Federal Appellate Judges Rule On Florida’s Assumption Of Federal 404 Permitting Program
By Susan Roeder Martin and John J. Fumero
On March 27, 2026, the U.S. Court of Appeals for the D.C. Circuit upheld a lower court opinion vacating Florida’s assumption of federal Clean Water Act § 404 permitting. The Court maintained that Florida’s assumption of the §404 permitting program violated the Endangered Species Act. The ruling confirms that the U.S. Army Corps of Engineers (“Corps”) retains jurisdiction over dredge-and-fill permits in Florida wetlands, invalidating the state’s 2020 program assumption.
History of Florida’s Assumption of Federal § 404 Permitting
Section 404 of the Clean Water Act (Title 33 of the U.S. Code) requires a permit from the Corps before dredged or fill material may be discharged into a Water of the United States (“WOTUS”). Through this authority, pursuant to the section 1251, et seq. of the Clean Water Act, the Corps regulates certain jurisdictional wetlands.
The Corps regulation of wetlands was viewed by Florida’s Governor and the regulated community as duplicative of Florida’s statewide program regulating wetlands. Therefore, Florida applied to the federal agencies to assume the federal permitting program. In December 2020, after a lengthy federal assumption process, approval was granted to Florida to assume this permitting. Only two other states have assumed the 404 permitting program: Michigan and New Jersey. However, Michigan and New Jersey’s assumption differed from Florida’s assumption. In other states, the Corps issues 404 permits.
Prior Legal Challenges
The Center for Biological Diversity and five other environmental groups filed suit alleging that the EPA, United States Fish and Wildlife Service (“USFWS”), and the Corps, violated the federal Administrative Procedure Act, Clean Water Act, and Endangered Species Act when they transferred permitting authority to Florida.
Florida’s assumption was struck down in a lower federal court order, and that order was appealed by the State of Florida. The U.S. Court of Appeals for the District of Columbia Circuit considered the issues appealed from the lower court’s order. On March 27, 2026, the appellate court affirmed the lower court and vacated Florida’s assumption. The appellate court confirmed that the federal agencies acted unlawfully when they previously approved Florida’s assumption package. The ruling does not affect Michigan’s or New Jersey’s assumption.
The ruling included a consideration as to whether EPA and USFWS could approve Florida’s 404 program by performing a programmatic Endangered Species Act review at the beginning of the process, with specifics determined later. The court answered this question in the negative, saying it is an impermissible short cut.
Major Announcement by Army Corps of Engineers’ Official
On March 31, 2026, close to the time that the U.S. Court of Appeals for the D.C. Circuit issued its order, Lee Forsgren, the Corps’ Principal Deputy Assistant Secretary for Civil Works, during a meeting of the Environmental Council of the States in Savannah, Georgia, made a major announcement. As Principal Deputy to the Assistant Secretary he provides policy and performance oversight for the U.S. Army Corps of Engineers Civil Works program. He stated the Corps is “getting out of the business of regulating wetlands.” Army Corps officials now say that the statement was not meant as a total abdication of oversight over wetlands. Rather, it reflects the agency’s limited authority under the Clean Water Act based, in part, on the 2023 Supreme Court Ruling in the Sackett case that reduced the Clean Water Act’s scope over federal jurisdictional wetlands. Mr. Forsgren stated the Corps will instead focus on its core duty pertaining to civil works. No formal action has been taken by the Corps. We will closely monitor the federal agencies’ next steps.