State Appeals Federal Endangered Species Act Violation

Florida’s legal battle continues as the State seeks to maintain the wetland permitting process that a federal court ruled in February violated the Endangered Species Act. 

U.S. District Court Judge Randolph Moss ruled on February 15 that Florida’s oversight of the 404 section of the Clean Water Act circumvented the Endangered Species Act. The decision put a halt on two controversial developments in prime panther habitat, including Bellmar Village in Collier County and Kingston in Lee County. These two projects alone would have killed an estimated 24 panthers each year with a state population of 200 or fewer of the endangered species, according to biologists’ estimates in their permit applications. 

Florida appealed Moss’s decision and, on April 25, filed a motion to be able to continue issuing the 404 wetland permitting for dredge and fill projects while the appeal is under review. 

“The Florida Department of Environmental Protection looks forward to making its case on appeal to defend the U.S. Environmental Protection Agency's approval of Florida’s 404 Permitting Program,” wrote Alexandra Kuchta, communications director for the Florida Department of Environmental Protection in a press release on April 26. 

Florida officials and developers’ rights advocates maintain that DEP’s permitting process is required to continue as it has been since the state overtook the process from the U.S. Army Corps of Engineers in 2020.

However, environmental and wildlife advocates say the process needs to go back to the U.S. Army Corps of Engineers and be implemented as it was prior to 2020.

“Our case is grounded in decades of how the ESA has worked,” said Christina Reichert, an attorney with the Earthjustice law firm that represents the Conservancy of Southwest Florida and other environmental groups in the case. 

“What Florida DEP and Florida Fish and Wildlife Conservation Commission did in this situation is a big change from how the ESA has worked over the decades,” said Reichert. 

The Bellmar project spans 5,000 acres off Golden Gate Gate Boulevard East in eastern Collier County, owned and proposed by Collier Enterprises, which is part of the Tarpon Blue group of companies. Bellmar Village is part of a long-proposed Town of Big Cypress spanning much of eastern Collier County. Kingston is a Cameratta Companies’ development on 6,676 acres of land on Corkscrew Road with approximately 10,000 homes. 

The developments would severely disrupt or disable the Florida Wildlife Corridor, which is a statewide view of land and waterways meant to maintain areas where panthers, black bears and other species can roam enough to maintain biodiversity and their livelihoods, warned Michael McGrath, lead organizer of the Sierra Club Florida. 

Developers’ advocates and the state argued that the court’s February decision put as many as 1,000 permits in limbo, including for roads, Everglades restoration and other projects, in addition to the large controversial developments. 

Land use attorney John Fumero said the decision is not good for landowners and developers who he represents. “They think they can prevent development by denying permits. It doesn’t work,” Fumero said. 

Meanwhile, he said, the decision is costing his clients and others millions of dollars as they await what could become a long appeal.

The February 15 decision had put the permitting approval process back in the hands of the U.S. Army Corps of Engineers, which had overseen such dredge and fill permits until 2020. 

“The U.S. Army Corps of Engineers is open for business to process wetland permits for the State of Florida. The only thing standing in the way is Florida’s refusal to transfer those applications to the court,” Reichert countered. 

The State of Florida’s oversight of the 404 permitting process was criticized by environmentalists from the outset, with activists and organizations warning that the State didn’t have the resources to implement it well. 

Fumero and other developers’ attorneys, however, have said the State implemented the permitting process efficiently. 

The case could make its way all the way to the Supreme Court, depending on the outcome of these filings and the appeal, Reichert said.

Meanwhile, the current request for Florida to continue overseeing the permits amidst the appeal is likely to be decided by the end of May, according to filing requests. 

The outcome of this decision could put Bellmar and Kingston developments, which are controversial and within panther habitat, as well as others, back into action.