Federal Judge Vacates Florida’s 404 Permitting Authority

May 2024 FloridAgriculture e-Newsletter

On February 15, 2024, the U.S. District Court for the District of Columbia issued an order that nullified the U.S. Environmental Protection Agency’s (EPA) approval of Florida’s application to take over permitting authority from the U.S. Army Corps of Engineers (USACE) under Section 404 of the Clean Water Act (CWA) within the state. The court’s decision was based on allegations that the federal defendants violated the Administrative Procedure Act (APA) and the Endangered Species Act (ESA) during the approval process, which occurred in the final days of the Trump administration.

Under the ESA, any action that might harm endangered species requires consultation with the U.S. Fish and Wildlife Service (FWS) to ensure the action does not jeopardize the species’ existence. When Florida assumed the 404-permitting program, there was no clear process for ESA consultation. To address this, the EPA and FWS conducted a programmatic consultation resulting in a biological opinion (BiOp) and incidental take statement (ITS) meant to protect future permittees from ESA liability.

However, the court found this process deficient, particularly because it lacked species-specific analysis and numerical take limits as well as determined that the technical assistance process proposed by the defendants was not a lawful substitute for ESA procedures. Consequently, the court ordered the vacating of EPA’s approval of Florida’s assumption application, effectively reverting permitting authority to USACE until further resolution.

The ruling would affect pending and future permits, significantly impacting Florida’s environmental regulation landscape. The court acknowledged potential disruption but emphasized the importance of complying with ESA requirements. It was uncertain how state and federal agencies would respond, but the decision underscores the complexity and sensitivity of environmental permitting processes, especially concerning endangered species protection.

On February 26, shortly after the Court ruled to vacate Florida’s permitting authority, the Florida Department of Environmental Protection (FDEP) filed a motion for a partial stay, which would allow for the state to process the 1,500 permits without an ESA designation. Of those permits, around 90% would be allowed if the stay was granted and could move forward through FDEP. The preceding judge called for a conference regarding the issue on April 4th in Washington D.C., and on April 12th, Judge Randolph Moss issued an order to deny FDEP’s motion for a stay. As a result, Florida quickly launched an appeal to challenge the decision by U.S. District Judge Moss at the U.S. Circuit Court of Appeals for the District of Columbia. It is uncertain whether FDEP will regain authority to issue 404 permits again, but in the meantime, all pending and future 404 permits will be processed by USACE.