ELR Citation: 54 ELR 20025
No(s). 21-119 (RDM) (D.D.C. Feb 15, 2024) (Moss, J.)

A district court granted in part environmental groups' motion for summary judgment in a challenge to various agency actions relating to EPA's approval of the state of Florida's application to assume permitting authority under §404 of the CWA. The groups argued EPA and FWS violated the ESA because neither the programmatic biological opinion (BiOp) nor the programmatic incidental take statement (ITS) included species-specific analysis, effects analysis, numerical quantification of take, and related statutory and regulatory requirements. The agencies countered that even if the BiOp and ITS lacked these mandated elements, FWS and EPA permissibly deferred relevant considerations to an alternative "technical assistance process," under which Florida was required to consult with FWS regarding each permit application, FWS was provided the “opportunity” to specify take limits, and Florida was required to include those limits in its state-issued permits. The court found that FWS' BiOp and ITS failed to satisfy the requirements of the ESA, and was unpersuaded that the non-statutory technical assistance process was a lawful substitute for the procedures and remedies that Congress enacted in the ESA and that FWS and NMFS established in their implementing regulations. It granted summary judgment for the groups on their ESA claims, and vacated EPA's approval of Florida's assumption application.