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Florida Seeks Stay in Wetlands Permitting Fight

In the continuing legal battle over permitting authority for wetlands, Florida said a district court judge’s decision “eviscerates Florida’s sovereign interests.”

TALLAHASSEE, Fla. — Pointing to what it called “irreparable injuries,” Florida has asked a federal appeals court to put on hold a district judge’s ruling as a legal battle continues to play out about permitting authority for projects that affect wetlands.

Attorneys for the state filed a motion late Thursday at the U.S. Circuit Court of Appeals for the District of Columbia seeking a stay of ruling by U.S. District Judge Randolph Moss. Moss’ ruling rejected a 2020 decision by the federal government to shift permitting authority to the state.

Florida last week appealed Moss’ ruling. But Moss on Tuesday denied a request by the state for a stay while the appeal plays out — leading to Thursday’s motion for a stay at the appellate court.

Siding with environmental groups, Moss in February vacated the transfer of permitting authority because he said federal officials had not followed required steps before making the 2020 decision. Moss followed up this month by entering a final judgment that cleared the way for the state’s appeal.

In Thursday’s motion for a stay, the state’s attorneys argued that Moss’ ruling “eviscerates Florida’s sovereign interests in the conservation and management of water resources, land use, and wildlife — areas of traditional state responsibility.”

“Vacatur (of the transfer of permitting authority) has also thrown Florida’s regulators and regulated community into permitting chaos, deprived Florida of the benefits of years of effort and investment into a comprehensive state program, put over 1,000 pending permit applications into regulatory limbo, blocked Florida agencies from performing legal duties and deprived the state of significant permitting efficiencies obtained from consolidating federal and state wetlands-permitting requirements,” the motion said.

But in denying the state’s stay request Tuesday, Moss wrote that Florida “failed to demonstrate that it is likely to suffer an irreparable injury if the court declines to grant a stay.” In part, Moss said the U.S. Army Corps of Engineers is prepared to review permits, as had been the case before the authority was transferred to the state.

“In the state’s view, it would promote efficiency for a single regulator to administer the federal and state permitting programs — but that is a question of efficiency, not sovereignty,” he wrote.

The case has been closely watched by business and environmental groups, with organizations such as the Florida Chamber of Commerce, Associated Industries of Florida and the Association of Florida Community Developers backing the state’s position.

The U.S. Environmental Protection Agency approved the transfer of the permitting authority in December 2020, about a month before former President Donald Trump’s administration ended. The move made Florida only the third state, after Michigan and New Jersey, to receive the permitting authority,

Attorneys from the Earthjustice legal organization filed the lawsuit in 2021 against the federal government on behalf of the Center for Biological Diversity, Defenders of Wildlife, the Sierra Club, the Conservancy of Southwest Florida, the Florida Wildlife Federation, Miami Waterkeeper and St. Johns Riverkeeper. The state later intervened to defend the transfer.

In the February ruling, Moss found that actions by the EPA and the U.S. Fish and Wildlife Service in approving the shift violated the federal Endangered Species Act.

The ruling focused, in part, on whether the U.S. Fish and Wildlife Service properly prepared a biological opinion and what is known as an “incidental take statement” as part of the process of approving the transfer. Incidental takes are situations in which threatened or endangered species could be killed or harmed as a result of what are allowed activities.

Moss said a biological opinion and incidental take statement did not comply with the Endangered Species Act and another law known as the Administrative Procedure Act. He wrote that because the biological opinion and incidental take statement that the Fish and Wildlife Service “issued in this case were facially and legally flawed, the EPA unreasonably relied on those documents in approving Florida’s assumption application.”

In Thursday’s motion for a stay at the appellate court, the state’s attorneys contended that Moss’ ruling conflicted with a 2018 decision by the 2nd U.S. Circuit Court of Appeals. Also, they argued that the ruling “gravely undermines the federalism principles that pervade” the Endangered Species Act and the federal Clean Water Act, another law involved in the case.

But in denying the stay request Tuesday, Moss wrote that “Florida has failed to identify any theory of appeal on which it is likely to prevail or that even raises a serious legal question.”

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