A federal appeals court will hear arguments in May in a closely watched case about whether the U.S. Environmental Protection Agency in 2020 improperly shifted permitting authority to Florida for projects that affect wetlands.
The U.S. Circuit Court of Appeals for the District of Columbia on Friday scheduled arguments May 5 as Florida and the EPA seek to overturn a district judge’s ruling in the lawsuit filed by conservation groups.
In addition to conservation groups, the case has drawn heavy attention from some of Florida’s most-powerful business groups — and has spurred federal legislation seeking to ensure the state has the permitting authority.
Siding with the conservation groups, U.S. District Judge Randolph Moss last year vacated the EPA’s 2020 decision to shift the permitting authority. Moss ruled that actions by the EPA and the U.S. Fish and Wildlife Service in approving the shift violated the federal Endangered Species Act.
The ruling returned the permitting authority to the U.S. Army Corps of Engineers, which had it before the shift. The EPA and the state appealed Moss’ ruling, with the state arguing, in part, that it is better positioned to handle what are known as Section 404 permits than the Army Corps.
“The corps’ resources dedicated to processing permits in Florida do not compare to those Florida has dedicated to its program,” attorneys for the state wrote in a brief this month. “All the while, the staffing and infrastructure set up for Florida’s program — and the regulated community — suffer the consequences of the district court’s ruling, as delays have now pervaded Section 404 permitting in the state.”
But lawyers from the Earthjustice legal organization, which represents the conservation groups, wrote in a brief this month that the EPA and the U.S. Fish and Wildlife Service, at Florida’s request, sought to “evade” requirements in the Endangered Species Act.
“Florida hosts some of the nation’s most iconic — and imperiled — wildlife, including the Florida panther and West Indian manatee,” the Earthjustice lawyers wrote. “These species persist today because of the Endangered Species Act, which affords them a suite of critical substantive and procedural protections to ward off the threat of extinction.”
Moss’ ruling focused, in part, on whether the Fish and Wildlife Service properly prepared a biological opinion and what is known as an “incidental take statement” as part of the process of approving the permitting transfer. Incidental takes are situations in which threatened or endangered species could be killed or harmed as a result of what are allowed activities.
The district judge said the biological opinion and incidental take statement did not comply with the Endangered Species Act and another law known as the Administrative Procedure Act. He wrote that because the biological opinion and incidental take statement that the Fish and Wildlife Service “issued in this case were facially and legally flawed, the EPA unreasonably relied on those documents in approving Florida’s assumption application.”
The EPA approved the transfer in December 2020, about a month before President Donald Trump’s first administration ended. The move made Florida only the third state, after Michigan and New Jersey, to receive the authority, which involves dredge-and-fill permits.
Earthjustice filed a lawsuit in 2021 against the federal government on behalf of the Center for Biological Diversity, Defenders of Wildlife, the Sierra Club, the Conservancy of Southwest Florida, the Florida Wildlife Federation, Miami Waterkeeper and St. Johns Riverkeeper. The state intervened to defend the transfer.
In appealing, state and federal attorneys have pointed, in part, to a “technical assistance” process included in the transfer approval. That process involved the state sending permit applications to the Fish and Wildlife Service for review and potential conditions.
“The agencies surveyed Florida’s species landscape and evaluated whether Florida’s new program — with close federal coordination — would prevent effects that are likely to jeopardize species’ continued existence or adversely modify critical habitat,” the state’s attorneys wrote in the brief this month. “A key feature of the program is a binding ‘technical-assistance process’ whereby federal and state agencies collaborate during the permitting process to evaluate each project’s effects on listed species.”
But lawyers for the conservation groups wrote that federal officials could not avoid Endangered Species Act obligations through the technical assistance process.
“By its terms, the technical assistance process did not require FWS (the Fish and Wildlife Service) to do anything other than receive and review state permit applications,” the conservation groups’ brief said. “It did not require FWS to use the best available science to analyze species-specific effects, make species determinations, propose protective measures, or set incidental take limits. And it did not require Florida to have input from FWS before it could issue permits. Appellants’ (the federal and state governments’) scheme would have allowed FWS to violate the ESA (Endangered Species Act) by evading its duties at both the programmatic and permit levels.”
The state’s efforts to defend the transfer have been backed by groups such as the Florida Chamber of Commerce, Associated Industries of Florida and the Association of Florida Community Developers. In a court filing last year, the state said Moss’ ruling could affect permit applications for a wide range of projects, including roads, housing and construction of hospitals and schools.
Also, U.S. Sen. Rick Scott and U.S. Sen. Ashley Moody, both Florida Republicans, announced last week that they had filed legislation that they said would “codify” the state’s authority to issue the disputed permits.
