On April 12, 2024, the United States District Court for the District of Columbia issued a ruling revoking the State of Florida’s permitting authority under the Clean Water Act. In Center For Biological Diversity v. Regan, the district court granted partial summary judgment in favor of the environmental group plaintiffs, holding that Florida’s Department of Environmental Protection (“FDEP”) violated the Endangered Species Act (“ESA”) in its permitting process.   Ctr. for Biological Diversity v. Regan, No. CV 21-119 (RDM), 2024 WL 1602457 (D.D.C. Apr. 12, 2024).  The Court’s decision blocks all permits for developments in Florida wetlands without a robust ESA analysis.

In 2021, FDEP was granted authority by the EPA to administer its own permitting programs under the Clean Water Act. This delegation of authority allowed the state to issue permits for development of wetland areas, consolidating state and federal permitting requirements. Various environmental groups immediately raised concerns about the State’s enforcement of these standards, claiming that FDEP’s permitting process was insufficient in addressing federal permitting requirements, including heightened requirements under the Endangered Species Act. In particular, the environmental groups claim that FDEP failed to adequately conduct environmental surveys and research in regard to impacts of wetland development on the Florida panther and crested caracara.

In vacating the EPA’s 2021 decision to give FDEP permitting powers, the Court agreed with the environmental group plaintiffs’ claims that FDEP allowed developers to avoid heightened requirements of the ESA. The ruling essentially curtails state administrative powers in favor of stronger federal administrative oversight.

With Florida no longer able to issue permits under the Clean Water Act, permit applicants may face delays and uncertainties in obtaining approvals for their projects. Applicants will now have to navigate a more complex federal and state permitting process, which will lead to increased costs, increased time and additional administrative burdens for developers.