By STAFF REPORTS
The Florida Department of Environmental Protection has appealed a U.S. District Court’s final decision that stripped the agency of its authority to issue permits for projects that affect federal wetlands.
U.S. District Judge Randolph Moss in Washington D.C. in April issued a final order that set the stage for the Department to appeal his decision to a higher court. In February, Moss published his decision to vacate the EPA’s “assumption decision” and its “approval of Florida’s assumption application,” effectively ending the Florida 404 program for protection of federal wetlands.
In the weeks following the ruling, the Department sought a stay, which was rejected, and it then sought a final order so it could appeal, which has occurred. If the District Court ruling is upheld on appeal, permitting authority will remain with the U.S. Army Corps of Engineers in Jacksonville. If it is overturned, authority could return to the Department.
In late February, the Corps acknowledged that under the current court ruling, it was the only entity in the state that held authority to review these types of permits and began accepting applications. At the same time, the Corps said, “However, applicants and stakeholders should recognize the uncertainty surrounding the current litigation.”
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 (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.
State assumption of the federal wetlands program utilizes the local expertise of hundreds of DEP’s environmental experts and allows DEP to harness state resources, streamlining permitting procedures, and eliminating duplicative reviews that slow progress on public works and environmental projects. 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 47 states.
Moss in his February 97-page Opinion rationalized that the EPA and FWS “committed a serious error” by allowing Florida to utilize Section 7 (of the Endangered Species Act) Incidental Take protection, which is limited to federal agencies and actions and provides legal protection for certain “incidental” or minor impacts to endangered species.
On March 21, the U.S. House of Representatives passed the Creating Confidence in Clean Water Permitting Act (H.R. 7023), which includes an amendment by U.S. Representative Aaron Bean that would codify the U.S. EPA’s approval of Florida’s Section 404 Program. It is unlikely that the amendment will survive a vote in the U.S. Senate or a veto from President Joe Biden.
