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Federal Court Strikes Down EPA Approval of Florida Wetlands Program; Florida EPA Seeks Partial Stay in Response


Florida - Tuesday February 27, 2024: The D.C. District Court has ruled in favor of environmental groups who filed suit against the U.S. Environmental Protection Agency (US-EPA) and the U.S. Fish and Wildlife Service (US-FWS) over their decision to allow the Florida Department of Environmental Protection (Florida-DEP) to takeover of the Clean Water Act wetlands permitting program.

The Federal Court concluded that US-EPA and US-FWS made an end run around the Endangered Species Act. The Court struck down Florida’s program on February 15th after reviewing the impacts that wetland permits issued by Florida DEP have had on imperiled species.

Under the court’s new order those seeking permits to impact wetlands must use Endangered Species Act provisions to ensure that threatened and endangered species are protected in Clean Water Act permitting.

In a statement issued today, the Florida DEP said previously issued 404 permits are valid, and the permittee may continue to operate under that authorization. Any new applications or applications in process are immediately placed on hold until further notice.

Seven environmental groups, represented by Earthjustice, sued the EPA in January 2021 in U.S. District Court for the District of Columbia challenging the transfer of federal wetland permitting authority to Florida. The groups warned that the handover from the Trump administration to Florida’s DeSantis administration would “degrade and ruin Florida’s natural landscape, all in violation of federal environmental laws.”

The seven plaintiffs are the Center for Biological Diversity, a national, nonprofit conservation organization, joined by Defenders of Wildlife, the Sierra Club, the
Conservancy of Southwest Florida, Florida Wildlife Federation, Miami Waterkeeper, and St. Johns Riverkeeper.

“Today’s ruling sends a clear signal that Congress meant what it said when it passed the Endangered Species Act," said Earthjustice attorney Christina I. Reichert. “No state can be allowed to take over a federal program as important as the Clean Water Act’s wetlands permitting program by making an end run around the Endangered Species Act.”

The court’s ruling resolves part of the lawsuit that concerns the federal agencies’ failure to comply with the Endangered Species Act. The remainder of the suit, which concerns violations of the Clean Water Act and Administrative Procedure Act, is ongoing.

Harm to Florida Panthers

In December 2023 Earthjustice requested a preliminary injunction on behalf of two of the plaintiffs, the Center for Biological Diversity and the Sierra Club, as Florida was poised to issue state permits for sprawl development projects that would have caused irreparable harm to Florida panthers and imperiled crested caracara birds. The projects are planned for a key wetlands area and critical wildlife corridor where an estimated 120 to 230 endangered panthers remain in their last territory on Earth.

The Fish and Wildlife Service estimated that together the projects would kill between seven and 26 panthers each year from vehicular collisions. Another three panthers per year would be harmed by the extensive habitat loss. These projects are among several large developments planned in the wetland areas and panther habitat of eastern Collier and Lee counties, near the Florida Panther National Wildlife Refuge.

Rather than rule on the request for a preliminary injunction, the court ruled in favor of the environmental groups on the underlying claims.

“We’re talking about the destruction of some of the last remaining habitat for one of the most endangered animals in the world,” said Earthjustice attorney Bonnie Malloy. “Restoring the Endangered Species Act protections will ensure that these projects get the analysis and review Congress intended to protect threatened and endangered species.”

“Protecting the nation’s biodiversity has never been more important,” said Tania Galloni, managing attorney for the Florida office of Earthjustice. “That’s why we’re fighting to make sure state programs comply with all federal protections for endangered species.”

Florida DEP Response

In response to the D.C. Federal Court's ruling divesting Florida DEP of its authority to issue 404 Program permits in the state, the Department filed a motion Monday (February 26) seeking a partial stay of the court's order.

Will my project be affected?

There is limited information available at this time, but all projects in the process of obtaining a 404 application are currently on hold indefinitely. At this time, previously issued 404 permits are valid, and the permittee may continue to operate under that authorization. Any new applications or applications in process are immediately placed on hold until further notice.

Statement from Florida DEP:

The Florida Department of Environmental Protection (DEP) is currently evaluating all legal options in light of the court’s order.

All activity under the State 404 Program is paused until further order of the court, including the more than 1,000 State 404 permit applications that were pending before DEP. As an initial step to limit this disruption, DEP filed a motion seeking a partial stay so Florida may continue to process the applications that would not affect any listed species. 

Unless stayed, the court’s ruling will disrupt pending permit applications, including those associated with the restoration of America’s Everglades and critical infrastructure projects for a more resilient Florida. 

Updates on the status of Florida’s State 404 Program will be routinely posted on this webpage.