404 Intervenors file Appeal! Expected decision May, 21…

MOTION TO STAY PENDING APPEAL

Finally, the DOJ made it possible to file for an appeal of the District Judge Moss’s ruling for Plaintiff. A few excerpts from the Case No. 21-119 (RDM) are below. The Second Circuit court rejected each of the core underpinnings of the district court’s (Judge Moss) opinion.

First, the district court concluded that the “bottom line is that the Federal Defendants were required to conduct the required species-specific analysis because Florida structured, designed, and implemented its program so as to provide incidental take liability upfront to itself and all future state permittees.” But the Second Circuit rejected that argument, concluding that “nothing in the ESA requires the Services to assess every future ‘phase’ of an agency action on a site specific or species-specific basis.”

Vacatur has also thrown Florida’s regulators and regulated community into permitting chaos, deprived Florida of the benefits of years of effort and investment into a comprehensive state program, put over 1,000 pending permit applications into regulatory limbo, blocked Florida agencies from performing legal duties, and deprived the State of significant permitting efficiencies obtained from consolidating federal and state wetlands-permitting requirements.

My perspective - the Intervenors will win the appeal and Florida’s DEP will continue 404 permitting in our State.