On Friday, April 12, 2024, the U.S. District Court for the District of Columbia decided it will not stay its February 15 order vacating Florida’s assumption of federal authority under Section 404 of the Clean Water Act (“Section 404”). “The Court is persuaded that a limited stay is neither workable nor desirable,” the opinion stated, and therefore, pending appeal, Florida has no regulatory authority under Section 404, which regulates dredge and fill activities in wetlands and surface waters with a relatively permanent surface water connection to navigable waters. Program jurisdiction will remain with the U.S. Army Corps of Engineers (“ACOE”), where it resided prior to Florida’s assumption in December 2020 and since the U.S. District Court for the District of Columbia vacated that assumption on February 15, 2024. The vacation ruling, the result of cross motions for summary judgment on claims related to the Endangered Species Act (“ESA”), affected only future and pending permits – leaving those issued by the state in the last three years undisturbed.

In December 2020, Florida became the third state in the country to assume this regulatory authority from the federal government – following Michigan and New Jersey. Plaintiffs, led by the Center for Biological Diversity, filed suit in January 2021, challenging the assumption on procedural and substantive grounds. The cross motions for summary judgement on claims related to the ESA were the first rulings in the case to have practical impacts on Section 404 administration in Florida. As we previously reported, the court granted the plaintiff’s motion on February 15, 2024, vacating EPA’s decision to approve Florida’s Section 404 permitting program, but inviting motions for partial stay of the vacatur. The court held that both U.S. Environmental Protection Agency (“EPA”), and U.S. Fish and Wildlife Service (“FWS”) had violated the ESA, FWS by issuing a Biological Opinion (“BO”) and Incidental Take Statement (“ITS”) for the program as a whole that did not conform to the minimum requirements of the ESA, and EPA by relying on those documents in its program approval. 

The ESA requires federal agencies consult with the FWS and/or the National Marine Fisheries Service (“NMFS”) on all actions that may affect a listed species or designated critical habitat. If an adverse effect is found, the wildlife agencies must prepare a detailed BO determining whether the proposed activity will jeopardize the continued survival of the listed species. If “reasonable and prudent measures” are incorporated into the project to minimize impacts to listed species, an ITS can be added to the BO, authorizing the incidental “take” (harm, harassment, or death) of a listed species within the specified parameters. The BO included a programmatic ITS that authorized take of listed species associated with individual permits if a specified technical assistance process was followed. This approach was unique; the Michigan and New Jersey programs do not include blanket incidental take authorizations. The Court found both the BO and ITS associated with Florida’s assumption violated the ESA due to a lack of specificity.

In its February ruling, the Court invited the federal defendants (FWS, EPA and the ACOE) and the State of Florida, Florida Department of Environmental Protection (“FDEP”) to seek a limited stay of the decision, if such a stay was “workable and desirable.” The State of Florida and FDEP (collectively, “Florida Intervenors”) sought a six-month stay – with the option for Court approved extensions – under which Florida would retain all enforcement capabilities under Section 404, and permitting authority unless, at any time during permitting, one or more of the wildlife agencies determined the project may affect listed species. If such a determination was made, the applicant could: 1) instruct the state to hold the application in abeyance until further notice; 2) amend the proposed activities to the point they receive a no effect determination; 3) withdraw the application; or 4) request the state transfer the application to the ACOE for processing.

The federal Defendants, however, opposed a stay as unworkable and undesirable. According to the federal Defendants, a stay would enhance confusion, and would amount to a prohibited partial assumption of Section 404 authority; they claim resources would be better spent by allowing the ACOE to begin processing applications. The Court acknowledge the number of logistical challenges presented by a stay and resulting split program and found “It is not the Court’s role to develop such a program over the objection of the federal agencies, nor would such a judicially mandated approach come dressed for success.” 

As an alternative to the stay, and in hopes of avoiding unlawful partial assumption, Florida suggested the Court eliminate programmatic protection for the take of a listed species – which was the basis of the ESA violations found by the Court – and instead require projects expected to result in a “take” obtain an “incidental take” permit from the relevant federal agency. A similar method has been approved in Michigan and New Jersey – the only other states to have assumed Section 404 jurisdiction. In its April 12 opinion, the Court, however, pointed out Florida has previously relied on the abundance of protected species in the state as evidence of the essential need for programmatic take protection, and the Court does not have the authority to approve what was not proposed in Florida’s assumption application and therefore was not considered by the EPA.

In addition to denying the stay, the Court granted Florida’s motion for partial final judgement on all claims in the complaint except one. The remaining claim was directed against the ACOE and challenged the Corps’ determination as to which waters it would “retain” and which could be assumed by Florida. The Court found this the only claim not rendered moot by vacatur of Florida’s permitting program. Florida is expected to appeal the Court’s final decision.  We will continue to monitor this closely. Stay tuned to this space for updates.