Florida Loses Wetland Permitting Authority

In a landmark decision, a federal court has ruled against the Environmental Protection Agency (EPA) and U.S. Fish and Wildlife Service, determining that their approval of Florida’s takeover of the Clean Water Act wetlands permitting program violated federal law. The court’s decision, which came as a result of a lawsuit filed by seven environmental groups, including the Center for Biological Diversity, Defenders of Wildlife, and the Sierra Club, signals a pivotal moment for environmental conservation.

The underlying action challenged in the litigation was the State of Florida’s application to U.S. Environmental Protection Agency (“EPA”) requesting authority for Florida to administer the Clean Water Act’s Section 404 permitting program, which allows for the dredging and filling of Waters of the U.S., including wetlands. Successful transfer of the permitting program would have made Florida only the third state with such authority, with only Michigan and New Jersey having successfully obtained approval for state Section 404 permitting programs.

Because the issuance of Section 404 permits could potentially impact endangered or threatened species, EPA’s action in transferring the 404 permitting authority triggered the Endangered Species Act’s requirement for consultation with the U.S. Fish and Wildlife Service (“FWS”). Asserting that the process for consultation on individual permits was “burdensome,” “time-consuming,” and “resource intensive,” Florida, in its program, proposed to substitute a “technical assistance process” involving consultation with FWS and EPA in place of ESA review for individual permits. The agencies, therefore, sought to rely on a Programmatic Biological Opinion and Programmatic Incidental Take Statement issued by the FWS to seek approval for the transfer of 404 permitting authority. The court determined that the alternative review process proposed did not fulfill the requirements of the ESA, and found that the programmatic Biologic Opinion and Programmatic Incidental Take Statement were inadequate to support the transfer of Section 404 permitting authority to Florida.

The lawsuit, filed in January 2021 by Earthjustice on behalf of environmental organizations, challenged the transfer of federal wetland permitting authority to Florida. The court’s decision resolves a portion of the lawsuit related to the agencies’ failure to comply with the Endangered Species Act. However, the remaining claims concerning violations of the Clean Water Act and Administrative Procedure Act are still ongoing. On February 26, 2024, Florida filed a motion for a limited stay to preserve portions of the state’s program. EPA has opposed the stay, asserted that the resulting bifurcated program would be impracticable and unworkable.