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 Violation of the Endangered Species Act:

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:

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.

In Conclusion:

This case highlights the important role environmental approvals can play in successfully advancing development projects. Wetland permitting in particular has had a wild ride over the last several years as the definition of Waters of the United States (“WOTUS”) has been debated in the courts. Florida’s effort to take control of the wetland permit process now likewise has been met with litigation challenges, highlighting the importance of also properly addressing endangered species concerns. Those undertaking development projects should ensure that they are up to speed on the current status of these developments, and that the necessary approvals have been obtained.

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About the Author:

A member in the firm’s FT. Lauderdale office, Charles D. (Chuck) Brecker principally represents residential and commercial real estate builders and developers, as well as investors and joint venturers, in acquiring, financing, developing, constructing, selling, and leasing residential, commercial, and mixed-use projects, many of which consist of vast acreage and vertical mixed-use towers. He can be reached at  954-991-5448 or cbrecker@dickinsonwright.com. To view his full bio, please click here.

Kevin Desharnais, an environmental litigator and counselor with over two decades of experience, practices out of the firm’s Chicago office. He can be reached at kdesharnais@dickinsonwright.com or 312-782-6660, and his biography can be accessed here.