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A judge sides with environmentalists in wetlands permitting shift

Tom Hudson

His ruling that the U.S. Fish and Wildlife Service and the U.S. Environmental Protection Agency violated the Endangered Species Act shifts power away from the state.

In a win for environmental groups, a U.S. district judge Thursday ruled that federal officials did not follow required steps in 2020 before shifting permitting authority to Florida for projects that affect wetlands.

Washington, D.C.-based Judge Randolph Moss, in a 97-page decision, found that actions by the U.S. Fish and Wildlife Service and the U.S. Environmental Protection Agency violated the Endangered Species Act. Moss vacated the approval of the shift to the state.

The shift has been backed by business groups such as the Florida Chamber of Commerce and the Association of Florida Community Developers. Supporters argued it would reduce duplicative state and federal permitting and give Florida more control.

But environmental groups Friday touted Moss’ ruling, which involved permits for dredge and fill activities often associated with such things as large developments.

“(The) ruling sends a clear signal that Congress meant what it said when it passed the Endangered Species Act," Earthjustice attorney Christina I. Reichert, who helped represent the plaintiffs, said in a prepared statement. “No state can be allowed to take over a federal program as important as the Clean Water Act’s wetlands permitting program by making an end run around the Endangered Species Act.”

While vacating the approval of the shift, Moss gave federal and state officials 10 days to seek a stay of the ruling. Nevertheless, he wrote that the stay would not apply to pending or future permit applications that would affect endangered or threatened species.

The EPA approved the transfer of the permitting authority 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 authority, which is usually held by the U.S. Army Corps of Engineers.

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. They challenged the approval on a series of grounds, but Moss’ ruling dealt only with the Endangered Species Act issue. He indicated he would address other issues in a later opinion, if necessary.

While the lawsuit was filed against federal agencies and officials, Florida intervened to help defend the shift of authority.

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 judge wrote that the state and the EPA “can pursue other options. Those options, however, are appropriately explored and crafted by the administrative agencies and the state — and not by the court.”

Jim Saunders is the Executive Editor of The News Service Of Florida.