Florida seeks stay in wetlands permitting case

TALLAHASSEE — Pointing to permits in “regulatory limbo,” the Florida Department of Environmental Protection on Monday asked a judge for a partial stay of a ruling in a legal battle about a 2020 decision that shifted permitting authority from the federal government to the state for projects that affect wetlands.

U.S. District Judge Randolph Moss on Feb. 15 ruled that federal officials did not follow required steps before transferring the authority to the state. Moss issued an order vacating the approval of the shift.

Lawyers for the state said in a 21-page filing Monday that the ruling could affect more than 1,000 permit applications that are “now in regulatory limbo with no clear timeline or expectation for a permit decision. This includes 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.”

The filing sought a limited stay of the ruling to keep the “bulk” of Florida’s program in place until a new plan can be put in place or until further court rulings. As an example, the Department of Environmental Protection suggested the state continue handling permits that would not affect endangered species.

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, 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 against the federal government. The state later intervened.

But while the state filed a motion Monday for a limited stay of Moss’ ruling, U.S. Department of Justice lawyers said in a separate filing that federal officials don’t think such a stay would work.

“As a practical matter, it is unclear how, or even if, Florida and the (Army) Corps could divide permitting responsibilities for projects in state-assumed waters depending on whether those projects ‘may affect’ listed species,” the Justice Department lawyers wrote. “Under such an arrangement, would applicants apply to Florida or the Corps in the first instance? Who would then determine impacts on ESA-listed (Endangered Species Act-listed) species? And what would happen if Florida and the Corps disagreed on that determination? The time needed to answer these, and many other difficult questions could exceed the uncertain duration of a limited stay and would consume considerable agency resources that might otherwise go toward processing permit applications in the meantime.”

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.”

While the federal government Monday opposed a partial stay, it said in a footnote that the U.S. solicitor general has not decided whether to appeal Moss’ ruling.