Everglades City
by John Nipper
On February 15th, Judge Randolph Moss, overseeing the U.S. District Court in Washington, D.C., made a significant ruling regarding Florida’s “404 program,” which aims to protect federal wetlands. This decision had a profound impact on Florida’s environmental conservation efforts.
Judge Moss’s ruling invalidated the Environmental Protection Association (EPA’s) “assumption decision” and its approval of Florida’s assumption application. While Florida’s state wetlands regulations and permitting authority remained intact under Environmental Resource Permits (ERPs), this ruling dealt a blow to federal wetland protection endeavors.
Judge Moss argued that the EPA and US Fish and Wildlife Service had made a mistake by applying Section 7 of the Endangered Species Act to the Florida program. This section, which provides protection against incidental harm to endangered species, was incorrectly used to safeguard against incidental impacts within the state program. Moss viewed the creation of a “Programmatic Incidental Take Statement,” crafted collaboratively between the Service and the Florida Fish and Wildlife Conservation Commission, as a significant flaw that couldn’t be easily corrected.
In his 97-page Opinion, Moss acknowledged that a small percentage of permits issued under the program could potentially harm endangered species, but he also recognized that most permits posed no such threat. Despite this, Moss left open the possibility for a limited exception to his ruling for this subset of permits, provided the EPA presented a specific request outlining the parameters for such consideration. The timeline for these discussions and the potential for an appeal from the EPA remained uncertain.
Meanwhile, Moss’s decision had immediate effects on bureaucratic processes, effectively pausing the processing of all federal wetland permits pending with the Florida Department of Environmental Protection (FDEP). To learn about the State 404 Program visit: https://floridadep.gov/water/submerged-lands-environmental-resources-coordination/content/state-404-program. To learn more about the judges decision visit: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2021cv0119-163
