DOJ Seeks Rehearing in Florida Section 404 Permitting Case
The U.S. Department of Justice has petitioned the full D.C. Circuit Court of Appeals to rehear a case challenging the EPA’s 2020 approval of Florida’s authority to issue Clean Water Act Section 404 dredge-and-fill permits. The Aug. 7, 2026 filing asks the full court to revisit a divided three-judge panel’s March 27, 2026 decision in Center for Biological Diversity v. Zeldin.
Background
In 2020, the EPA approved Florida’s application to assume Section 404 permitting authority, making it just the third state in the program’s fifty-year history to take on this role. Because a state’s future permitting decisions cannot all be known in advance, EPA and the Fish and Wildlife Service (FWS) built their Endangered Species Act review around a “technical assistance” process, where Florida submits each proposed permit to FWS for a site and species-specific evaluation before conditions are set. Relying on this process, FWS issued a biological opinion finding no jeopardy to listed species, along with an incidental take statement shielding Florida, the EPA, and state permittees from Endangered Species Act liability as long as everyone follows the required conditions.
The three-judge panel split on the biological opinion, with the majority rejecting the technical assistance process while a partial dissent argued the approach was properly grounded in the Second Circuit’s 2018 ruling in Cooling Water Intake Structure Coalition v. EPA. The panel was unanimous, however, in finding the incidental take statement unlawful, despite Cooling Water having upheld a nearly identical one.
Why DOJ Is Seeking Rehearing
The government’s petition argues the panel’s decision creates a split between circuits and lacks a coherent majority rationale, pointing to a D.C. district court that already relied on the panel’s opinion in May 2026 to vacate technical-assistance-based approvals covering 24 state-managed coal mining programs, a separate case DOJ has also appealed. The petition also argues that without a technical assistance process, it becomes unclear how any state could meet the regulatory requirements needed to take on Section 404 authority going forward.
Source: Federal Government Seeks Review in Florida Section 404 Case, Florida Specifier
