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Federal judge ends Florida’s oversight on wetland development

The court ruling determined the state has no authority to issue wetland permits.
 
A wood stork is shown searching for food in a wetland area off Lutz Lake Fern Road in Odessa last year. A federal court has ruled that the Environmental Protection Agency and the U.S. Fish and Wildlife Service violated federal law when the agencies allowed Florida to take control of wetland permitting in the state.
A wood stork is shown searching for food in a wetland area off Lutz Lake Fern Road in Odessa last year. A federal court has ruled that the Environmental Protection Agency and the U.S. Fish and Wildlife Service violated federal law when the agencies allowed Florida to take control of wetland permitting in the state. [ DOUGLAS R. CLIFFORD | Times ]
Published Feb. 16|Updated Feb. 19

A federal court has ruled that the Environmental Protection Agency and the U.S. Fish and Wildlife Service violated federal law when the agencies allowed Florida to take control of wetland permitting in the state.

The ruling issued by United States District Judge Randolph D. Moss on Thursday determined that the state no longer has the authority to issue the permits. The court’s decision ends the deal between Florida and federal agencies that began in 2020, when the U.S. Environmental Protection Agency signed over authority to issue wetland permits to the state’s Department of Environmental Protection.

Florida became one of three states — alongside Michigan and New Jersey — to be granted that responsibility.

In an email to the Tampa Bay Times Sunday evening, a spokesperson for Florida’s Department of Environmental Protection said the agency is disappointed by the ruling.

“Despite the state and federal partnership that went into developing the program, Florida’s successful implementation of the program for more than 36 months and multiple federal agencies’ unified defense of the program, it has been brought to an abrupt halt by the stroke of an activist federal judge’s pen in Washington D.C.,” Alexandra Kuchta, a spokesperson for the agency, said in the email.

The agency argued their approach to protecting endangered species, which was struck down by Moss, is modeled after one that was approved by a federal circuit court in 2018.

Kuchta said the ruling will disrupt permits involved in ongoing Everglades restoration and critical infrastructure projects.

In July, a spokesperson for the state agency told the Times that the department’s takeover of wetlands permitting would “ensure maximum protection of all of Florida’s water resources.”

But the decision was widely opposed by environmentalists and state residents in 2020. Just a few months later, conservation groups banned together to file a lawsuit against the federal agencies.

While water quality advocates said the state has since become a rubberstamp for approving permits to build on environmentally sensitive sites, some local water regulators sung the agency’s praises.

Great egrets mix with white ibis and wood storks while hunting in a cypress swamp in Land O’ Lakes in Pasco County in this 2022 photo.
Great egrets mix with white ibis and wood storks while hunting in a cypress swamp in Land O’ Lakes in Pasco County in this 2022 photo. [ DOUGLAS R. CLIFFORD | Times ]

In July, Michael Lynch, Hillsborough County’s wetlands director, told the Times that he approved of how the state was handling permitting applications.

“The state has done a really good job with taking a new program and implementing it,” Lynch said. “It’s a very young program, and I think what they have done has been nothing short of phenomenal.”

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The court ruling on Thursday deals with federal agencies’ failure to comply with requirements laid out by Congress in the Endangered Species Act, which protects fish, wildlife and plants that are considered threatened or endangered.

Karimah Schoenhut advised the Sierra Club on the case as a senior staff attorney.

”One of the problems with this whole program is it set up a system where harm to (threatened and endangered species) was being authorized without a way to make sure those decisions were good decisions,” Schoenhut said in an interview.

For now, the permitting program is halted, according to Schoenhut.

Plaintiffs argued the program Florida created was illegal because it was structured to work around statutes Congress put in place to protect endangered species and waterways, said Tania Galloni, the managing attorney for the Florida office of EarthJustice, a law group representing seven environmental organizations.

“The way they (Florida) did it was to basically craft work-rounds to various federal statutes to make the whole system more palatable to Florida,” Galloni said.

The state’s process differed from federal law, making it easier for developers to receive liability protection if an endangered species was accidentally hurt or killed during construction, Galloni said.

Developers wanted to make sure they had that protection so that if they harmed an endangered species, they couldn’t get sued or held accountable for it, Galloni said.

In December, environmental nonprofits asked the court to pause two proposed state permits that would fill in wetlands for developments in Lee and Collier counties.

The groups were worried the permits would green-light ecological destruction in crucial endangered Florida panther habitat, and they wanted to halt the permits until the court could rule whether the permitting program was legal, according to Elise Bennett, Florida and Caribbean director at the Center for Biological Diversity.

“We thought the permits would be harmful,” Bennett said in an interview. “Both proposals were within the core breeding range of Florida panthers.”

This week’s ruling should be a signal to other states that they need to comply with federal environmental laws, Bennett said.

“The decision gives us a lot of hope for Florida’s wetlands and wildlife, and that they will get the consideration that they are due,” Bennett said.

Saltwater pools in a tidal wetland area at the Weedon Island Preserve in St. Petersburg are shown in this 2023 photo.
Saltwater pools in a tidal wetland area at the Weedon Island Preserve in St. Petersburg are shown in this 2023 photo. [ DOUGLAS R. CLIFFORD | Times ]

Amber Crooks, the Conservancy of Southwest Florida’s environmental policy manager, said the judge’s decision came at a crucial time.

Crooks’ organization had been tracking six projects across Southwest Florida that are awaiting permits from the state.

”If they were to be permitted, they would have impacted about 1,000 acres of wetlands and over 8,000 acres of Florida panther habitat — the most critical of the Florida panther’s remaining habitat,” Crooks said.

But the ruling came too late for some projects, she added. A permit was recently approved by the state in a section of Babcock Ranch in southwest Florida, where a threatened bird species, the crested caracara, resided. Crooks’ organization sent in a public comment opposing the permit, but the project was authorized. She said she doesn’t know what’s become of the birds.

Crooks said other states have been looking to Florida as an example while they try to assume oversight of wetlands permitting from the federal government.

”Hopefully this will be a signal to any other states that were thinking of copying this unlawful scheme that that is not going to fly,” she said.

A few wrinkles in the lawsuit remain: The ruling does not undo permits previously given out by the state. And the decision left room for federal agencies to request a delay of the judge’s ruling, but only to aspects that do not involve the Endangered Species Act.

“His decision is it — as to endangered species,” Galloni said. “If they want to come back and say that Florida should be allowed to continue processing other permits, like minor permits ... he’s given them the opportunity.”

The ruling Thursday addresses just part of the lawsuit. The rest, which Earthjustice argues centers around violations of the Clean Water Act and the Administrative Procedure Act, is still underway.

“We live in a state where we’re fortunate to have as much biodiversity as we have, and we intend to keep it that way,” Galloni said.

Editor’s note: This report has been updated with a response from the Florida Department of Environmental Protection that was provided Sunday.