Florida Permitting Fight Flares in Congress

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As court battles continue, supporters of Florida keeping permitting authority for projects that affect wetlands are trying a different tack: Put it in federal law.


U.S. Rep. Aaron Bean, R-Fla., this week added an amendment to a bill to try to codify a 2020 decision by the U.S. Environmental Protection Agency that shifted permitting authority from the federal government to Florida.

The move came after U.S. District Judge Randolph Moss last month ruled that the permitting authority had been improperly transferred to the state and should be vacated. That has led to a flurry of court filings as the state tries to keep the authority — and argues that the ruling has left development projects in limbo.

Bean’s amendment, which was added Thursday to a bill called the “Creating Confidence in Clean Water Permitting Act,” said the EPA’s 2020 transfer decision “shall have the force and effect of law.” Bean, who served in the Florida House and Senate before getting elected to Congress in 2022, said “thousands of projects” are on hold because of the issue.

“Give us the chance to continue this important work in the state of Florida,” Bean said as he presented the amendment.

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The fate of the overall bill is unclear, at least in part because it has drawn opposition from the Biden administration. In a statement issued last week, the White House said the bill “would weaken the Clean Water Act, remove protections for waterways that are vital to the well-being of American families, and undermine ongoing, bipartisan efforts to improve the efficiency and effectiveness of infrastructure permitting processes.”

The Republican-controlled House passed the bill Thursday by a narrow 213-205 margin.

Bean’s amendment, which deals with what are known as section “404″ permits, passed in a voice vote, after drawing criticism from U.S. Rep. Grace Napolitano, D-Calif.

“The state of Florida can pursue implementing a 404 program but through the proper approval process, and Congress should not mandate a program that has been deemed deficient by the courts,” Napolitano said on the House floor.

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The U.S. Army Corps of Engineers usually holds the permitting authority, but the federal government transferred the power to the state in late 2020, about a month before former President Donald Trump’s administration ended.

The Center for Biological Diversity, Defenders of Wildlife, the Sierra Club, the Conservancy of Southwest Florida, the Florida Wildlife Federation, Miami Waterkeeper and St. Johns Riverkeeper filed a lawsuit in 2021 in Washington, D.C., challenging the transfer.

The Washington-based Moss on Feb.15 found that actions by the EPA and the U.S. Fish and Wildlife Service in approving the permitting shift violated the federal Endangered Species Act. Moss vacated the transfer but said the state and the federal government could seek a stay of his ruling. He also did not decide certain legal issues in the case.

The state on Feb. 26 filed a motion for a stay of Moss’ decision. The judge has not ruled on the motion and has scheduled an April 4 conference in Washington. The environmental groups have opposed a stay.

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Attorneys for the state also have urged Moss to issue a final judgment, which could help clear the way for an appeal. But the environmental groups Thursday filed a 39-page response objecting to the issuance of a final judgment.

In part, the environmental groups pointed to other issues in the case that Moss has not decided. For example, one of those issues involves the Clean Water Act.

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