Updated: Florida 404 Permitting Changes
Posted on: February 16th, 2024
Original Article: https://floridaspecifier.com/featured/breaking-florida-wetlands-regulatory-program-vacated-by-federal-judge/
Updated February 26, 2024
A Feb. 15 court ruling has left Florida’s wetlands permitting program without a future, and news Monday that the U.S. Department of Justice filed a supplemental brief in the case stating that allowing Florida to continue with some limited control over permitting is unworkable and illegal under the Clean Water Act provides no clear direction.
The Florida Department of Environmental Protection is pursuing options, sources say, to stay or reverse the decision of Judge Randolph Moss from the U.S. District Court in Washington, D.C. In the meantime, there is still no option for 404 applications to continue to be processed in much of the state.
U.S. Army Corps of Engineers sources have confirmed that preparations are underway to once again process all 404 applications in Florida. For the last 10 days, there has been no reviewing agency for 404 applications outside of Corps retained waters. Look for an official update to be posted to the Corps’ Jacksonville District website as soon as Wednesday.
Late on Feb. 15, Moss published his decision to vacate the EPA’s “assumption decision” and its “approval of Florida’s assumption application,” effectively ending the Florida “404 program” (for protection of federal wetlands). Florida’s state wetlands regulations and permitting authority (called Environmental Resource Permits or ERP) remain unaffected.
The rationale for his decision is the EPA and US Fish and Wildlife Service “committed a serious error” by allowing the state program to utilize Section 7 (of the Endangered Species Act) Incidental Take protection, which is limited to federal agencies and actions and provides legal protection for certain “incidental” or minor impacts to endangered species. The Service’s Biological Opinion issued in support of the Florida program incorporated a “programmatic Incidental Take Statement” that was based on an innovative “technical assistance program” involving the Service and Florida Fish and Wildlife Conservation Commission. The judge found this to be an error that could not “easily be remedied on remand” and as such, issued a vacatur of the entire program.
In his 97-page Opinion, the judge did acknowledge that approximately ten percent of permits issued under this program “may effect” endangered species, and the vast majority of permits have “no effect” on endangered species or their habitats. He opened the door to a limited stay of this decision for this portion of applications. That decision would have had to follow a specific request on how to make such a determination. However, the Department of Justice filing today appeared to rule out this option.
In the meantime, all federal wetland permits pending with FDEP cannot be acted upon. It is unclear how long that will remain the case and under what process will pending applications be transferred to the Corps.
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