Heads Up: Judge retracts delegations to FDEP of “404” authorizations by EPA and USFWS

Plaintiff’s include – Earthjustice, Sierra Club, Miami Waterkeepers, The Conservancy of Southwest Florida, Center of Biological Diversity, St. John’s Riverkeepers, and the Defenders of Wildlife

Defendants include - USEPA, USFWS, USACE, NMFS (National Marine Fisheries Service) and several federal officials sued in their official capacities (collectively, the “Federal Defendants”). Defendants also include the State of Florida and the Florida Department of Environmental Protection (“FDEP”) (collectively, “Florida” or the “State”), which have intervened to defend the assumption and resulting permitting program.

January 1, 2021 the Florida Department of Environmental Protection assumed the role of authorizing agency for the US EPA, USFWS, and USACE of Section 404 (Clean Water Act 1972) permitting activities.  On February 15, 2024 United State District Judge – Randolph D. Moss sided with Plaintiff’s motion of summary judgment:

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for summary judgment, Dkt. 98, is hereby GRANTED with respect to Counts 3, 4, 6 and 10–13 of Plaintiffs’ Amended Complaint, Dkt. 77. The Federal Defendants’ cross-motion for summary judgment, Dkt. 99, and Defendant-Intervenors’ cross-motion for summary judgment, Dkt. 101; Dkt. 102, are hereby DENIED as to those same Counts.

Notable sections from Moss ruling on Centers for Biological Diversity v. Regan ruling: Florida … argued that this programmatic approach was needed because, “thus far, where a state administers the Section 404 program, permittees themselves must avoid entirely adverse impacts to listed species or otherwise seek an incidental take permit under ESA Section 10 separate and apart from the Section 404 permit process, which can take years to complete in contrast to the Section 7 process and is more burdensome for all involved.” Dkt. 112-2 at 3.

According to the State, around ten percent of the Section 404 permits in Florida would require some form of incidental take coverage, including for “many large real estate, mining, agriculture, and utility industry projects with significant economic benefits to the State.” Id. at 3. Moreover, to “facilitate the process” that it had proposed, Florida volunteered to “develop [a biological] assessment on [the] EPA’s behalf or in cooperation with [the] EPA.” Id. at 14 & n.25; see 50 C.F.R. § 402.08. A biological assessment (“BA”) is “information prepared by or under the direction of” a federal agency to determine whether a proposed action may affect listed species. 50 C.F.R. § 402.02. The EPA later used that BA (or, in Plaintiffs’ words, “largely . . . cut and paste[d] it,” Dkt. 98 at 31) to prepare its biological evaluation (“BE”), which it submitted to the FWS to assist in evaluating “the possible effects of [its] potential approval of . . . Florida’s assumption” application. Dkt. 112-4 at 89.

Florida further argued that the ESA is “at least ambiguous” and that, as a result, if the EPA agreed to change its position, it would “likely receive deference under Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).” Id. at 11 emphasis in original).

Please note WEL Blog post dated 2/9/2024 RE: SCOTUS Revisit: Chevron U.S.A. v. Natural Resources Defense Council, Inc.