Florida Files Request for Limited Stay to Resume 404 Permit Program; Feds Counter That the Clean Water Act Does Not Allow for a Partial Program

by Michelle Diffenderfer and Katherine L. Hupp

February 27, 2024

 

On Monday, the State of Florida and the Florida Department of Environmental Protection (together, “Florida”) filed a motion for a limited stay of Judge Moss’ February 15th Order invalidating Florida’s assumption of the Clean Water Act (CWA) Section 404 permitting program.  The United States Environmental Protection Agency (EPA), the United States Army Corps of Engineers (Corps), and the United States Fish and Wildlife Service (FWS) filed a supplemental brief arguing that a limited stay as envisioned by the Court is “neither desirable nor workable,” because the Clean Water Act does not allow for assumption of a partial 404 program.

Florida has not had authority to process 404 permits in Florida since Judge Randolph Moss’ Order vacating Florida’s assumption of the program on February 15^th. Judge Moss gave Florida and the Federal Defendants 10 days to request a limited stay of the vacatur.  Dkt 163 at 96.  Judge Moss made it clear that he would allow the administrative agencies to work out whether a stay is desirable and workable, but that any stay would not apply to permits that “may affect” endangered species—the Judge left it up to the agencies to offer a definition of “may affect.”  Dkt 163 at 96.  Judge Moss previously found that the programmatic Biological Opinion (BiOp) and Incidental Take Statement (ITS) completed by the FWS as part of Florida’s assumption were egregiously noncompliant with the Endangered Species Act (ESA).  As such, he held that any State 404 permits that may affect listed species must be handled by the Corps.

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