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Judge finalizes decision about projects that affect Florida wetlands

Business-friendly groups have backed the state's position
Business-friendly groups have backed the state's position

In a case closely watched by business and environmental groups, a U.S. district judge Friday finalized his rejection of a 2020 move by the federal government to shift permitting authority to Florida for projects that affect wetlands.

Judge Randolph Moss issued a 27-page opinion that, as he acknowledged, likely will set the stage for the case to go to an appeals court. The opinion came after a Feb. 15 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 Florida Department of Environmental Protection has argued that the Feb. 15 ruling could put more than 1,000 permit applications in “regulatory limbo.” But Moss wrote Friday that the U.S. Army Corps of Engineers is prepared to review permits as the legal dispute continues.

The 2020 decision by the U.S. Environmental Protection Agency made Florida only the third state, after Michigan and New Jersey, to receive the permitting authority, which is usually held by the Army Corps.

The state sought a partial stay of the Feb. 15 ruling, but Moss wrote Friday that a stay would be “neither workable nor desirable.” He also issued a final judgment on almost all issues in the case, a move that will help clear the way for an appeal.

“Although the court’s 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 EPA approved the transfer of the permitting authority to the state in December 2020, about a month before former President Donald Trump’s administration ended.

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 a February court filing, the state said Moss’ 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.”

But the plaintiffs in the lawsuit pushed back last month against the state’s request for a stay of the Feb. 15 ruling.

“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,” the groups said in a court filing.

In the February ruling, the Washington, D.C.-based 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.”

Copyright 2024 WFSU. To see more, visit WFSU.

The News Service of Florida
Margie Menzel