Wetlands Fight to Continue for Months

TALLAHASSEE — While Florida has sought to speed up the case, an appeals-court battle about permitting authority for projects that affect wetlands likely will not be resolved until late this year — at the soonest.

The U.S. Circuit Court of Appeals for the District of Columbia on Tuesday issued an order that gave a schedule for the state, the federal government and environmental groups to file briefs in the case. The earliest briefs will be filed in August, and final briefs will be filed in November.

The order also did not set a date for oral arguments, with the court saying it will inform the parties later.

Florida in May filed a motion seeking “expedited” consideration of the case, which is being closely watched by business and environmental groups. Florida is seeking to overturn a ruling by a district judge that vacated a 2020 decision by the U.S. Environmental Protection Agency to shift permitting authority from federal officials to the state.

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In requesting expedited consideration, the state made a series of arguments, including that Florida “has suffered — and will continue to suffer — an irreparable injury from having its … program stripped away during lengthy appellate proceedings.”

But the federal government and environmental groups opposed speeding up the appeal. They said, in part, that the U.S. Army Corps of Engineers is handling the wetlands-related permitting after U.S. District Judge Randolph Moss vacated the shift of the authority to the state. The Army Corps also had the authority before the 2020 shift.

“There is no evidence that the regulated community is ‘in disarray’ because the (Army) Corps has resumed authority over the program and is presently reviewing and issuing permits,” lawyers from the Earthjustice legal organization, which represents the environmental groups, wrote in a June 3 court document. “And there is no evidence that the public requires expedited resolution of the appeal since the Corps is fully capable of permitting projects where the public is a beneficiary.”

Tuesday’s order setting the schedule was in response to the state’s motion to expedite the case.

The U.S. Environmental Protection Agency approved the transfer of the permitting authority to Florida in December 2020, about a month before former President Donald Trump’s administration ended. The move made Florida only the third state, after Michigan and New Jersey, to receive the authority.

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Earthjustice filed the lawsuit in 2021 against the federal government on behalf of 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. The state later intervened to defend the transfer.

In a February ruling, Moss found that actions by the U.S. Environmental Protection Agency and the U.S. Fish and Wildlife Service in approving the shift violated the federal Endangered Species Act, and he vacated the transfer. In April, Moss issued a final judgment that cleared the way for appeals.

The state quickly appealed. Meanwhile, the federal government and the environmental groups filed notices of appeal this month. While Moss sided with the environmental groups in vacating the transfer of authority, the groups are appealing parts of his ruling that dismissed issues in the case.

Before seeking expedited consideration of the appeal, the state in April also sought a stay of Moss’ ruling while the appeal plays out. But a three-judge panel of the appeals court issued an order in May that said Florida “has not satisfied the stringent requirements for a stay.”

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