The Supreme Court's definition of Waters of the United States was far narrower than the definition that was the foundation of the Trump Administration's Navigable Waters Protection Rule.
But before the Supreme Court decided Sackett, EPA had, at the very end of the Trump Administration, agreed that Florida could be the third State in the Union to issue the permits necessary to dredge or fill wetlands protected by the Clean Water Act. Those permits, required by Section 404 of the Act, would otherwise be issued by the Army Corps of Engineers.
This week Judge Moss entered final judgment in favor of the plaintiff with respect to the counts of its complaint alleging that EPA and the United States Fish and Wildlife Service did not do what was required by the Endangered Species Act before delegating the Federal Government's wetland protection job to the State of Florida. Florida says it will now seek to get back what the Trump Administration EPA gave it before the Judge took it away.
I'm wondering why Florida is pressing to be only the third state to be able to do what the Federal Government would otherwise do now that what the Federal Government can do has been so substantially limited.
Regardless of Florida's reason, as I told Juan-Carlos Rodriguez of Law 360, I doubt that the Court of Appeals is going to overturn Judge Moss's decision and I'm even more certain that, at least during the Biden Administration, EPA and the other Federal agencies involved, are not going to be turning themselves inside out trying to cede what is left of the Corps of Engineers' Clean Water Act jurisdiction to the State of Florida.
But Porter said it isn't likely that a lot of states are going to try to take over the program, which requires significant resources and expertise. He noted that in last May's Sackett v. EPA , the U.S. Supreme Court reduced the number of wetlands subject to federal jurisdiction, which could also play a factor in decisions about whether to delegate Section 404 authority. "I don't think a bunch of states are going to be seeking to be delegated this authority, at least while there's a Democratic administration," he said. "And I don't think a lot of states are going to find a receptive audience in the federal government, which I would expect is pretty passionate about keeping the remaining authority."
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