Feds Urge Sending Back Wetlands Case

TALLAHASSEE, Fla. – In a case closely watched by Florida businesses and environmental groups, the Biden administration Monday argued that a dispute about permitting authority for projects that affect wetlands should go back to a federal district judge.

Attorneys for the U.S. Department of Justice and other agencies contended in a 66-page appeals-court brief that U.S. District Judge Randolph Moss made errors this year when he vacated a 2020 decision by the U.S. Environmental Protection Agency that shifted permitting authority from federal officials to Florida.

But the brief also conceded that the EPA had erred by failing to consult with another agency, the National Marine Fisheries Service, before approving the permitting shift.

As a result, the Biden administration argued that the U.S. Circuit Court of Appeals for the District of Columbia should send the case back to Moss. If that occurs, Florida could continue to be stripped of the permitting authority until the issues are resolved, according to the brief.

The EPA approved the transfer of the permitting authority to Florida in December 2020, about a month before former President Donald Trump’s administration ended. The move made Florida only the third state, after Michigan and New Jersey, to receive the authority, which involves dredge-and-fill permits.

The legal organization Earthjustice filed a lawsuit in 2021 against the federal government on behalf of 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. The state later intervened to defend the transfer.

In a February ruling, Moss found that actions by the EPA and the U.S. Fish and Wildlife Service in approving the shift violated the federal Endangered Species Act, and he vacated the transfer. In April, Moss issued a final judgment that cleared the way for appeals.

With the transfer vacated, the U.S. Army Corps of Engineers is handling the permitting, as it does with most states.

Moss’ February ruling focused, in part, on whether the Fish and Wildlife Service properly prepared a biological opinion and what is known as an “incidental take statement” as part of the process of approving the transfer. Incidental takes are situations in which threatened or endangered species could be killed or harmed as a result of what are allowed activities.

Moss said a biological opinion and incidental take statement did not comply with the Endangered Species Act and another law known as the Administrative Procedure Act. He wrote that because the biological opinion and incidental take statement that the Fish and Wildlife Service “issued in this case were facially and legally flawed, the EPA unreasonably relied on those documents in approving Florida’s assumption application.”

But federal government attorneys in Monday’s brief disputed those conclusions. Also, they pointed to “safeguards” built into the transfer of authority. As an example, the state agreed to a “technical assistance” process that involves sending permit applications to the U.S. Fish and Wildlife Service for review and potential conditions.

“In sum, FWS (the Fish and Wildlife Service) reasonably relied on the technical assistance safeguards built into Florida’s program to determine that EPA’s approval of Florida’s application would not jeopardize listed species or harm critical habitat,” the brief said. “The district court’s contrary holding was in error.”

But the brief also conceded that Moss ruled correctly that the EPA had failed to consult with the National Marine Fisheries Service before approving the shift. It said the EPA determined that the transfer of authority would not affect species under the National Marine Fisheries Service’s jurisdiction – but actually would affect three species, the Atlantic sturgeon, the shortnose sturgeon and the smalltooth sawfish.

Because of that, the federal government attorneys said the case should be sent back to Moss – and the Corps of Engineers should continue handling the permitting until the dispute is resolved.

“In this circumstance, where plaintiffs’ success on their full complement of claims remains uncertain, but the disruptive consequences of … (permitting) jurisdictional ping-pong are clear, the appropriate course is for the district court’s vacatur of EPA’s assumption to remain in place for the limited duration of district court proceedings on remand,” the brief said.

The state’s efforts to defend the transfer have been backed by groups such as the Florida Chamber of Commerce, Associated Industries of Florida and the Association of Florida Community Developers. In a February court filing, the state said Moss’ ruling could affect permit applications for a wide range of projects, including roads, housing and construction of hospitals and schools.

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