Navigating the Waters: The Ongoing Saga of Florida’s State 404 Permitting Program
In the ever-evolving landscape of environmental regulation, Florida’s State 404 Permitting Program has recently undergone significant judicial scrutiny. As the CEO of the Mitigation Banking Group, I’m here to provide a detailed update on the recent court rulings and subsequent actions that have substantial implications for wetland permitting in our state.
On April 23rd, a pivotal decision was made by Federal District Court Judge Moss regarding Florida’s Clean Water Act 404 Dredge and Fill Permitting Program, which had been assumed by the state. The judge denied Florida’s motion for a full stay of the decision that vacated the state’s program, indicating that Florida did not demonstrate a likelihood of success on the merits of the case, especially concerning the requirements of the Endangered Species Act (ESA).
Judge Moss pointed out significant shortcomings in Florida’s Programmatic Biological Opinion and Incidental Take Statement, highlighting their lack of crucial elements mandated by the ESA. He also reassured that the transition of permit processing to the United States Army Corps of Engineers (Corps) would be handled efficiently, ensuring minimal disruption.
In response to these challenges, the state took immediate action by filing a motion with the United States Court of Appeals for the District of Columbia, seeking to overturn the district court’s decision and to allow the resumption of the 404 Program under state management. The appeal argues against the district court’s findings and cites precedents that support Florida’s position.
Most recently, the saga continued as the D.C. District Court allowed the state to appeal the decision that removed the Florida Department of Environmental Protection’s (DEP) authority to issue State 404 Program permits. Following this, Florida requested a full stay from the appellate court to continue processing over 1,000 pending permit applications during the appeal process.
The DEP has expressed its commitment to defending the EPA’s approval of Florida’s 404 Permitting Program and correcting what it considers to be legal misinterpretations by the lower court. This step is crucial not only for large-scale development projects but also for numerous applications that have direct benefits for the environment and the public.
The current situation with Florida’s State 404 Program is a testament to the complex interplay between environmental protection and regulatory control. As we navigate these turbulent waters, the Mitigation Banking Group is dedicated to providing our clients and partners with the most current and relevant information to assist in navigating these regulatory changes.
We will continue to monitor this situation closely and update you on any new developments. Your projects and conservation efforts remain our top priority, and we are here to support you through these changes.
Stay informed, and remember, we are in this together.
Best regards, Victoria Bruce, CEO Mitigation Banking Group
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