I remember when the United States Congress passed Clean Water Act, Section 404, as amended, in 1972 and 1977. Landowners, landrapers and their commercial allies were hotter than a two dollar pistol. Even liberal Senators voted with them, fearful of their power and influence. Now that Section 404 is the law of the land, the world is a better place, preserving wetlands. From WGCU/News Service of Florida:
US Circuit Court of Appeals nixes a stay in a wetlands permitting fight
Rejecting arguments by Florida and business groups, an appeals court Monday refused to put on hold a U.S. district judge's ruling in a battle about permitting authority for projects that affect wetlands.
Rejecting arguments by Florida and business groups, an appeals court Monday refused to put on hold a U.S. district judge’s ruling in a battle about permitting authority for projects that affect wetlands.
A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia issued an order that said Florida “has not satisfied the stringent requirements for a stay” while an appeal of U.S. District Judge Randolph Moss’ ruling plays out. The order did not provide further explanation.
The case, which is closely watched by business and environmental groups, stems from a 2020 decision by the federal government to shift permitting authority to the state for projects that affect wetlands. Moss in February ruled that actions by the U.S. Environmental Protection Agency and the U.S. Fish and Wildlife Service in approving the shift violated the federal Endangered Species Act.
Moss vacated the approval of the transfer of authority and in April issued a final judgment that cleared the way for Florida to appeal. Also, the state asked for a stay of Moss’ ruling while the appeal moves forward.
In a motion seeking the stay, Florida pointed to what it called “irreparable injuries” if Moss’ ruling was not put on hold.
“Vacatur (of the transfer of permitting authority) has also thrown Florida’s regulators and regulated community into permitting chaos, deprived Florida of the benefits of years of effort and investment into a comprehensive state program, put over 1,000 pending permit applications into regulatory limbo, blocked Florida agencies from performing legal duties and deprived the state of significant permitting efficiencies obtained from consolidating federal and state wetlands-permitting requirements,” the motion said.
But attorneys for environmental groups that challenged the transfer and the federal government disputed the state’s arguments, in part because they said the U.S. Army Corps of Engineers had stepped in to handle permitting. The Army Corps reviewed permit applications before authority was shifted to Florida in 2020 and conducts such reviews in other states.
Attorneys from the Earthjustice legal organization wrote in a May 6 brief that Florida’s “claims of economic loss are hyperbolic, unsupported, and unfounded.”
“A stay would revert … authority once again to a state program that does not comply with the ESA (Endangered Species Act), putting listed species at risk of irreparable harm,” the brief said.
Earthjustice filed the lawsuit in 2021 against the federal government on behalf of 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.
The state later intervened to defend the transfer, and its arguments have been backed by groups such as the Florida Chamber of Commerce, Associated Industries of Florida and the Association of Florida Community Developers.
Moss’ February 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.”
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