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Miccosukee Tribe wetlands permitting case put on hold

Tricia Woolfenden

TALLAHASSEE — Amid battles in two courts about a 2020 decision by the federal government to shift wetlands-permitting authority to the state, a judge Monday put on hold a lawsuit filed by the Miccosukee Tribe of Indians of Florida.

U.S. District Judge K. Michael Moore approved a request from U.S. Department of Justice attorneys for a stay of the Miccosukee Tribe lawsuit after another federal judge last month ruled that the permitting authority had been improperly transferred to the state and should be vacated.

The issue is being closely watched by business and environmental groups because it affects permitting for a wide range of development projects that affect wetlands.

The U.S. Army Corps of Engineers usually holds the permitting authority, but the federal government transferred the power to the state in late 2020, about a month before former President Donald Trump’s administration ended.

The Miccosukee Tribe filed its lawsuit in 2022 against the U.S. Environmental Protection Agency to challenge the transfer. The lawsuit, filed in South Florida, alleges, at least in part, that the transfer violated the federal Clean Water Act.

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That case came after 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 filed a lawsuit in 2021 in Washington, D.C., challenging the transfer.

Florida has intervened in both cases to help defend the transfer.

In the Washington, D.C., case, U.S. District Judge Randolph Moss on Feb.15 found that actions by the EPA and the U.S. Fish and Wildlife Service in approving the permitting shift violated the federal Endangered Species Act.

While Moss vacated the transfer, legal wrangling has continued. In part, that is because he said the state and the federal government could seek a stay of his ruling. He also did not decide certain legal issues in the case.

The state on Feb. 26 filed a motion for a stay of Moss’ decision. The judge has not ruled on the motion and has scheduled an April 4 conference in Washington. The environmental groups have opposed a stay.

Attorneys for the state also have urged Moss to issue a final judgment, which would help clear the way for an appeal.

In a three-page order Monday, Moore issued a stay of the Miccosukee Tribe case until April 17. Moore wrote that he would be “unable to grant meaningful relief” if Moss issues a final judgment vacating approval of the permitting transfer in the other case.

The tribe objected to the stay, in part because it said its case was based on different issues — including the Clean Water Act — than the decision in the Washington, D.C., case.

The law firm Longman, Lewis & Walker, which represents clients on land-use and environmental issues, posted an update Friday on its website that said “we are likely to be in a holding pattern until after the parties meet on April 4” in Washington, unless Moss issues a ruling. The cases involve what are known as section 404 permits.

“During this period, no state 404 permit applications are being processed and, accordingly, many people are in limbo as to whether to file their permit applications anew with the (U.S. Army) Corps or wait on relief from the court,” Lewis, Longman & Walker attorneys Michelle Diffenderfer and Katherine Hupp wrote in the update.

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