State seeks fast track for wetlands case

by | May 29, 2024

Florida has requested expedited consideration from a federal appeals court to address a legal dispute over the state’s authority to permit projects affecting wetlands, following a ruling that nullified a 2020 decision transferring such authority from federal to state control.

Florida has asked a federal appeals court for “expedited” consideration of a legal battle about permitting authority for projects that affect wetlands.

Attorneys for the state filed a motion Thursday asking the U.S. Circuit Court of Appeals for the District of Columbia to move quickly in Florida’s appeal of a ruling that vacated a 2020 decision by the U.S. Environmental Protection Agency to shift permitting authority from federal officials to the state.

The appeals court last week rejected a request by the state for a stay of the ruling by U.S. District Judge Randolph Moss. In the motion Thursday seeking expedited consideration, the state made a series of arguments, including that Florida “has suffered — and will continue to suffer — an irreparable injury from having its … program stripped away during lengthy appellate proceedings.”

It said Florida had successfully administered the program for more than three years. “Removing that program from Florida’s control constitutes a classically irreparable harm by impinging on Florida’s sovereign interests in the conservation and management of water resources, land use, and wildlife — areas of traditional state responsibility,” the motion said.

Attorneys from the Earthjustice legal group 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 to defend the transfer. Moss’ 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.

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.”

The plaintiffs and the federal government oppose the state’s motion for expedited consideration of the appeal, according to the state filing.


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