Environmental Permitting in Limbo

Developers and government agencies request clarity on environmental permitting of Florida construction projects in their recent filings with the US District Court. 

The requests come after U.S. District Court Judge Randolph Moss decided on February 15 that the Environmental Protection Agency and the U.S. Fish and Wildlife Service violated federal law when they allowed Florida Department of Environmental Protection to take over the Clean Water Act’s 404 dredge and fill permit processes in December 2020. 

Following Moss’s decision to revert that permitting process back to the U.S. Army Corp of Engineers, Florida Department of Environmental Protection announced that DEP is seeking to retain Clean Water Act 404 permitting, temporarily or in part.

The crux of the matter will, in part, be whether Florida can do so without continuing to violate or circumvent the Endangered Species Act, according to the environmental advocates in the case. A full appeal of the judge’s decision has not yet been filed, but it’s not out of the question, according to DEP officials’ statements.

“DEP is currently evaluating all legal options in light of the court’s order,” DEP officials wrote in a prepared statement on Tuesday.

“Now all pending 404 permits in Florida are in some form of regulatory limbo, at least until a new regime can be established or further judicial orders alter the situation,” wrote DEP’s general counsel Justin Wolfe in a declaration to the court in support of limited stay on Monday. There are approximately 1,000 such permits in the application phase with DEP, Wolfe stated.

Collier Enterprises, now formally named Tarpon Blue Silver King I, also filed requests with the court on Monday through their attorney George P. Sibley, III, of Hunton Andrews Kurth, along with DEP’s request for a partial stay to retain some permitting authority, temporarily or permanently. Collier Enterprises requested a clear process be put forward by the Court so they could continue to pursue permits for the Bellmar development in Collier County, whether through a state and/or federal process. Bellmar is a 5,105-acre site in eastern Collier County with 2,750 homes planned to be built. It is one of several projects that is part of a larger development plan to include the Town of Big Cypress covering approximately 12,000 acres and more than 8,000 homes in eastern Collier County between Golden Gate Estates and Ave Maria, nearing Immokalee. Together, these developments in eastern Collier County would be more than twice the size of nearby Ave Maria. They are in prime panther habitat and make up a critical part of the Florida Wildlife Corridor that is to create a continuous path for panther and other species to roam the state as needed to preserve their existence, environmental groups warn. The Florida panther’s extinction is likely to occur, or occur faster, without these areas to breed and roam, they have said. There are fewer than 200 of these endangered cats estimated, and most live in this area of southwest Florida, biologists report.

Under Florida’s process, developers were granted immunity for the “take” of these and other endangered species through a state process that the court described as a work around the Clean Water Act and Endangered Species Act. To “take” means to kill or harm. The court has yet to decide on all CWA components of the case.

Federal defendants had also filed a brief in US District Court on Monday in opposition to the judge’s ruling on February 15. That February 15 decision put a halt, though perhaps temporarily, to permitting for the contentious Bellmar and Kingston developments in Collier and Lee counties, respectively, that could jeopardize the endangered Florida panther and harm threatened caracara, among other species, environmental advocates warned. 

Earthjustice is representing the environmental agencies, including the Conservancy of Southwest Florida and the Center for Biological Diversity, in efforts to protect endangered species and the Clean Water Act in Florida amidst requests for rapid large development throughout the state and particularly in sensitive wetlands. 

One of the significant areas of concern for animal and environmental advocates was that the permitting process allowed immunity for the “takes,” which means kills or harm to Florida panthers and other species protected by the Endangered Species Act, said Earthjustice attorney Christina Reichert. 

Moss’s decision won’t change permits of the past but it does remove that immunity for future “takes” by any project, Reichert said.

"The judge's ruling couldn’t have come soon enough,” said Amber Crooks, environmental policy manager for the Conservancy of Southwest Florida, which has been opposing state oversight of the 404 process since the idea’s inception. 

"They were picking up speed on more than six big projects that were keeping us up at night at how large they were and how harmful they could be,” Crooks said.

The six projects include three in Collier County and three in Lee County, including a mine, she added.

DEP’s contention is that there are 1,000 permits now put in limbo without a specific process in place.

“As an initial step to limit this disruption, DEP filed a motion seeking a partial stay so Florida may continue to process the applications that would not affect any listed species,” DEP officials wrote in a prepared statement on Tuesday.

Projects include roadways, driveways, single-family residences and environmental improvements in the Everglades, DEP officials argued in their request to retain oversight to move forward on many of the permit requests. 

Approximately 9,000 permits have been issued by Florida since they took over the 404 permitting program, which took about six months to implement after gaining the authority in December 2020, DEP estimated. 

“That’s a lot of permits,” said Crooks. 

She and other environmental advocates have described Florida’s oversight of permitting as a gift to developers. 

Florida Department of Environmental Protection and EPA were given 10 days to seek a stay of that February 15 decision for permit applications that won’t adversely affect endangered species to continue through the state, giving them through midnight Monday to request the stay, or pause in the court’s most recent finding. The judge’s decision would allow the US Army Corp of Engineers to oversee 404 permitting for projects that could harm endangered species while the State of Florida could oversee 404 permitting for those projects that will definitely not harm endangered species. 

The prospect of dividing the permits in this way seemed daunting, opponents said. It also leaves questions as to how to handle projects that “may affect” species.

DEP estimates that approximately 15 percent of Florida 404 permit applications “may affect” threatened and endangered species.

“A limited stay should be granted to keep most of the Florida program in place while the federal and state agencies decide next steps,” the state’s legal counsel wrote in their motion for limited stay, or pause, of the February 15 decision. 

“Administrative difficulties would result from retuning the permitting authority to the Corps,” DEP counsel wrote. 

Federal Defendants also filed a brief with the court on Monday stating that such a divided program between state and federal agencies would not be “desirable nor workable,” further calling it “practically and legally unworkable” after outlining the difficulties in dividing permitting processes between the state and federal agencies. 

The Solicitor General has not yet decided whether to appeal the Court’s February 15 order, DEP officials stated. 

DEP requested clarity on how Florida’s program could mirror Michigan and New Jersey’s, which are the only other two states granted the power by the court to oversee similar Clean Water Act permits for projects in their states. 

DEP also requested that road projects be exempt from the court’s decision, thus allowing DEP to continue processing those permits.