The U.S. District Court for the District of Columbia on Feb. 15, 2024, issued an order vacating the U.S. Environmental Protection Agency's (EPA) approval of the state of Florida's application to assume permitting authority from the U.S. Army Corps of Engineers (Corps) under Section 404 of the Clean Water Act (CWA) within the state.

The plaintiffs alleged that the federal defendants violated the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., and the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., in the transfer of permitting authority to Florida in the final days of the last administration.

Background

The ESA prohibits unpermitted "take" of endangered species. 16 U.S.C. § 1538(a)(1)(B). "Take" is broadly defined to include any action that may "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" a species. 16 U.S.C. § 1532(19). It also includes habitat modification that kills or injures wildlife. 50 C.F.R. § 17.3. Under the ESA's implementing regulations, an "action agency" is required to "review" its actions "at the earliest possible time to determine whether any action may affect listed species or critical habitat." 50 C.F.R. § 402.14(a). If the action agency determines that an "action may affect a listed species or critical habitat," the agency must consult with the U.S. Fish and Wildlife Service (FWS) to ensure that its contemplated action "is not likely to jeopardize the continued existence of any endangered or threatened species." 16 U.S.C. § 1536(a)(2). That process – referred to as "Section 7 consultation" – results in the preparation of a Biological Opinion (BiOp), which is used to determine "how the agency action [at issue] affects the species or its critical habitat" and to determine whether the proposed action is likely to jeopardize the continued existence of any listed species. Id. If the agency action will "take" a species, the resulting "incidental take statement" issued with the BiOp "specifies the impact of such incidental taking on the species" and "sets forth the terms and conditions … that must be complied with by the [action] agency or applicant (if any), or both," in order to "minimize such impact," 16 U.S.C. § 1536(b)(4).

Typically, a 404 permit issued by the Corps would be subject to the Section 7 process. However, when the 404 program was assumed by the state, there was no longer an "action agency" for the FWS to consult. To overcome this, FWS and EPA undertook a Section 7 consultation on EPA's approval of Florida's assumption application. This resulted in the issuance of a "programmatic" BiOp finding no jeopardy, followed by a "programmatic" incidental take statement (ITS) that would protect all future state Section 404 permittees from ESA liability. Specific permits would be subject to "technical assistance" review by FWS. Under this process, FWS is provided the "opportunity" to specify take limits, and the state is required to include those limits, if supplied, in its state-issued permits.

The Case

The plaintiffs challenged the ESA process for the assumption under the theory that it was procedurally deficient and did not provide adequate protection for species. The federal defendants pointed to precedent for this approach and stressed the fact that the process results in a similar level of species protection as individual Section 7 consultations. In effect, they argued that "whatever ESA requirements may have been omitted from the programmatic BiOp and programmatic ITS will be sufficiently addressed at the individual permit level through consultation with the FWS via the 'technical assistance process.'"

The court held that the "programmatic BiOp and ITS fail to satisfy the requirements of the ESA, and the Court is unpersuaded that the non-statutory technical assistance process is a lawful substitute for the procedures and remedies that Congress enacted in the ESA and that the Services established in the implementing regulations." The court was particularly concerned that the programmatic BiOp and ITS that fails to undertake any species-specific analysis also fails to set any numerical take limits or to employ surrogates to set a clear standard for determining when the level of anticipate take has been exceeded. The court suggested that there may be no simple fix to these alleged flaws.

After weighing the consequences of remedy, the court concluded that "the appropriate remedy is to VACATE the EPA's approval of Florida's assumption application." However, the court "will permit Defendants to seek a limited stay of that vacatur within ten days of this decision." Any such request "should exempt all pending and future permit applications that 'may affect' any listed species under the jurisdiction of the FWS or the National Marine Fisheries Service (NMFS) and should propose a mechanism for determining which permit applications 'may affect' listed species." The accompanying order states that "until such a limited stay issues, the State is without any authority to issue a Section 404 permit, and all Section 404 permitting authority in the State of Florida is vested in the Army Corps of Engineers." Thus, if the order stands, the Florida Department of Environmental Protection (FDEP) will not be able to issue any 404 permits that would impact species. It appears that the court intends that the Corps would address the permits where a species is impacted, but the logistics of that process is unclear.

Future Considerations

The order does not affect permits that were already issued. However, it has significant impacts on pending and future permits. The court held that "only a small percentage of state-permits require some form of ESA incidental take protection." But, given that there are 139 listed species in the state and the way that FWS analyzes effects, a larger percentage of permits "may affect" species than the court believes. For example, species such as the panther and bonneted bat have huge designated protection areas. While the court felt that permittees have other "options" such as seeking approval of a Habitat Conservation Plan under Section 10 of the ESA, there is no recognition of the effect of forcing permit applicants to start over with a very different process. The court also seemed unaffected by the chaos that this might cause, noting that it "is unaware of any complaints of disruption that were lodged when the EPA transferred Section 404 permitting authority from the Corps to the State." Clearly, the court was not a permit applicant in 2021.

How the state and federal agencies will respond remains to be seen, but it is clear that this will cause significant disruption for the near future.