Federal Court Rules EPA Violated Law by Approving Florida Wetlands Permit Program

District Judge Randolph Moss ruled that Florida no longer has the authority to issue the permits. File photo/Joe Raedle/Getty Images

A Washington federal court judge ruled on Feb. 16 that the Environmental Protection Agency (EPA) and the U.S. Fish and Wildlife Service (USFWS) violated federal law when they granted Florida authority to regulate development in protected wetlands in the state.

In his ruling (pdf), U.S. District Judge Randolph Moss found that the two agencies violated the Endangered Species Act by allowing the state to handle permitting for developers and others seeking to fill sensitive marshes, cypress forests, ponds, and more. They also violated the Act by allowing the state to assume authority in enforcing wetlands protections under the Clean Water Act.

Under Section 404 of the Clean Water Act, states are allowed to assume authority over wetlands permitting, provided that they can demonstrate that they will not violate wildlife protection regulations.

“After considering these requests and weighing the seriousness of the defects as well as the potential disruptive consequences of vacatur, the court concludes that the appropriate remedy is to vacate the EPA’s approval of Florida’s assumption application,” the President Obama-appointed judge wrote.

The ruling marks a major win for the various environmental groups that challenged the EPA’s 2020 decision to transfer federal wetland permitting authority to Florida, a move that occurred despite fierce opposition from environmentalists.

At the time, Florida was among three states including Michigan and New Jersey to be granted such authority.

The groups—including 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 (represented by the non-profit Earthjustice)—filed a lawsuit in January 2021 in the U.S. District Court for the District of Columbia.

Impact on Endangered Species

In their lawsuit, the groups argued that the handover from then-President Donald Trump’s administration to Gov. Ron DeSantis’s administration in Florida would “degrade and ruin Florida’s natural landscape, all in violation of federal environmental laws.”

They further argued that the federal agencies violated the Administrative Procedure Act, the Clean Water Act, the Endangered Species Act, and the Rivers and Harbors Act in their rush to transfer permitting authority to Florida just days before President Trump left office.

Additionally, the groups contended the transfer would impact endangered and threatened species and various wildlife in the state.

Judge Moss, in siding with the plaintiffs, also ruled that the EPA, USFWS, and other federal and state agencies, in shifting responsibility for oversight of the program to Florida, failed to account for the potential “incidental” harm or risks to various endangered species, such as the Florida panther and the threatened crested caracara, a rare bird of prey similar to a falcon.

As a result, Judge Moss ruled that Florida no longer has the authority to issue the permits. While this will not affect permits already issued, it could complicate the process for obtaining future permits.

An alligator swims in the waters at Wakodahatchee Wetlands in Delray Beach, Florida, on 21 April 2016. Rhona Wise/AFP/Getty Images

Florida’s Department of Environmental Protection Responds

The ruling restores wetland development permitting powers to the U.S. Army Corps of Engineers, which had managed those decisions until 2020. However, the judge did give Florida 10 days to seek a stay to delay his order.

In a statement following the ruling, Earthjustice attorney Christina I. Reichert said the judge’s order “sends a clear signal that Congress meant what it said when it passed the Endangered Species Act.”

“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 attorney added.

Meanwhile, a spokesperson for the EPA told Courthouse News that the agency is reviewing the decision.

In a separate statement to the Tampa Bay Times, a spokesperson for Florida’s Department of Environmental Protection said the agency is disappointed by the ruling.

“Despite the state and federal partnership that went into developing the program, Florida’s successful implementation of the program for more than 36 months and multiple federal agencies’ unified defense of the program, it has been brought to an abrupt halt by the stroke of an activist federal judge’s pen in Washington D.C.,” Alexandra Kuchta, a spokesperson for the agency, told the publication.