On Feb. 16, U.S. District Court Judge Randolph Moss ruled in favor of seven environmental organizations by striking down Florida’s assumed authority of Clean Water Act Section 404 permitting, which could have allowed developers filling in wetlands to bypass key requirements and protections in the Endangered Species Act and National Environmental Policy Act.

The ability to regulate Section 404 permitting was delegated to Florida in late 2020 before a change in federal administration. Shortly after, EarthJustice filed a lawsuit on behalf of the Conservancy of Southwest Florida, the Center for Biological Diversity, the Sierra Club, and other environmental organizations to challenge the transfer of authority.

“The unlawful state-assumed program moved forward in the last days of 2020 due to a scheme that provided Florida with a ‘blank check’ on the amount of imperiled wildlife that could be harmed and killed incidental to developments, mines, roadways, and other destructive projects,” wrote the Conservancy of Southwest Florida.

404 permits under the Clean Water Act are required for any actions that include dredging or filling in waterways or wetlands. Normally, the Army Corps is responsible for granting these permits, but a provision within the Clean Water Act allowed states to take over the permitting process if they can prove they will continue to follow the rigorous environmental requirements inherent in the permits.

“The process for these permits is a thorough one, taking into consideration impacts to the environment as well as endangered and threatened species. This is expensive and time consuming, which is one of the reasons that most states have left it to the Corps,” said SCCF Environmental Policy Director Matt DePaolis.

Florida was the third state, after Michigan and New Jersey, to take control of the process, despite skepticism from the conservation community that state agencies would be able to assess projects with the necessary rigor to protect our waters and at-risk species, DePaolis said.

The Feb. 16 ruling vacated the EPA’s approval for Florida to take control of the federal 404 program. This decision will impact projects that would have put nearly 1,000 acres of wetlands at risk, as well as over over 8,000 acres of the most important habitat for the endangered Florida Panther.  The state has asked for a request for a stay to retain the current authority regarding permits that are not impacted by the Endangered Species Act.

“This decision is a huge win for advocates of wildlife and clean water and reiterates the requirements of the Clean Water Act and the Endangered Species Act,” DePaolis said. “Florida relies on its environment for our economic success, the health of our people and our way of life.  There are legal checks in place to ensure that development is done with forethought to ensure that any repercussions are known and acceptable.”

With Judge Moss’s decision, Florida will need to reevaluate its permitting process or allow the Army Corps to step back in to ensure that it meets the standards required by law. The ruling came just six weeks after the 50^th anniversary of the Endangered Species Act.