Apr 6, 2026

Florida 404 Program Denied Again by the D.C. Court of Appeals – Update from Lewis, Longman & Walker, P.A.

by Michelle Diffenderfer and Katherine L. Hupp

On Friday, March 27, 2026, the U.S. Court of Appeals for the D.C. Circuit affirmed the vacatur of EPA’s approval of Florida’s Clean Water Act § 404 permitting program, holding that the EPA violated the Endangered Species Act (ESA) on several grounds, including by deferring the review of key species protections to a later state-implemented “technical assistance” process.

In an analogy, Judge Florence Pan likened the federal agencies’ approach in this case to a DMV issuing vehicle registrations based solely on a promise that inspections would occur later: “The DMV manager . . . says to the inspector, ‘Well, if you believe it’s good enough that he promises that the trucks will comply with the safety regulations, and if he says that he’ll ask you for help if he has any questions . . . go ahead and certify that all his trucks have passed inspection, and I’ll issue the registrations.’”

As part of its approval of Florida’s assumption of the 404 permitting program, EPA relied on a programmatic Biological Opinion (BiOp) and Incidental Take Statement (ITS) that failed to analyze species-specific impacts of Florida’s permitting program, with no mechanism to ensure that sufficient species-specific impacts analyses would occur on a project-by-project basis when the state program was implemented.  Notably, the “technical assistance” process that was baked into the BiOp, which Florida and federal agencies alleged was sufficiently structured to satisfy ESA requirements, did not mandate that the U.S. Fish and Wildlife Service weigh in to overturn Florida’s effects determinations on individual permit applications.

The D.C. Circuit held that this approach fails ESA § 7’s core requirement that agencies consult with the U.S. Fish and Wildlife Service to evaluate impacts of programs or projects on listed species and critical habitat.  The court affirmed that agencies cannot defer an impacts analysis to a “technical assistance” process that is less stringent than § 7 consultation.

Because the BiOp lacked the species-specific analysis required by § 7 and instead relied on a less rigorous advisory process, and the ITS lacked enforceable take limitations, the court found that the agencies acted unlawfully under both the ESA and the Administrative Procedure Act.

After determining the insufficient BiOp and ITS should be set aside, the D.C. Circuit determined that EPA independently erred by relying on the deficient consultation to approve Florida’s § 404 program, as well as by failing to consult with the National Marine Fisheries Service on marine species impacts. Thus, the court affirmed the vacatur of EPA’s approval of Florida’s program.

This appeal followed the D.C. District Court’s vacatur of Florida’s § 404 program in 2024, which returned permitting authority to the U.S. Army Corps of Engineers (Corps) and caused significant disruption for applicants and agencies.

Florida and the federal agencies have the opportunity to request a rehearing of the D.C. Circuit’s decision. Meanwhile, legislation that has passed the U.S. House of Representatives and is currently in the U.S. Senate would codify Florida’s 404 program which would trigger another reshuffling.  For now, however, the § 404 permitting program remains with the Corps. 

If you are interested in learning more about Florida’s assumption of the § 404 program and the subsequent litigation challenging the assumption, review our prior client alerts:
 

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