Feds say they can handle permits amid fight

by | May 3, 2024

Federal officials dispute Florida’s claim that recent judicial rulings against state-managed wetland permits create “regulatory limbo,” asserting that the U.S. Army Corps of Engineers is efficiently processing applications to prevent disruption.

Federal environmental officials have pushed back against arguments by Florida that a legal fight over wetlands-related permitting has put more than 1,000 permit applications into “regulatory limbo.”

Florida last week asked an appeals court to issue a stay of a district judge’s ruling that rejected a 2020 decision by the federal government to shift permitting authority to the state. The stay request — backed late Thursday by major business groups and companies — argued that the ruling has created permitting “chaos” and should be put on hold while an appeal plays out.

But the federal government in a filing Tuesday said the U.S. Army Corps of Engineers has stepped in and is administering the permitting program “in a way that serves the public.” The U.S. Army Corps reviewed the permit applications for projects that affect wetlands before the authority was shifted to Florida in 2020 and conducts such reviews in other states.

“The Corps is diligently processing (Florida) permit applications and will continue to do so to mitigate any disruption and delay to applicants,” U.S. Department of Justice attorneys wrote in the filing.

But in a friend-of-the-court brief Thursday, groups such as the Florida Chamber of Commerce, Associated Industries of Florida and the Florida Association of Community Developers and companies such as major home builders said that a rejection of the state’s request for a stay would lead to “screeching delays throughout Florida’s construction industry.”

“To be certain, the Corps is not inept,” lawyers for the business groups and companies wrote. “The fact remains, however, that the state and the Corps have their own distinct (permitting) processes. Assuming that the Corps will be provided the full permit application files from the state and pick up where Florida left oft vastly underestimates the complexity of the transfer ordered by the district court. Every Florida permit applicant must start from the beginning and submit a new Corps-specific permit application, which means the process must begin from scratch. The system simply cannot operate otherwise.”

The U.S. Environmental Protection Agency 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 permitting authority,

Attorneys from the Earthjustice legal organization 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, U.S. District Judge Randolph 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.
The ruling focused, in part, on whether the U.S. 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.”

Moss vacated the federal government’s approval of the transfer of authority. In April, he issued a final judgment that cleared the way for Florida to appeal to the U.S. Circuit Court of Appeals for the District of Columbia. Also, the state asked for a stay of Moss’ ruling while the appeal moves forward.

The federal government said in its filing Tuesday that it had not decided whether to appeal Moss’ ruling. It also did not take a position on Florida’s motion for a stay. Also, as of Friday morning, the environmental groups had not responded to the state’s motion, according to a court docket.

But the federal government’s filing sought to dispel arguments that Moss’ ruling has created permitting chaos. The filing included a declaration by Shawn Zinszer, chief of the Regulatory Division of the U.S. Army Corps of Engineers’ Jacksonville District, that said after Moss ruling, the “Corps immediately began accepting and processing permit applications for projects in waters that had previously been assumed by the state.”

The declaration also said the Corps has identified employees from other districts “that are available to help process this workload. The Corps has a plan to assign projects and train and manage personnel from outside the Jacksonville district for reviewing Florida permits, and that plan will continue to be updated as needed.”

But in its motion for a stay last week, Florida pointed to what it called “irreparable injuries” if Moss’ ruling is not put on hold.

“Vacatur (of the transfer of permitting authority) has also thrown Florida’s regulators and regulated community into permitting chaos, deprived Florida of the benefits of years of effort and investment into a comprehensive state program, put over 1,000 pending permit applications into regulatory limbo, blocked Florida agencies from performing legal duties and deprived the state of significant permitting efficiencies obtained from consolidating federal and state wetlands-permitting requirements,” the motion said.


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