A federal judge has shot down a Trump administration decision to give Florida authority to grant permits for projects affecting waters regulated under the Clean Water Act.
EPA approved Florida’s request to assume control of the Clean Water Act Section 404 program in December 2020. Only two states, Michigan in 1984 and New Jersey in 1994, had done so previously.
Judge Randolph Moss with the District Court in Washington, D.C., said Florida's proposed program differed from the other two states’ by seeking to provide “broad [Endangered Species Act] liability protection on all future state permittees for incidental take [of listed species] resulting from state-issued dredge and fill permits.”
The Fish and Wildlife Service biological opinion (BiOp) analyzing the impacts of the proposal on listed species fell far short of Endangered Species Act requirements because it did not examine the impacts on individual species, Moss said.
“At the very least, the FWS failed to undertake any species-specific analysis,” Moss said. The state contains more than 100 federally listed species, including the Florida panther.
It’s easy to be “in the know” about what’s happening in Washington, D.C. Sign up for a FREE month of Agri-Pulse news! Simply click here.
The BiOp says FWS “evaluated the effects of the action on guilds of ESA-proposed and -listed species and designated and proposed critical habitat,” Moss wrote, quoting the document. He said the BiOp, the ESA and its implementing regulations do not define the term guild, which the Merriam-Webster dictionary says is “a group of organisms that use the same ecological resource in a similar way.”
Seven environmental groups, represented by Earthjustice, brought the lawsuit. They noted that Moss only ruled on the ESA portion of the lawsuit, and that Clean Water Act and Administrative Procedure Act claims remain.
Moss gave the defendants, who include EPA and the state of Florida, 10 days to seek a limited stay of his order, which vacated EPA’s approval, as well as the biological opinion and the accompanying incidental take statement.
For more news, go to Agri-Pulse.com.
