corps suspends issuance of permits for activities within the assumed program. Congress even established deadlines for federal review: the wildlife agencies have 90 days to comment on a state submission, and EPA generally has 120 days to determine whether the state program qualifies.
Those provisions look like instructions for a program Congress expected to be capable of operating.
The experience of the past five decades already suggests otherwise. Only three states don’t administer the CWA’s NPDES program under Section 402, yet only two currently administer assumed Section 404 programs. Florida is now back in federal court defending the federal government’s approval of it. Congress itself recently noted this striking disparity between state administration of Sections 402 and 404.
Some of that history reflects cost, institutional capacity and the complexity of dividing jurisdiction between assumable and non-assumable waters. The ESA litigation adds another potential barrier.
There is also a practical irony. Returning Section 404 permitting to the Corps does not eliminate endangered species review, but it does reduce the FWS’ oversight in the species review process.
As Herschel Vinyard explained, “Florida’s assumed program used a coordinated approach that combined the expertise of the U.S. Fish and Wildlife Service and the Florida Fish and Wildlife Conservation Commission, providing more species protection than the status quo favored by the plaintiffs.”
A workable assumption program should be judged by outcomes as well as organizational charts. Does it protect wetlands? Does it protect listed species? Are permit conditions enforceable? Are cumulative effects appropriately considered? Can violations be detected and corrected? And can applicants determine, with reasonable certainty, what standards apply and which agency is responsible for administering them?
Those are difficult questions, but they are answerable.
Perhaps the D.C. Circuit is correct that the particular mechanism used for Florida did not satisfy the ESA. Courts are supposed to enforce statutes as written, even when doing so complicates another statutory program. But if the final judicial answer is that no realistic consultation structure can accommodate the transfer Congress expressly authorized in Section 404(g), then the problem extends beyond Section 404. It also affects the Section 316(b) program and potentially other programs delegated to states by EPA, fundamentally restricting the cooperative federalism written into the CWA.
Congress can amend Section 404, the ESA, establish a specific consultation mechanism for state-assumed programs or it can decide that federal administration is preferable after all.
What should not persist indefinitely is a statutory program that exists clearly enough to invite states to spend years and substantial public resources pursuing assumption, but cannot actually be implemented because federal law contains no workable mechanism for completing the transfer.
Florida’s case will determine more than who signs a wetlands permit. With the federal appellants broadening the dispute beyond Section 404, the decision could also define how far states may assume responsibility for administering federal environmental programs – and how much authority remains with the federal government once they do.
The stakes therefore extend beyond Florida’s permitting system. They may determine whether Section 404(g) remains a genuine option for states, or merely one that exists on paper, and whether state assumption of federal programs can function as Congress intended.
