The challenge arose from Florida's Section 404 Clean Water Act permitting program that would allow developers to discharge pollutants into Florida waters while avoiding liability for harming protected species like the Florida panther and West Indian manatee. Florida collaborated with the EPA and Fish and Wildlife Service to create a 'technical assistance process' designed to be less 'burdensome' than traditional ESA requirements, eliminating the need for individual permit holders to seek separate endangered species permits.
Writing for a divided three-judge panel, Circuit Judge Pan found the agencies' approval violated ESA consultation requirements. 'The FWS thus abdicated its responsibility to enforce the ESA: The agency essentially delegated that job to Florida without ensuring that Florida would protect endangered and threatened species in the manner specified by the ESA,' Judge Pan wrote. The court rejected the agencies' argument that the technical assistance process was 'as protective' as required ESA procedures, noting it was specifically designed to be 'streamlined' and less demanding than Section 7 consultation requirements.
The district court had previously ruled against the agencies in 2024, vacating both the FWS's biological opinion and incidental take statement, as well as the EPA's approval of Florida's permitting application. Environmental groups including the Center for Biological Diversity had challenged the program, arguing that agencies failed to properly analyze effects on protected species and inadequately consulted with federal wildlife services.
The ruling invalidates a novel approach that Florida had hoped would expedite development projects while maintaining endangered species protections. The decision requires agencies to conduct proper ESA analyses before approving similar state permitting programs, potentially affecting other states seeking to streamline environmental review processes.