By LUNA PHILLIPS AND PHILIP SLIGER
A long battle over wetland permitting jurisdiction in Florida may be extended for another round as the U.S. EPA (EPA), the U.S. Fish and Wildlife Service (USFWS) and the State of Florida filed petitions in August for the case over Florida’s wetlands permitting program to be reheard before the D.C. Circuit Court of Appeals.
Earlier this year, in a divided opinion, the D.C. Circuit affirmed the District Court’s decision to vacate Florida’s program implementing Section 404 of the Clean Water Act (CWA), finding that the program violated the Endangered Species Act (ESA). The Federal appellants now ask the court to review the decision, which has evolved beyond the fate of Florida’s permitting program into a broader question about how federal agencies may satisfy the ESA when approving programs whose project-specific effects cannot yet be known. If granted, a review by the full D.C. Circuit could reignite the battle over Florida wetlands permitting authority for months to come.
How Florida’s Wetlands Permit Fight Got Here
The fight over who issues Section 404 dredge-and-fill permits, and the date that comes next.
- Dec. 2020 – EPA approves Florida’s 404 program, only the third in the nation
- Jan. 2021 – Center for Biological Diversity sues in D.C. District Court
- Feb. 2024 – Court vacates the approval on Endangered Species Act grounds
- May 2024 – Permitting shifts back to the federal government
- March 2026 – A divided D.C. Circuit panel largely affirms that ruling
- Aug. 7, 2026 – Federal agencies and Florida petition for a rehearing
- Sept. 18, 2026 – Response to the rehearing petitions is due
If the court grants rehearing it may order more briefing or dispose of the case on the record. If it denies the petitions, the federal agencies and Florida have 90 days to appeal to the U.S. Supreme Court.
FLORIDA’S ASSUMPTION OF THE SECTION 404 PERMITTING PROGRAM
In December 2020, EPA approved Florida’s application to assume Section 404 permitting authority under the CWA, granting FDEP the authority to administer dredge and fill permits in certain waters within the State and making Florida the third state approved to administer the program. Importantly, Florida’s assumption of Section 404 permitting authority relied on a programmatic biological opinion and Incidental Take Statement (ITS) that became the focal point of subsequent legal challenges.
DISTRICT COURT CHALLENGES
Weeks later, on Jan. 14, 2021, a coalition of environmental advocacy groups, led by the Center for Biological Diversity (CBD), filed a complaint in the D.C. District Court, seeking vacatur of Florida’s program. The complaint challenged procedural aspects of the approval and raised various arguments that Florida’s program violated the CWA, the ESA, the Administrative Procedure Act (APA), and the Rivers and Harbors Act (RHA).
On February 14, 2024, the D.C. District Court granted partial summary judgment to CBD on its ESA-related claims only, but deferred ruling on CBD’s non-ESA claims under the CWA, APA, and RHA. In a 96-page opinion, the District Court took aim at the technical assistance process underpinning the USFWS’s programmatic biological opinion, finding it an inadequate replacement for formal Section 7 consultation and species-specific effects analysis under the ESA. The court found that the ITS was arbitrary and capricious due to its reliance on the technical assistance process and its failure to set numerical take limits, finding that the ITS impermissibly granted ESA liability protection without complying with statutory requirements. The court determined that the programmatic approval effectively created an alternative for obtaining incidental take protection outside of ESA Section 7 and Section 10 consultation, which Congress did not authorize.
The District Court’s opinion had the effect of immediately vacating the USFWS’s biological opinion and ITS, as well as EPA’s approval of Florida’s 404 program.
CIRCUIT COURT APPEAL
The Federal Agencies and Florida quickly appealed the decision to the D.C. Circuit and requested the District Court stay its order vacating the program, arguing a likelihood of success on appeal and emphasizing the substantial resources that had been dedicated to the program and the disruption that vacatur would cause. The District Court denied the request for stay in May 2024, and the program has shifted back to being administered by the Federal government in Florida.
Before the D.C. Circuit, the Federal Agencies and Florida argued that the USFWS’s programmatic biological opinion was reasonable given the unknown and unknowable effects of future permitting activities under the program, and that the technical assistance process included sufficient safeguards to determine whether the program would jeopardize listed species. The appellants drew parallels between Florida’s program and the approach upheld by the Second Circuit in Cooling Water Intake Structure Coalition v. EPA, which similarly relied on enforceable technical assistance procedures to support a delegated federal program.
The D.C. Circuit found these arguments unpersuasive and, in March 2026, issued an opinion that largely affirmed the District Court’s ruling. The opinion held that key ESA-related approvals underpinning Florida’s program were unlawful but declined to reach claims under the CWA. The D.C. Circuit found that the Agencies failed to demonstrate that the technical assistance process would be “as protective” as Section 7 consultation and determined that this framework impermissibly circumvented the statutory consultation framework.
PETITIONS FOR REHEARING
Following the D.C. Circuit’s opinion, the Federal Agencies sought several extensions to file a petition to rehear the case, signaling that the parties were considering a rehearing before the D.C. Circuit or a direct appeal to the U.S. Supreme Court. On Aug. 7, 2026, the Federal Agencies and Florida filed separate petitions requesting the D.C. Circuit rehear the case, either before the same three-judge panel or before the entire D.C. Circuit en banc.
Generally, en banc rehearings are not favored and are granted only when necessary to maintain uniformity of a court’s decisions or address issues of exceptional importance. The petitions assert that this case warrants rehearing, both relying on the Second Circuit’s precedent in Cooling Water and arguing that it directly conflicts with the D.C. Circuit’s opinion and creates a circuit split. In Cooling Water, the Second Circuit approved a programmatic, process-based approach for ESA compliance that relied on future technical assistance and permit-level review in lieu of species-specific analysis during approval of the program.
According to the Federal Agencies and Florida, the technical assistance process underpinning the biological opinion and Florida’s assumption of the 404 program is the same as the programmatic framework upheld by the Second Circuit in Cooling Water.
The Federal Appellants’ petition defended the technical assistance process as an allowable mechanism to address inherent unknowns in a programmatic approval and highlighted broader potential implications the court’s decision could have on other state-administered programs, including creating risks for national security and energy reliability.
The State also stressed its enormous investment in assuming the program, which involved years of planning, legislative appropriations and hiring and training hundreds of employees. The State noted that it processed more than 8,700 applications, issued more than 600 individual permits, and instituted hundreds of compliance and enforcement actions over its three years of administering the program.
Like the Federal Appellants, the State also included broader policy rationales supporting its petition, arguing that the court’s decision undermines both Florida’s sovereign authority over its natural resources as well as the concept of cooperative federalism, which the State argues is inherent in the CWA.
WHAT’S NEXT?
Based on the issues raised in the Appellants’ petitions for rehearing, it appears the parties are gearing up to take this appeal the distance. The D.C. Circuit issued an order granting the Appellees an opportunity to file a response to the Appellants’ petitions for rehearing, which would be due on Sept. 18. If the court grants the petition, it may order additional briefing or argument or dispose of the case with the record before it. If the court denies the petition, the Federal Agencies and the State of Florida would have 90 days to appeal the decision to the U.S. Supreme Court.
Luna Phillips is a Shareholder at Gunster in Fort Lauderdale. Philip Sliger is an Associate at Gunster in Orlando.
