Huge win for Waterkeepers: Court stops FDEP assumption of water permitting, and countersuit 2024-02-15

In a rare huge win for conservationists, on February 15, 2024, St. Johns Riverkeeper, Miami Waterkeeper, and co-plaintiffs won their case to stop the Florida Department of Environmental Protection (FDEP) from assuming wetlands permitting.

[Florida panther, Waterkeepers Florida]
Florida panther, Waterkeepers Florida

FDEP assumption was always a bad idea. “The toxic algae blooms that now plague Florida are a direct result of the state’s decades-long failure to protect our waterways from wildlife-choking pollution,” Jason Totoiu, a senior attorney at the Center for Biological Diversity, said in a statement. “Now the state wants to make it even easier to dredge and fill wetlands that help filter these pollutants.”

Here’s the original lawsuit.

Jim Saunders, WUSF & News Service of Florida, February 19, 2024, A judge sides with environmentalists in wetlands permitting shift,

In a win for environmental groups, a U.S. district judge Thursday ruled that federal officials did not follow required steps in 2020 before shifting permitting authority to Florida for projects that affect wetlands.

Washington, D.C.-based Judge Randolph Moss, in a 97-page decision, found that actions by the U.S. Fish and Wildlife Service and the U.S. Environmental Protection Agency violated the Endangered Species Act. Moss vacated the approval of the shift to the state.

Here’s the judge’s ruling.

The court knew there would be a reaction.

“(The) ruling sends a clear signal that Congress meant what it said when it passed the Endangered Species Act,” Earthjustice attorney Christina I. Reichert, who helped represent the plaintiffs, said in a prepared statement. “No state can be allowed to take over a federal program as important as the Clean Water Act’s wetlands permitting program by making an end run around the Endangered Species Act.”

While vacating the approval of the shift, Moss gave federal and state officials 10 days to seek a stay of the ruling. Nevertheless, he wrote that the stay would not apply to pending or future permit applications that would affect endangered or threatened species.

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. They challenged the approval on a series of grounds, but Moss’ ruling dealt only with the Endangered Species Act issue. He indicated he would address other issues in a later opinion, if necessary.

While the lawsuit was filed against federal agencies and officials, Florida intervened to help defend the shift of authority.

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.

Here is the expected countersuit.

Jim Saunders, WGCU & News Service of Florida, February 27, 2024, State seeks partial stay of court ruling 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.

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.

Yeah, maybe EPA should have thought of all that before delegating permitting authority to Florida.

More in the story:

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.”

So limbo it is for a while, at least.

This is what hasty FDEP assumption has produced.

Maybe FDEP should do something about stopping red tide and cyanobacteria, not to mention fertlizer nitrates leaching into Suwannee River Basin springs and rivers, before trying to claw back this permitting.

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

You can help with clean, swimmable, fishable, drinkable, water in the 10,000-square-mile Suwannee River Basin in Florida and Georgia by becoming a WWALS member today!