# Center for Biological Diversity v. Andrew Wheeler

> District Court, District of Columbia · February 15, 2024

URL: https://www.frixlaw.com/law-library/cases/9941804

## Case

- **Court:** District Court, District of Columbia
- **Decided:** February 15, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Randolph D. Moss
- **Nature of suit:** Civil
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9941804

## How later opinions describe it (automated extraction)

- rejecting surrogate that pegged 161 turtle takes to 252,323 dredge hours without sufficient explanation

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL DIVERSITY,
et al.,

Plaintiffs,
Civil Action No. 21-119 (RDM)
v.

MICHAEL S. REGAN, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs the Center for Biological Diversity, Defenders of Wildlife, the Sierra Club, the

Conservancy of Southwest Florida, Florida Wildlife Federation, Miami Waterkeeper, and St.

Johns Riverkeeper (“Plaintiffs”) bring this challenge to various agency actions relating to the

Environmental Protection Agency’s (“EPA”) approval of the State of Florida’s application to

assume (from the U.S. Army Corps of Engineers (“Corps”)) permitting authority under Section

404 of the Clean Water Act (“CWA”) within the State. See Ctr. for Biological Diversity v.

Regan, 597 F. Supp. 3d 173, 179 (D.D.C. 2022) (“CBD I”). Defendants include the EPA, the

Corps, the U.S. Fish and Wildlife Service (“FWS”), the National Marine Fisheries Service

(“NMFS”), and several federal officials sued in their official capacities (collectively, the

“Federal Defendants”). Defendants also include the State of Florida and the Florida Department

of Environmental Protection (“FDEP”) (collectively, “Florida” or the “State”), which have

intervened to defend the assumption and resulting permitting program.

Plaintiffs allege that the Federal Defendants violated the Administrative Procedure Act

(“APA”), 5 U.S.C. § 551 et seq., the Clean Water Act, 33 U.S.C. § 1251 et seq., the Endangered
Species Act (“ESA”), 16 U.S.C. § 1531 et seq., and the Rivers and Harbors Act, 33 U.S.C. § 401

et seq., in their rush to transfer this permitting authority to Florida in the final days of the last

administration. In prior opinions, the Court addressed some, but not all, of Plaintiffs’ APA

claims. This opinion addresses only Plaintiffs’ claims involving the Endangered Species Act; the

Court will, if necessary, address the remaining claims in a subsequent opinion.

Given the complexity of the relevant statutory and regulatory background, it is necessary

to provide somewhat greater detail than usual to introduce the questions presented. Under the

ESA’s implementing regulations, an “action agency”—here, the EPA—is required to “review its

[contemplated] actions at the earliest possible time to determine whether any action may affect

listed species or critical habitat.” 50 C.F.R. § 402.14(a). If the action agency determines that an

“action may affect a listed species or critical habitat,” id., the agency must consult with the FWS

and/or the National Marine Fisheries Service (“NMFS”) (collectively, the “Service” or

“Services”) to ensure that its contemplated action “is not likely to jeopardize the continued

existence of any endangered or threatened species.” 16 U.S.C. § 1536(a)(2). That process,

which is referred to as “Section 7 consultation,” requires the “consulting agency”—that is, the

FWS and/or the NMFS—to prepare a Biological Opinion (“BiOp”), which details “how the

agency action [at issue] affects the species or its critical habitat” and to determine whether the

proposed action is likely to jeopardize the continued existence of any listed species. Id.

§ 1536(b)(3)(A). “If jeopardy . . . is found,” the consulting agency is required to “suggest those

reasonable and prudent alternatives which [the consulting agency] believes would not violate

[the ESA] and [that] c[ould] be taken by the [action] agency or applicant in implementing the

agency action.” Id. “Following the issuance of a ‘jeopardy’ opinion, the [action] agency must

either terminate the action, implement the proposed alternative, or seek an exemption from the

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Cabinet-level Endangered Species Committee pursuant to 16 U.S.C. § 1536(e).” Nat’l Ass’n of

Home Builders v. Defs. of Wildlife, 551 U.S. 644, 652 (2007).

On the other hand, if the Service determines that the agency action will not violate the

ESA (i.e., that no “jeopardy” is likely) or that “reasonable and prudent alternatives” would avoid

any such violation, the consulting agency must determine whether any “incidental take” of a

listed species is nevertheless “likely to occur.” 50 C.F.R. § 402.14(g)(5)–(7). The ESA defines

“take” to mean “to harass, harm, pursue, hunt, shoot, wound, trap, kill, capture, or collect, or to

attempt to engage in any such conduct” with respect to a listed species. 16 U.S.C. § 1532(19).

