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Judge denies Florida's request to keep processing some wetlands permits, after program was revoked

Image of wetlands.
Ron Lach
As of the early 1990s, only about half of Florida's original, 20.3 million acres of wetlands remain, according to the U.S. Fish and Wildlife Service.

A federal judge issued a motion Friday denying Florida's request for a partial exemption of his recent ruling revoking Florida’s authority of the federal wetlands permitting program.

Named for Section 404 of the Clean Water Act, the 404 permitting program regulates the discharge of dredged or fill material into certain United States waters, including wetlands, which are often destroyed for new development projects.

After the judge’s February ruling, any 404 permit applications for those development projects fell into “regulatory limbo”: stalling likely more than a thousand “pending or forthcoming” requested permits, according to Florida’s motion for a limited stay.

But the 404 program also permits some environmental restoration projects, said attorney and Nason Yeager shareholder Susan Roeder Martin, who’s representing many clients impacted by the February ruling. Often, mitigation bank programs in Florida allow developers to implement those kinds of restoration projects, buying and using “mitigation credits” to offset the wetlands destruction they cause elsewhere.

“It has to be the same habitat, so if you impact a marsh, you have to buy marsh credits; you can’t buy forested credits,” Roeder Martin said.

The impacts of revoking Florida’s 404 program, she says, extend far beyond the typical development project.

“It’s not only holding up development and having a negative economic impact in that sense. It's also holding up environmental restoration,” Roeder Martin said, adding she didn’t know specifically which restoration projects are currently on hold.

Of the 272 State 404 permits issued between July 1, 2022 and June 30, 2023, just 1 was for ecological restoration, according to Florida’s annual program report. Three permits were issued for ditches/canals/flood control, and single-family residence housing was by far the biggest category, with 134 permits issued.

Screengrab from a GIS mapping tool showing where State 404 permits are active in Orange County.
State 404 Program Permits Dataset
This GIS mapping tool from the Florida Department of Environmental Protection (FDEP) shows where projects with State 404 permits are located in Orange County.

Florida’s version of the 404 program fell short on the program’s Endangered Species Act provisions, according to U.S. District Judge Randolph Moss’s February ruling.

Christina Reichert, a senior attorney at Earthjustice’s Florida office who’s helping litigate the ongoing case, said Florida’s program “failed to show that the program would protect species as required."

“They didn't do what was required to make sure that there wouldn't be any substantial harm to the many protected species that are in the state of Florida,” Reichert said. “Florida has … over 130 listed species in the state; we have immense biodiversity that needs to be protected. And a lot of those species rely on wetlands to survive.”

Although February’s ruling halted Florida’s State 404 program, the lawsuit is still ongoing, with the judge still weighing other aspects of the case.

Updated: April 12, 2024 at 2:28 PM EDT
This story was updated Friday afternoon after a federal judge issued a ruling denying Florida's request for a limited stay.
Molly is an award-winning reporter with a background in video production and investigative journalism, focused on covering environmental issues for Central Florida Public Media.
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