Florida State 404 Permitting Delegation Invalidated by Federal Judge
By: David A. Melito, J.D.
Late Thursday afternoon, a federal judge for the District of the District of Columbia found that the 2020 delegation of dredge and fill permitting from the federal government to the state of Florida was improperly approved. This permitting is required under Section 404 of the Federal Clean Water Act which allows for the United Stated Army Corps of Engineers (ACE) to delegate authority for the permit issuance to individual states upon certain conditions being met. In the case of Ctr. for Bio. Diversity v. Regan, No. 21-119 (RDM) (D. D.C. 2024), Judge Moss handed down an opinion which has the effect of temporarily suspending Florida’s issuance of any dredge and fill permit issued pursuant to the delegation. The opinion specifically granted summary judgment for the Plaintiffs, the Center for Biological Diversity, Defenders of Wildlife, the Sierra Club, the Conservancy of Southwest Florida, Florida Wildlife Federation, Miami Waterkeeper, and St. Johns Riverkeeper, holding that the programmatic biological opinion and the incidental take statement—both of which are mandated by the federal Endangered Species Act (ESA)—were inadequately performed.
The decision results in a temporary freeze of the Florida state 404 permitting program. Accordingly, the Florida Department of Environmental Protection (DEP) has suspended all 404 permitting processes. However, Judge Moss Made clear that the decision will be supplemented following proposals by the parties which are intended to create a test through which the Court can determine which permits implicate the Endangered Species Act and allow the processing of those permits which do not. It is currently unclear what will happen with respect to those permits which do have ESA implications. Oertel, Fernandez, Bryant & Atkinson’s (OFBA) attorneys have been in regular contact with DEP since the issuance of the decision and are working to ensure that our clients have the most up-to-date information available as the agencies involved implement practices consistent with the ruling.
The Court noted that the decision may cause significant disruption, but ultimately determined that, despite the chance of disruption, “the record says little about the extent of that disruption, and, in any event, setting aside unlawful agency action almost always results in some disruption.” In determining that the disruption is not unwarranted, the Court made clear that it “is skeptical that the [Federal Environmental Protection Agency] and the [Federal Fish and Wildlife Service] will be able to replicate the current assumption program on remand and, more generally, is skeptical that the FSW and EPA can accord incidental take liability protection on future, state-permittees without requiring” specified consultation under the ESA.
Despite this admonition, the Court determined that it was appropriate to allow the Defendants, the U.S. EPA, U.S. FWS, and the U.S. ACE, to seek a limited stay of the decision with regard to projects which do not have ESA implications. The parties are required to submit proposals detailing the manner in which this delineation will be made on or before February 25, 2024. As the Court works through these issues, future updates will be provided. OFBA stands ready to aid you through these 404 permitting changes, and we encourage you to call and seek consultation for these or any permitting issues you may have.
Information contained in this alert 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.