Florida Files Motion with D.C. Circuit Court of Appeals to Revive the State 404 Program

by Michelle Diffenderfer and Katherine L. Hupp

On April 23rd, Federal District Court Judge Moss denied Florida’s Motion for a Full Stay of the Judge’s decision to vacate Florida’s assumed Clean Water Act 404 Dredge and Fill Permitting Program. The Judge found that Florida did not carry the heavy burden of showing necessary elements that would support the court delaying the effectiveness of its decision on the merits until an appeals court decides the matter. Judge Moss specifically noted that Florida did not show a likelihood of success on the merits because the Endangered Species Act (ESA) is explicit in its requirements for elements of a Biological Opinion (BiOp) and Incidental Take Statement (ITS), and those elements were completely missing in Florida’s Programmatic BiOp and ITS.

Judge Moss also said that Florida will not face irreparable harm in the form of alleged permitting delays as a result of all pending State 404 permit applications being moved to the United States Army Corps of Engineers (Corps) for processing. The Judge relied on the Corps’ representations that it will move expeditiously to process pending applications, and “that ‘a project will not go to the back of the line just because the applicant had previously applied to Florida;’ and that, ‘as much as possible,’ the Corps intends to ‘pick up where Florida left off, to the extent that the information submitted to Florida satisfies the Corps’ requirements.’” Dkt 190 at 11-12.


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