Federal Judge Vacates Florida’s Assumption of EPA’s 404 Permitting Program

On February 15, a Washington, D.C. District Judge invalidated Florida’s assumption of the Section 404 Clean Water Act (CWA) permitting program and the U.S. Fish and Wildlife Service (FWS) documentation that the U.S. Environmental Protection Agency’s (EPA) approval of Florida’s assumption is based on. A 404 permit typically involves homeowners, developers, and local, state, and federal governments, and is required for any impacts to Waters of the United States (WOTUS); such permits are sometimes needed when building housing, roads, hotels, airports, or other infrastructure that occur in or impact jurisdictional WOTUS.

The legal precedent for this ruling ties back to the EPA’s 2021 approval of Florida’s assumption of the 404 program, which was soon challenged with the claim that the EPA’s approval process 1) did not include needed consultation with the National Marine Fisheries Service (NMFS) concerning indirect impacts to listed marine species, and 2) relied on legally unsound documentation from the FWS inherently violating legislation including the Endangered Species Act (ESA).

In the February 15 ruling, the Judge agreed with these raised claims and therefore vacated Florida’s assumption and the backing documentation from the FWS that the EPA utilized in its approval of Florida’s assumption of the program. It is currently unclear whether EPA will take steps to resolve the issues the Judge raised during the ruling or work with Florida on alternative solutions to have the program comply with the ESA.

As a result of this ruling, jurisdiction for administering the CWA Section 404 program has now shifted from the Florida Department of Environmental Protection (DEP) to the U.S. Army Corps of Engineers (USACE) for the foreseeable future, which impacts applications currently in process in addition to future 404 permit applications. This new process will result in delays and increased costs for all pending 404 permit applicants, who can either transfer their applications to the USACE or await DEP’s ability to continue processing 404 applications. This structure will remain unless and until a stay is requested and granted; the Judge stated he would allow the State and Federal Agencies ten days to submit requests for a limited stay of the decision, granted such requests do not include any pending or future permit applications that may affect listed species.

Below is an explanatory framework outlining processes for 404 permit applicants if a limited stay is or is not requested and granted:

No limited stay requested and granted (current status):

  • All current and future 404 permit applications in Florida are now under USACE jurisdiction, likely with increased costs and delays for all pending 404 permit applicants, until a resolution is reached concerning the flawed ESA documentation or otherwise.

In the event a limited stay is requested and granted:

  • All current and future 404 permit applications in Florida that may affect listed species are under USACE authority.
  • All current and future 404 permit applications in Florida without potential listed species impacts can progress with DEP in accordance with the State 404 program as usual.

Stay tuned for further legal updates from Headway Environmental as they’re made available.