In its report last month on The Biggest Enviro Cases To Watch In 2024, Law360 identified “Florida’s Clean Water Act Authority” as one of those cases. That case began more than three years ago when environmental groups challenged EPA’s approval of Florida’s application to assume authority for issuing dredge and fill permits under Section 404 of the Clean Water Act, 33 U.S.C. § 1344. That approval transferred to Florida—from EPA and the Army Corps of Engineers—responsibility to issue the kinds of permits (often involving “wetlands”) at issue in Sackett v. EPA, 598 U.S. 651 (2023). The agency’s decision was the culmination of a multi-year process that relied on programmatic consultation approaches adopted during the Obama Administration. Moreover, even though the approval was one of the last major actions of the Trump Administration’s EPA, the approval has been defended by the Biden Administration.
Because the program for approving applications like Florida’s involves discretionary review of impacts on endangered species and their critical habitats, EPA has taken the position that it was required by Section 7 of the Endangered Species Act, 16 U.S.C. § 1536, to “consult” with federal wildlife agencies. Although the Second Circuit blessed a nearly identical consultation process in Cooling Water Intake Structure Coalition v. EPA, 905 F.3d 49 (2d Cir. 2018), the plaintiffs in Florida’s case convinced Judge Randolph Moss of the D.D.C. that the consultation here was “not enough.” Judge Moss accordingly “vacated” EPA’s approval even though Florida has processed thousands of permit applications over the course of more than three years under EPA oversight.
This month Florida took the case to the D.C. Circuit, filing an opening brief that seeks outright reversal both for lack of plaintiffs’ standing and on the merits; alternatively, Florida seeks to “vacate the vacatur,” i.e., to have its approval remain in effect while EPA conducts any required additional consultation. The Solicitor General having approved their appeal, EPA and its sister federal agencies also filed their opening brief. Although DOJ’s brief argues that EPA’s consultation with the Fish and Wildlife Service (regarding terrestrial species) complied with law, it also concedes that EPA improperly failed to consult with the National Marine Fisheries Service (regarding marine species). The latter is curious, in that Florida’s permitting program is expressly limited to non-tidal waters, namely, waters that do not contain the endangered species for which NMFS is responsible. In any event, that “error” involved merely three species, whereas DOJ’s brief contends that the agency got it right as to more than 130 other species.
On September 23rd, a coalition of more than 15 states filed an amicus brief in support of Florida’s position. The D.C. Circuit previously denied both Florida’s application for a stay of the district court’s ruling and Florida’s motion to expedite the appeal. Accordingly, a decision is not expected before the middle of next year.
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