Surpassing:EPA puts Florida panthers at risk, judge finds. Wetlands ruling could have national implications.

The Surpassingsleek and tawny Florida panther faces constant threats as human development expands into the remaining pocket of its homelands, but conservationists won a key battle last week on the rare cats' behalf.

The Environmental Protection Agency failed to ensure protection of endangered species like the panther when it handed over its permitting responsibility to the state of Florida, a federal court ruled last week, revoking the state's permission to issue federal wetlands permits in a ruling that could have national implications.

The decision will serve as a warning for other states considering a similar takeover of wetlands permitting and restore a crucial layer of protection for endangered species, such as the Florida panther, that depend on wetlands for survival, conservation advocates said.

Millions of acres of wetlands – areas such as swamps where soil is saturated by ground water – are protected under laws requiring permits to do anything that would disturb them, including construction.

Federal wetland permitting is intended to enforce provisions of the nation’s Clean Water Act, but the law also requires agencies and developers take into account the impacts wetland destruction would have on endangered species by consulting with federal wildlife officials.

The EPA failed to follow the law when relinquishing its permitting responsibilities to Florida in 2020, U.S. District Court Judge Randolph Moss in Washington D.C. ruled. Florida was one of just three states in the country, along with Michigan and New Jersey, that had assumed responsibility for enforcing wetland protections. Other states have discussed doing the same.

Though other questions in the lawsuit about Florida's compliance with the Clean Water Act remain unresolved, environmental advocates celebrated the ruling, hailing it as a win for waterways and wildlife, not just in Florida but across the nation.

"If a state wants to assume authority to issue wetlands permits, it needs to find a way to do that in compliance with the Endangered Species Act," said Elise Bennett, an attorney and Florida and Caribbean director for the Center for Biological Diversity.

Permitting authority will return to the Army Corps of Engineers, although the state has 10 days to seek a stay to delay the order.

Enforcing the Endangered Species Act

The judge concluded that because development projects would impact endangered species, Florida couldn't issue permits through the "flawed workaround" it had reached with the EPA, said Amber Crook, environmental resource policy manager for the Conservancy of Southwest Florida.

"A lot of projects have been given permits in this flawed process," Crook said.

In February last year – a little over two years into its new responsibilities – the Florida Department of Environmental Protection had issued more than 1,500 Section 404 permits, said department spokeswoman Alexandra Kuchta. Of those, she said 145 applications had been denied.

Florida officials asked to handle wetland permitting hoping to create a one-stop process for developers, saying the state would be able to make permitting decisions faster and more efficiently than federal regulators, while still protecting the environment. They argued the Army Corps is underfunded to handle the volume of permits in the state.

U.S. Sen. Rick Scott, R-Fla. helped open discussions of Florida assuming those responsibilities when he was governor. In documents submitted to the EPA, he said the "duplicative rules on the state and federal levels were a waste of taxpayer dollars, and created confusion for everyone involved."

Environmental advocates insisted from the beginning that taking over the federal permitting was the state's way of getting around protections for endangered and threatened species.

Groups such as Defenders of Wildlife and the Sierra Club argued state-level permitting could be swayed too much by development interests and political influence. They feared the state would lose key wetlands and protect species habitat, and said ordinary Floridians risked losing protections built into the federal system.

Other states have considered taking over wetland permitting

The EPA has been working on the process to streamline regulations for other states to assume wetlands permitting authority. Several states, including Alaska, have worked toward or investigated taking over permitting but have been hampered by lack of funding and clarity, as well as the potential controversy, according to EPA documents.

The new ruling will prevent other states from doing it the way Florida was allowed, Bennett said.

“No state can be allowed to take over a federal program as important as the Clean Water Act’s wetlands permitting program by making an end-run around the Endangered Species Act," said Bennett's colleague and fellow attorney Christina Reichert.  

Wetland permitting in Florida

Although Moss's ruling isn't expected to impact projects that already have dredge and fill permits, major projects in the pipeline could be stalled for further review.

One project of concern to the environmental groups is the 6,676-acre proposed Kingston development in Lee County in Southwest Florida, the region where the last of the Florida panthers struggle to survive.

The judge's ruling stated that because proposed developments in the region may impact species such as the panther, the state can’t issue a permit through its deal with the EPA, Crook said.

The U.S. Fish and Wildlife Service estimates the project could result in the death of up to 23 endangered panthers a year. That's between 10% and 20% of the entire population, according to estimates by state wildlife officials.

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According to the state, the Kingston development would impact almost 13 acres of wetlands, which the developer plans to offset with mitigation and conservation of about half the acreage in the project. If approved, the development could generate an estimated 94,000 vehicle trips per day.

“The agencies failed to explain how that monstrous loss would be acceptable or to explain how it could be in compliance with the Endangered Species Act, which ensures no species should be jeopardized by a permit like this,” Bennett said. "When the Army Corps issues permits, they unquestionably have to comply with the act and do a thorough consultation with the U.S. Fish and Wildlife Service."

Kingston's developer, Joe Cameratta, CEO of Cameratta Companies, said the ruling will shut down parts of Florida's development industry.

"Anybody that's got any species, from a bonneted bat to an indigo snake to the Florida panther will be impacted," he said. "So basically you just shut down the development industry. I guess that's good news for environmental groups."

Cameratta said he followed the rules and regulations, and that his project is likely offline for a few years. 

"I'll just see what kind of new rules I have to play by," he said.