Federal Judge Vacates Florida’s Assumption of EPA’s 404 Permitting Program

Talk of the Town Announcement

WEST PALM BEACH, FL—On February 15, a Washington D.C. District Judge invalidated Florida’s assumption of the Section 404 Clean Water Act (CWA) permitting program.

As a result, the United States Army Corps of Engineers has jurisdiction over all 404 permitting in Florida. A 404 permit is required for any impacts to waters of the United States. 404 permit applicants include but are not limited to homeowners, developers, local, state and federal governments. 404 permits are sometimes needed to build housing, roads, hotels, airports and other necessary infrastructure that occur in and can impact WOTUS.

In the 97-page ruling, D.C. District Judge Randolph Moss agreed with the Plaintiffs, a number of national and local non-government organizations (NGOs) with environmental and species focus, that the United States Environmental Protection Agency (EPA) relied on a United States Fish and Wildlife Service (FWS) Biological Opinion (BiOp) and Incidental Take Statement (ITS) that violated both the Administrative Procedure Act (APA) and the Endangered Species Act (ESA). The Judge also agreed that the EPA failed to consult with the National Marine Fisheries Service (NMFS) as to indirect impacts to listed marine species.

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