Florida Department of Environmental Protection files Motion to Partially Stay Suspension of 404 Permitting Program
By: David A. Melito, J.D.
As we explained in our post last week, a federal district judge from the District of Columbia issued a February 15 order vacating the delegation of the Federal Clean Water Act (CWA) 404 permitting process to the State of Florida. In that order, Judge Moss sought supplemental briefing from the state and federal defendants on the issue of whether a limited stay of the order could be granted that would minimize disruption in the short term. This stay would allow the state and federal agencies which administer the program to work out a revised scheme allowing the resumption of assumption by the state. The responses, due on February 26, included a Motion for Stay filed by the Florida Department of Environmental Protection (FDEP) and a Supplemental Brief Regarding Stay filed by the federal government (specifically, the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service).
As its primary request, the FDEP sought the implementation of a six-month stay that would grant additional federal agencies the ability to comment on the impacts of 404 permits which “may affect” federal endangered or threatened species and their critical habitats. This would allow this expanded pool of federal agencies to review all currently pending permits which have been already deemed not to have an impact on these species or habitats. Under Florida’s preferred proposed plan, those pending permits which have already been deemed as having a possible effect on endangered or threatened species or their habitats would be given the option of amending their permit application, requesting that DEP transfer their permit application to the United States Army Corps of Engineers—the federal agency tasked with granting or denying federal 404 permits, withdrawing the permit application, or requesting the application be placed in abeyance pending further development in this case. The proposed plan would also ensure that Florida would retain authority over 404 permits which would require their own federal review under specified portions of the Endangered Species Act and would ensure that Florida retains enforcement authority for all current and pending permits and all illegal unpermitted activity. Under the CWA, federal agencies retain concurrent enforcement authority regardless of the outcome of this stay application.
The federal government, in its supplemental brief, argued that the proposed plan by Florida would result in a “partial assumption” of the 404 program and that such an assumption would be unworkable and would violate federal regulations. Recognizing this possibility, Florida also proposed an alternative plan to be implemented during the stay period: the implementation of a program modeled on those used by New Jersey and Michigan—the only other two states who have assumed federal 404 permitting. As these programs have been previously approved by the federal government and have not been invalidated, Florida stresses that they provide a viable alternative model in the event the court finds the state’s preferred scheme is unworkable or illegal.
There is currently no indication on when Judge Moss will make a ruling on Florida’s request for a stay, but Oertel, Fernandez, Bryant & Atkinson will continue to monitor the progress of this case and will continue to provide you with updates of any notable development as they occur. We encourage you to call and seek consultation with our experienced attorneys if you have any 404 or other permitting needs.
Information contained in this post is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Oertel, Fernandez, Bryant & Atkinson PA representative or other competent legal counsel.