Groups: Wetlands Permitting Ruling Should Stand

TALLAHASSEE, Fla. — Environmental groups Friday urged a federal appeals court to uphold a district judge’s ruling that the U.S. Environmental Protection Agency in 2020 improperly shifted permitting authority to Florida for projects that affect wetlands.

U.S. District Judge Randolph Moss, in a February ruling, found that the shift violated the Endangered Species Act. He vacated the EPA’s 2020 decision and gave the permitting authority to the U.S. Army Corps of Engineers. Florida and the federal government appealed.

Moss’ ruling focused, in part, on whether the U.S. 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.

In the 112-page brief filed Friday at the U.S. Circuit Court of Appeals for the District of Columbia, attorneys from the Earthjustice legal organization wrote that the Fish and Wildlife Service “produced a programmatic biological opinion that sidestepped all ESA (Endangered Species Act)-required analyses.”

“Congress enacted the ESA to ensure the protection, survival, and recovery of threatened and endangered species,” the brief said. “To that end, the statute’s plain language requires analysis of a proposed action’s effects on protected species and imposes specific requirements before exempting incidental take from ESA liability.”

In addition to disputing Moss’ legal conclusions, the state has argued his decision to give authority to the Army Corps of Engineers — which had the authority before the 2020 shift — has led to delays in permitting for projects. 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.

The EPA approved the transfer in December 2020, about a month before former President Donald Trump’s 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 later intervened to defend the transfer.

In his February ruling, Moss 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.”

But in separate briefs filed in September at the appeals court, state and federal attorneys 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 state’s brief said that in the three years after the permitting shift was approved, “Florida processed thousands of permit applications, issued over 700 individual permits, and denied over 300 applications, all under continuous, permit-by-permit federal oversight. Florida also routinely revised permits and accepted Fish & Wildlife’s proposed mitigation recommendations, consistent with the technical-assistance process.”

But the environmental groups’ attorneys wrote in Friday’s brief that Moss “rejected the agencies’ reliance on the ‘technical assistance’ process as a proxy for ESA compliance.”

“By its terms, the technical assistance process did not require FWS to do anything other than receive and review state permit applications,” the Earthjustice attorneys wrote. “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.”

The state and federal governments have largely agreed that Moss’ ruling should be overturned. But they have disagreed over a concession by the federal government that the EPA erred by failing to consult with another agency, the National Marine Fisheries Service, before approving the permitting shift.

Federal attorneys said in September the case should be sent back to Moss — and the Army Corps of Engineers should continue handling permitting until the issue about the National Marine Fisheries Service is resolved.

“In this circumstance, where plaintiffs’ success on their full complement of claims remains uncertain, but the disruptive consequences of … (permitting) jurisdictional ping-pong are clear, the appropriate course is for the district court’s vacatur of EPA’s assumption to remain in place for the limited duration of district court proceedings on remand,” the federal brief said.

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