Florida businesses urge a stay in a wetlands permitting fight

The groups and companies Saturday filed a friend-of-the-court brief supporting a request by the state for a partial stay of a Feb. 15 ruling by U.S. District Judge Randolph Moss. The Washington, D.C.-based judge found that federal officials did not follow required steps in 2020 before transferring wetlands-related permitting authority from the federal government to the state.

Siding with environmental groups, Moss issued an order vacating approval of the shift. But the business groups and companies said in the brief that the ruling, without a stay, could cause wide-ranging problems, such as permitting delays, for planned developments.

“The inevitable delay that would arise without a stay would devastate Florida’s construction industry (directly) and would wound (the) state’s economy (as a downstream effect), exacerbating the affordable housing crisis,” the brief said.

Groups and companies that filed the brief included the Florida Chamber of Commerce, Associated Industries of Florida, the Association of Florida Community Developers, the Florida Home Builders Association, the Mosaic phosphate company and the home builders Lennar Corp. and KB Home.

The U.S. Environmental Protection Agency approved the transfer of the permitting authority to the state in December 2020, about a month before former President Donald Trump’s administration ended. Florida became the third state, after Michigan and New Jersey, to receive the permitting authority, which is usually held by the U.S. Army Corps of Engineers.

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 the lawsuit in January 2021 against the federal government. The state later intervened in the case.

In his Feb. 15 ruling, Moss found that actions by the EPA and the U.S. Fish and Wildlife Service in approving the shift violated the Endangered Species Act.

The ruling focused, in part, on whether the U.S. Fish and Wildlife Service properly prepared a biological opinion and what is known as an “incidental take statement” as part of the process of approving the transfer. Incidental takes are situations in which threatened or endangered species could be killed or harmed as a result of what are allowed activities.

Moss said a biological opinion and incidental take statement did not comply with the Endangered Species Act and another law known as the Administrative Procedure Act. He wrote that because the biological opinion and incidental take statement that the Fish and Wildlife Service “issued in this case were facially and legally flawed, the EPA unreasonably relied on those documents in approving Florida’s assumption application.”

Lawyers for the state last week sought a limited stay of the ruling to keep the “bulk” of Florida’s permitting program until a new plan can be put in place or until further court rulings. As an example, the Department of Environmental Protection suggested the state continue handling permits that would not affect endangered species.

The state’s filing said the ruling could affect more than 1,000 permit applications that are “now in regulatory limbo with no clear timeline or expectation for a permit decision. This includes pending permit applications for roads and bridges, hospital construction projects, school buildings and facilities, affordable housing, military base projects, power grid reliability projects (including construction of new power generation facilities and transmission lines), and various projects necessary to improve water quality in the Everglades, just to name a handful of examples.”

As of early Monday afternoon, the environmental groups had not filed a response to the state’s request for a stay, according to a court docket.

But U.S. Department of Justice lawyers said in a separate filing that federal officials don’t think a stay would work.

“As a practical matter, it is unclear how, or even if, Florida and the (Army) Corps could divide permitting responsibilities for projects in state-assumed waters depending on whether those projects ‘may affect’ listed species,” the Justice Department lawyers wrote. “Under such an arrangement, would applicants apply to Florida or the Corps in the first instance? Who would then determine impacts on ESA-listed (Endangered Species Act-listed) species? And what would happen if Florida and the Corps disagreed on that determination? The time needed to answer these, and many other difficult questions could exceed the uncertain duration of a limited stay and would consume considerable agency resources that might otherwise go toward processing permit applications in the meantime.”

In their brief, however, the business groups and companies disputed the Justice Department position and warned of economic fallout from Moss’ ruling.

“Large communities in particular require coordination of an astonishing number of permits, entitlements, and contracts,” the brief said. “Delay of any essential permit snowballs through all subsequent planning and coordination aspects. The result: production delays, which increase costs for all parties — large and small — in the construction industry.”