ELR Citation: 56 ELR 20038
No(s). 24-5101 (D.C. Cir. Mar 27, 2026)

The D.C. Circuit, 2-1, affirmed summary judgment for environmental groups in a challenge to EPA's approval of Florida's CWA §404 permitting application and FWS' programmatic biological opinion (BiOp). The groups argued FWS violated the ESA by not taking necessary steps before finding that Florida's permitting program would not jeopardize protected species and before concluding Florida's plan would provide adequate protection against incidental take. They also argued EPA violated the ESA by approving the permitting program in reliance on FWS' inadequate conclusions and failing to consult with NMFS. The district court agreed, vacating the BiOp and incidental take statement (ITS) that FWS had prepared to support its approval and vacating EPA's approval of Florida's application to issue permits under the CWA. The appellate court held that the BiOp and ITS must be set aside because they did not comply with the ESA, that EPA violated the ESA by relying on the deficient BiOp and ITS, and that EPA erred in failing to engage in a mandatory, formal consultation with NMFS. It further concluded EPA's approval of Florida's permitting program must be vacated because the approval relied on the problematic ITS and because EPA approved the application without the benefit of consultation with NMFS.