By HERSCHEL VINYARD
Partner in Charge,
Adams and Reese LLP
and JEFF LITTLEJOHN
Senior Policy Advisor,
Adams and Reese LLP
February 29, 2024
“Error: 404 not found.” The dreaded message you see when you visit a website that no longer exists. A District of Columbia federal district court judge ended the existence of Florida’s “404 program” (for protection of federal wetlands) when he published his decision to vacate the EPA’s “assumption decision” and its “approval of Florida’s assumption application,” ruling that the EPA acted illegally when it transferred the federal wetland permitting to the state in 2020.
All federal wetland permits pending with Florida Department of Environmental Protection (FDEP) cannot be acted upon by FDEP. An existing Florida 404 dredge and fill permit is still valid. But all new 404 permits must be submitted to the U.S. Army Corps of Engineers.
In December 2020, 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 could halt progress on public works and environmental projects. Florida was one of three states to assume the 404 federal permitting, in addition to Michigan and New Jersey. The Army Corps issues 404 permits in the other 47 states.
In Center for Biological Diversity, et. al. v. Michael S. Regan, et. al., 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, Endangered Species Act, and Rivers and Harbors Act in the transfer of 404 permitting authority to Florida.
Judge Randolph Moss from the U.S. District Court for the District of Columbia granted partial summary judgment in favor of the Plaintiffs and issued a 97-page opinion with the rationale 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.
The USFWS’s Biological Opinion issued at the outset of Florida’s assumption process incorporated a “programmatic Incidental Take Statement” that was based on an innovative “technical assistance program” involving USFWS and Florida Fish and Wildlife Conservation Commission. This technical assistance program required the USFWS to prepare an expansive “technical assistance memo” which was strikingly similar to a Biological Opinion. The USFWS provides that memo, including mitigation requests, to FWC for the purpose of including those requests as an enforceable part of the 404 permit.
Hundreds and sometimes thousands of pages of data are reviewed by the USFWS to produce its technical assistance memo provided to the Florida Fish and Wildlife Conservation Commission (FWC) as part of each 404 permit handled by the FDEP.
Nevertheless, the judge issued a vacatur of the entire program. The decision reads:
After considering these requests and weighing the seriousness of the defects as well as the potential disruptive consequences of vacatur, the Court concludes that the appropriate remedy is to VACATE the EPA’s approval of Florida’s assumption application … The Court will permit Defendants to seek a limited stay of that vacatur within ten days of this decision. Any such request should exempt all pending and future permit applications that ‘may affect’ any listed species under the jurisdiction of the FWS or the NMFS (National Marines Fisheries Service) and should propose a mechanism for determining which permit applications ‘may affect’ listed species. … until such a limited stay issues, the State is without any authority to issue a Section 404 permit, and all Section 404 permitting authority in the State of Florida is vested in the Army Corps of Engineers.
Judge Moss did acknowledge that approximately 10 percent of permits issued under this program “may affect” endangered species, and the majority of permits have “no effect” on endangered species or their habitats. Judge Moss opened the door to a limited stay of this decision for the “no effect” 404 applications. That decision would have to follow a specific request from EPA on how to make such a determination. Unfortunately, the federal defendants have elected not to pursue a stay of any part of Judge Moss’s decision, including for the “no effect” applications. FDEP has, however, filed a motion for a stay. It is unclear at this time just how long it will take for the Court to rule on the other remaining counts of the litigation.
The DC district court’s vacature of Florida’s assumption of the 404 Program occurred because Judge Moss concluded that the detailed technical assistance memo process did not sufficiently protect endangered species. If the ruling stands, it ends Florida’s 404 permitting process for the near term. The Army Corps of Engineers should be prepared for a tidal wave of 404 applications. The well-being of Florida’s economy depends on it.
