By Jim Saunders ©2024 The News Service of Florida
TALLAHASSEE — Florida this week argued a federal appeals court should overturn a ruling about permitting for projects that affect wetlands, contending that “disastrous consequences flow” from the ruling.
Attorneys for the state late Monday filed a 74-page brief at the U.S. Circuit Court of Appeals for the District of Columbia in the battle about a 2020 decision by the U.S. Environmental Protection Agency to shift permitting authority to the state.
Siding with environmental groups that filed a legal challenge, U.S. District Judge Randolph Moss in February vacated the 2020 decision. 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. But the state’s brief late Monday, in addition to disputing Moss’ legal conclusions, warned of “disastrous consequences” for permitting under what is known as Section 404 of the federal Clean Water Act.
“The Corps’ resources dedicated to processing permits in Florida do not compare to those Florida has dedicated to its program,” the brief said. “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.”
The EPA approved the transfer of the permitting authority 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.
The legal organization 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.
Moss’ February 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 transfer. Incidental takes are situations in which threatened or endangered species could be killed or harmed as a result of what are allowed activities.
Moss said a 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 the state’s brief and a separate brief filed Monday by federal-government attorneys disputed Moss’ conclusions. Among other things, they pointed to a “technical assistance” process that involves 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.”
Also, the state argued that Moss’ ruling improperly required an “upfront accounting of all species- and site-specific effects and numerical take limits — something Fish & Wildlife determined was scientifically impossible for Section 404 program approval and the unknowable permitting decisions it triggers.”
The federal government’s brief Monday largely agreed with the state’s arguments that Moss’ ruling should be overturned. But it said federal officials conceded that the EPA had erred by failing to consult with another agency, the National Marine Fisheries Service, before approving the permitting shift.
The state disagreed, saying Moss “erred by second-guessing EPA’s findings on marine species.”
The federal-government attorneys said the case should be sent back to Moss — and the 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.
Attorneys for the environmental groups face a Nov. 1 deadline for filing a response to the state and federal briefs.
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 February court filing, the state said Moss’ ruling could affect permit applications for a wide range of projects, including roads, housing and construction of hospitals and schools.
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