State appeals in wetlands permitting fight

by | Apr 16, 2024

Florida has swiftly initiated an appeal after a federal judge overturned a 2020 decision that had granted the state authority over environmental permitting for projects affecting wetlands.

Florida has quickly launched an appeal after a U.S. district judge rejected a 2020 decision by the federal government to shift permitting authority to the state for projects that affect wetlands.

Attorneys for the state filed a notice Monday that is a first step in challenging the decision by U.S. District Judge Randolph Moss at the U.S. Circuit Court of Appeals for the District of Columbia.

The notice also said the state will seek a stay of Moss’ decision while the appeal plays out. As is common, the notice did not detail arguments the state’s attorneys will make in the appeal.

The Washington, D.C.-based Moss on Friday issued a final judgment on almost all issues in the case. That came after a February ruling in which Moss vacated the transfer of permitting authority because he said federal officials had not followed required steps before making the 2020 decision.

The case has been closely watched by business and environmental groups, with the state saying in a court filing that Moss’ February ruling could affect “pending permit applications for roads and bridges, hospital construction projects, school buildings and facilities, affordable housing, military base projects, power grid reliability projects (including construction of new power generation facilities and transmission lines), and various projects necessary to improve water quality in the Everglades, just to name a handful of examples.”

The state sought a partial stay of Moss’ Feb. 15 ruling, but the judge wrote Friday that a stay would be “neither workable nor desirable.” He also wrote that the U.S. Army Corps of Engineers is prepared to review permits, as had been the case before the authority was transferred to the state.

Moss anticipated the appeal, saying the final judgment would help clear the way for the dispute to move forward.

“Although the court’s (Moss’) decision is unlikely to result in the dire consequences that Florida proffers — as noted … the Corps stands ready, willing, and able to issue … permits in Florida, as it did for decades before the EPA approved Florida’s assumption application and as it does in 47 other states — Florida nonetheless has a legitimate and substantial interest in obtaining prompt appellate review of a decision and order that set aside a program to which it has devoted extensive time and effort,” Moss wrote. “Florida may or may not prevail on appeal, but there is no just reason to delay its ability to seek review.”

The U.S. Environmental Protection Agency approved the transfer of the permitting authority to the state 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 the 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, and groups such as the Florida Chamber of Commerce, Associated Industries of Florida and the Association of Florida Community Developers have backed the state’s position.

In the February ruling, Moss found that actions by the EPA and the U.S. Fish and Wildlife Service in approving the shift of authority 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.”

As of Tuesday morning, the federal government had not filed a notice of appeal, according to an online court docket.


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