The Revocation of Florida’s Clean Water Act 404 Permitting Program: What It Means Moving Forward in Light of SCOTUS’ Recent Administrative Law Cases

By Ryan J. Regula and Cole Craghan 

Over three years ago, the Trump administration’s Environmental Protection Agency (EPA) gave Clean Water Act 404 permitting powers to the State of Florida. A few days ago, a judge at the U.S. District Court for the District of Columbia partially rolled back that delegation in a ruling aimed at protecting the Florida panthers (the animal, not the hockey team).¹ In particular, the Court’s decision rolled back the state’s assumption of a federal program by focusing on compliance with the provisions of the Endangered Species Act. 

While the ruling follows a recent trend of curtailing agency deference,² it appears to be an outlier compared to where the U.S. Supreme Court could be heading with the Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce administrative law decisions. Thus, from both a Clean Water Act permitting and Administrative Procedures Act standpoint, businesses and individuals regulated by federal and state agencies may want to work with legal counsel to determine the scope of their rights and the options they have to ensure their interests are not lost in the ever circular cycle of the administrative state.

Florida’s Assumption of the 404 Program

The District Court’s decision stems from Florida’s 2018 legislation giving the Florida Department of Environmental Protection (FL DEP) authority to consolidate Federal and State regulations relating to building permits for environmentally sensitive areas, including the Florida Wetlands.³ This program proposed to give Florida authority previously held by the U.S. Army Corps of Engineers (Corps) through the EPA, in that the FL DEP would assume the “dredge and fill” permitting program as designated by Section 404 of the federal Clean Water Act. Prior to the move, applicants would have to seek both state and federal permits for any project that involved dredge or fill activities. 

Florida completed the rule-making progress for the 404 Program in July 2020, and the Trump-backed EPA approved the delegation of federal permitting power from the Corps to the FL DEP in December 2020. While Florida cited efficiency and economic growth in supporting the move, environmental groups were quick to criticize the decision, arguing that the federal government had abandoned its duty to protect Florida’s wetlands.⁴  

Center for Biological Diversity, et. al., v. Michael S. Regan, et al.

In response, a coalition of environmental organizations initiated a lawsuit (Center for Biological Diversity, et. al., v. Michael S. Regan, et al., 1:21-cv-00119-RDM) in the U.S. District Court for the District of Columbia against various state and federal agencies responsible for ensuring proper application of environmental permits. The Plaintiffs argue that the federal agencies violated the Administrative Procedure Act, the Clean Water Act, the Rivers and Harbor Act, and the Endangered Species Act by permitting a state agency to take over permitting authority for federal regulations. The U.S. District Court’s recent decision does not fully resolve all the issues but blocks any permits for developments in wetland areas without a robust Endangered Species Act analysis; the lawsuit was based on an imminent threat to endangered species including the Florida panther and crested caracara. 

The Court, rather than directly ruling on the preliminary injunction, ruled in favor of the Plaintiffs' underlying claims related to the Endangered Species Act. Essentially, by simplifying the permitting process under Section 404, Florida created an end-run around heightened requirements in the Endangered Species Act. Therefore, the court vacated the EPA’s 2021 decision to give Florida permitting powers. The order seeks to close the gaps in enforcement of federal regulations related to endangered species, as Florida’s implementation of the program allegedly was insufficient in addressing federal permitting requirements, including environmental surveys and research.  

In addressing this underenforcement, the ruling also found that the U.S. Fish and Wildlife Service’s (FWS) transfer and implementation of “take statements” (i.e., land-use permits when endangered species are involved) were unlawful. The Court held that these statements could not adequately quantify the environmental harms and did not set clear requirements for consultation between the FWS and FL DEP.

Permitting Approvals and What’s Next

After being in force for over three years, the Court’s decision to end Florida’s permitting program will again shift the way developers seek approval before building in sensitive areas. This change ends a program that approved more than 1,500 permits within the first two years of action and denied 145 in that period.⁵ While it would appear this ruling follows a recent trend of curtailing agency deference, this case is anything but, and harkens back to the federal administrative state becoming even stronger — this time at the cost of state rights and the state permitting process.

The full impact of the case remains to be seen, as there are still outstanding claims based on other federal acts, but for now, the Court’s ruling (and implementation) should be closely watched especially with the Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce decisions having just been argued in January before the U.S. Supreme Court. During those oral arguments, Justice Neil Gorsuch stated that agency deference (no matter how it arises) “is exploited against the individual and in favor of the government.” Returning the Clean Water Act 404 program (and its administrative permitting backlog) to the federal government from the FL DEP appears to be one more example of that. 

While no Western States have assumed administration of the Section 404 program, businesses and individuals need to be aware of their administrative and environmental legal rights moving forward, as well as the case law arising out of the U.S. District Court for the District of Columbia — most notably because the Court’s use of the Endangered Species Act has direct results on both 404 permitting interests and, more broadly, how the Administrative Procedures Act will be enforced in the future. The impending U.S. Supreme Court decisions raise these stakes further and Snell & Wilmer will be monitoring any developments closely.

Footnotes

1. Center for Biological diversity, et. al., v. Michael S. Regan, et al., 1:21-cv-00119-RDM, Doc. 163 (D.D.C. Feb. 15, 2024). [Back]

2. For analysis of recent rollbacks to Chevon deference, see https://www.swlaw.com/publication/legal-alerts/gone-fishing-will-fisheries-spell-end-of-the-chevron-doctrine. [Back]

3. Background on the State’s program can be found at: Florida Department of Environmental Protection, State 404 Program, available at https://floridadep.gov/water/submerged-lands-environmental-resources-coordination/content/state-404-program (last accessed Feb. 22, 2024). [Back]

4. Earthjustice, The Trump Administration Tried to Sacrifice Florida’s Wetlands to Developers, But We’re Fighting Back, EARTHJUSTICE.ORG, (Jan. 14, 2021) https://earthjustice.org/brief/2021/florida-wetlands-permits-lawsuit-trump-administration. [Back]

5. Chad Gillis, Court Rules that Florida Should not be Allowed to Issue Wetland Dredge and Fill Permits, NEWS-PRESS, (Feb. 16, 2024) https://www.news-press.com/story/news/environment/2024/02/16/ruling-to-protect-wetlands-endangered-species-means-some-developments-will-be-stalled/72627581007/. [Back]