A U.S. district judge ruled that putting Florida in charge of approving permits for projects that affect wetlands in the state, the Fish and Wildlife Service and the Environmental Protection Agency violated the Endangered Species Act.
Washington, D.C.-based Judge Randolph Moss, in a 97-page decision, found that actions by federal officials did not follow the required steps in 2020 before shifting permitting authority to Florida.
Moss vacated the approval of the shift to the state on Thursday, and for now, Florida cannot approve certain building projects.
Seven environmental groups, represented by Earthjustice, sued the EPA in January 2021 in U.S. District Court for the District of Columbia challenging the transfer of federal wetland permitting authority to Florida because then the state could weaken protections for endangered species and their habitats, potentially making it easier for development in sensitive areas.
The State of Florida argued that the shift in overseeing the ESA is about making the process of getting permits for building and other activities near water more straightforward, and that by including discussions about protecting endangered species at an early stage the process can be more efficient and less repetitive.
This approach is intended to streamline the permitting process while ensuring that endangered species are still protected, addressing previous criticisms, and aligning with legal precedents.
On the other hand, the argument against this shift warns that the new method might not be thorough enough in protecting individual species.
Critics are concerned that a broad, one-size-fits-all approach might overlook the specific needs of different plants and animals. They argue that without detailed, species-specific analysis, some of the nuances that are critical to the survival of certain species could be missed, potentially endangering them despite the intentions of the new process.
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.
“Today’s ruling sends a clear signal that Congress meant what it said when it passed the Endangered Species Act," said Earthjustice attorney Christina I. Reichert. “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
From Trump to DeSantis
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 Army Corps.
The groups warned that the handover from the Trump administration to Florida’s DeSantis administration would “degrade and ruin Florida’s natural landscape, all in violation of federal environmental laws.”
The organizations that filed the suit in January 2021 are the Center for Biological Diversity, Defenders of Wildlife, Sierra Club, the Conservancy of Southwest Florida, the Florida Wildlife Federation, Miami Waterkeeper, and St. Johns Riverkeeper.
The court’s ruling resolves part of the lawsuit that concerns the federal agencies’ failure to comply with the Endangered Species Act. The remainder of the suit, which concerns violations of the Clean Water Act and Administrative Procedure Act, is ongoing.
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 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 take” is used to refer to killing or maiming animal without saying those exact words and instead describing situations in which threatened or endangered species could be killed or harmed as a result of 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.”
“Protecting the nation’s biodiversity has never been more important,” said Tania Galloni, an Earthjustice attorney. “That’s why we’re fighting to make sure state programs comply with all federal protections for endangered species.”
Lee, Collier developments halted
Southwest Florida has a lot at stake in Moss’ ruling.
Six proposed development and mining projects that were going through the state’s wetland permitting program that has now been halted would have put 1,000 acres of wetlands are at risk of being destroyed.
These projects are among several large developments planned in the wetland areas and panther habitat of eastern Collier and Lee counties, near the Florida Panther National Wildlife Refuge.
More than 8,000 acres of the most important habitat for the endangered Florida panther are also at risk. Southwest Florida is the only area where the big cats remain, and their population was last estimated at 120-230 adults and subadults.
Closer to home, the Town of Big Cypress and Kingston development projects, as well as any pending or future projects that may affect endangered and threatened species anywhere in the state of Florida, cannot receive their permit through Florida’s flawed program.
Recent meetings about both developments have been packed with opponents.
The Town of Big Cypress includes three, city-sized villages — Rivergrass, Longwater, and Bellmar.
In total, the development will result in 8,400 residences, up to 11,000 new residents, and nearly 1.6 million square feet of commercial space for hospitals, schools, and movie theaters.
The Bellmar Village portion is to be built within one mile of the Florida Panther National Wildlife Refuge, a 26,400-acre unfenced habitat for the endangered animal established more than 30 years ago.
The roads near Bellmar Village, such as Golden Gate Boulevard and Oil Well Road, are already deadly hotspots for panther-vehicle collisions.
Huge environmental restoration projects to repair the Everglades are also underway surrounding the proposed site, about four miles east of Naples.
The U.S. Fish and Wildlife Service, the agency that implements the Endangered Species Act, signed off on the Big Cypress development while admitting more Florida panthers will die each year because of its existence.
That’s because the Bellmar Village portion is to be built within one mile of the Florida Panther National Wildlife Refuge, a 26,400-acre unfenced habitat for the endangered animal established more than 30 years ago.
The roads near Bellmar Village, such as Golden Gate Boulevard and Oil Well Road, are already deadly hotspots for panther-vehicle collisions.
The Fish and Wildlife Service estimated that together the projects would kill between seven and 26 panthers each year from vehicular collisions. Another three panthers per year would be harmed by the extensive habitat loss.
In December 2023 Earthjustice requested a preliminary injunction on behalf of two of the plaintiffs, the Center for Biological Diversity and Sierra Club, as Florida was poised to issue state permits for sprawl development projects that would have caused irreparable harm to Florida panthers and imperiled crested caracara birds.
The projects are planned for a key wetlands area and critical wildlife corridor where the endangered panthers remain in their last territory on Earth.
Rather than rule on the request for a preliminary injunction, the court ruled in favor of the environmental groups on the underlying claims.
“The court’s ruling is a reprieve for critically endangered species like the Florida panther, but we’ll never prevent the extinction of our most vulnerable wildlife unless we stop bulldozing the wild places where they live,” said Elise Bennett director at the Center for Biological Diversity. “The Endangered Species Act can save these magnificent creatures, but only if our agencies follow the law. We’ll continue to fight sprawling developments that rip apart the precious wetlands and interconnected natural spaces that Florida’s most imperiled wildlife need to survive.”
Environmental reporting for WGCU is funded in part by VoLo Foundation, a non-profit with a mission to accelerate change and global impact by supporting science-based climate solutions, enhancing education, and improving health.
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