by Michelle Diffenderfer and Katherine L. Hupp

In the ongoing litigation over Florida’s Clean Water Act (CWA) 404 permitting program, the federal agencies involved in the approval of Florida’s 404 program disagree with the State of Florida on whether the Environmental Protection Agency’s (EPA) approval of Florida’s 404 permitting program fully complied with the Endangered Species Act (ESA).  This disagreement has complicated the appeal process, potentially prolonging the vacatur of Florida’s program. Significantly, federal agencies still support the approach used by EPA in consultation with the United States Fish and Wildlife Service (USFWS) to ensure protection of terrestrial listed species and to avoid liability for harming those species. However, unlike Florida, EPA believes it should have also considered the impact of Florida’s program on marine species.

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