Fate of Florida’s 404 Program Heads to Appeals Court

by Michelle Diffenderfer and Katherine L. Hupp

April 18, 2024

The Federal Judge who vacated Florida’s Clean Water Act (CWA) Section 404 Dredge and Fill Program based on Endangered Species Act (ESA) claims, has denied Florida’s request for a limited stay of the ruling. As a result, all pending 404 applications must be transferred to the United States Army Corps of Engineers (Corps) to continue the permitting process.

The Judge also entered a partial final judgment, rendering all claims except the Plaintiffs’ claim regarding what waters are retained versus assumed under the Rivers and Harbors Act (RHA) immediately appealable.

Florida has appealed the decision to the D.C. Circuit Court of Appeals (D.C. Circuit). Meanwhile Florida has filed its obligatory request with the D.C. District Court for a stay pending appeal. Florida requested the D.C. District Court take action on its Motion by April 23, 2024. This is a different request than the previously denied request for a limited stay and is required in order for Florida to request a stay from the D.C. Circuit. The D.C. District Court Judge has ordered parties to respond to Florida’s Motion by 3:00 pm on April 22^nd. Assuming the Judge denies the request consistent with his prior rulings, Florida would then be able to move forward in asking the D.C. Circuit for a full stay pending its decision on the merits.

 

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