State seeks to speed up wetlands case

by | Mar 13, 2024

Florida is requesting an expedited final judgment in a lawsuit over wetlands permitting authority, aiming for an appeal after a federal judge ruled the state’s acquisition of this authority from the U.S. Army Corps of Engineers was improperly conducted.

Florida is asking a federal judge to speed up a final ruling in a high-stakes case about permitting authority for projects that affect wetlands, as the state sets the stage for a likely appeal.

U.S. District Judge Randolph Moss on Feb. 15 ruled that federal officials did not follow required steps in 2020 before transferring wetlands-related permitting authority from the U.S. Army Corps of Engineers to the state. Moss vacated the shift but said the state and the federal government could seek a stay of his ruling. He also did not decide certain legal issues in the case.

In a filing Monday, attorneys for the state urged Moss to issue a final judgment, which would help clear the way for an appeal. The filing said Moss’ Feb. 15 decision has effectively resolved the case’s key issues in favor of environmental groups that challenged the shift.

“This single judicial ruling, which gave complete relief to plaintiffs, immediately placed over 1,000 projects across Florida (including permit applications for environmental restoration, roads and bridges, hospitals, schools, affordable housing, senior living facilities, and grid reliability, among many others) in regulatory limbo with no clear timeline or expectation for a permit decision,” the state’s 21-page filing said. “The situation was immediately urgent and becomes more so with each passing day.”

The state on Feb. 26 also filed a motion for a stay of Moss’ decision. The judge has not ruled on the motion and has scheduled an April 4 conference in Washington, D.C. The plaintiffs have opposed a stay.

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. Florida became the third state, after Michigan and New Jersey, to receive the permitting authority.

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 filed the lawsuit in January 2021 against the federal government. The state later intervened in the case.

In his Feb. 15 ruling, Moss found that actions by the EPA and the U.S. Fish and Wildlife Service in approving the shift violated the 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.”

The plaintiffs and the U.S. Department of Justice have not filed responses to the state’s request Monday to speed up a final judgment in the case. But the environmental groups last week pushed back against a stay of Moss’ ruling, saying a stay would “create confusion and perpetuate violations” of the Endangered Species Act.

“The least disruptive path forward, which would also serve developers’ interest in clarity … is therefore to deny a limited stay, leave permitting authority with the (Army) Corps, and allow Florida to propose a new program subject to EPA approval,” attorneys for the groups wrote.

The state’s filing Monday appears to make clear that an appeal is looming. As an example, it said that “because the court (Moss) has granted complete relief to plaintiffs, rendering the remaining claims (in the case) moot, this court should proceed with entering final judgment in a separate appealable order.”

Meanwhile, Moss’ ruling also could affect a separate lawsuit filed in 2022 by the Miccosukee Tribe challenging the permitting-authority shift. The Justice Department on Feb. 29 filed a motion for a stay of that case, which is pending before a different federal judge in South Florida.

The motion pointed to Moss ruling.

“If that decision remains intact, it would render this case moot because plaintiff (the Miccosukee Tribe) is seeking the same relief,” the motion said.


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