“Take” is incidental if it “results from, but [is] not the purpose of, carrying out an otherwise

lawful activity conducted by the Federal agency or applicant.” 50 C.F.R. § 402.02.

If “incidental take” is “reasonably certain to occur,” id. § 402.14(g)(7); see Shafer &

Freeman Lakes Env’t Conservation Corp. v. FERC, 992 F.3d 1071, 1080 (D.C. Cir. 2021), the

consulting agency is required to issue an Incidental Take Statement (“ITS”), which, among other

things, “specifies the impact of such incidental taking on the species” and “sets forth the terms

and conditions . . . that must be complied with by the [action] agency or applicant (if any), or

both,” in order to “minimize such impact,” 16 U.S.C. § 1536(b)(4). Significantly, the ITS must

specify “the amount or extent[] of such incidental taking on the species” or must use a “surrogate

(e.g., similarly affected species or habitat or ecological conditions)” that can “be used to express

the amount or extent of anticipated take” and that “sets a clear standard for determining when the

level of anticipated take has been exceeded.” 50 C.F.R. § 402.14(i). The ITS serves the ESA’s

mandate “to give endangered species priority over the ‘primary missions’ of federal agencies,”

Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185 (1978) (“TVA”), because, if the incidental take limit

3
is exceeded, the action agency “must reinitiate consultation immediately.” 50 C.F.R.

§ 402.14(i)(4) (emphasis added).

The ITS is also important to regulated parties and serves their need for clarity, because

“any taking that is in compliance with the terms and conditions specified in the [ITS] shall not be

considered to be a prohibited taking of the species concerned.” 16 U.S.C. § 1536(o)(2). As

discussed further below, however, formal consultation under Section 7 is not the only way a

State or permittee can obtain liability protection: Under Section 10 of the ESA, a State or private

party may seek a permit that allows “any taking otherwise prohibited by” the ESA and that,

accordingly, provides protection from liability for incidental take, id. § 1539(a)(1)(B). But

absent liability protection of some sort, anyone who violates the ESA by taking an endangered or

listed “species within the United States,” id. § 1538(a)(1)(B), risks civil penalties, criminal

liability, and “[c]itizen suits,” id. § 1540(a), (b) & (g).

This case turns on the meaning and operation of these provisions, along with the

subsection of the CWA that authorizes a State to apply to the EPA to assume Section 404

permitting authority from the Corps. See 33 U.S.C. § 1344(g). Here, Florida submitted an

assumption application on August 20, 2020. Only twice before has the EPA approved a State’s

assumption application—it approved Michigan’s application in 1984 and New Jersey’s

application in 1994. See 40 C.F.R. § 233.70 (Michigan); id. § 233.71 (New Jersey). In this case,

however, Florida proposed something novel: It sought to confer, through the Section 7

mechanism, broad ESA liability protection on all future state permittees for incidental take

resulting from state-issued dredge and fill permits. Under the approach that Florida proposed,

the EPA would engage in Section 7 consultation with the FWS at the outset. The agency action

under review would be the EPA’s approval of Florida’s assumption application, and the FWS

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would issue a “programmatic” BiOp finding no jeopardy followed by a “programmatic” ITS that

would protect all future state Section 404 permittees.

As Florida explained during the administrative process, “where a state administers the

Section 404 program, permittees” who cannot “avoid entirely adverse impacts to listed species”

must “seek an incidental take permit under ESA Section 10,” Dkt. 112-2 at 3, or, as in New

Jersey, the EPA can federalize those applications likely to adversely affect listed species, thereby

triggering Section 7 consultation, Dkt. 112-3 at 369. But because those paths to ESA liability

protection were, in Florida’s view, “burdensome,” “time consuming[,] and resource-intensive,”

Dkt. 112-2 at 3–4, the State suggested a third option: a one-time Section 7 programmatic

consultation in connection with the EPA’s review of Florida’s assumption application, thus

allowing the FWS to issue a programmatic BiOp and a programmatic ITS, which would provide

Florida permittees with liability protection under the ESA for all future permits issued under the

state program—without requiring future Section 7 or Section 10 consultation.

This, then, brings the Court to the crux of the current dispute. In Plaintiffs’ view, the

EPA and the FWS failed in this programmatic effort because neither the programmatic BiOp nor

the programmatic ITS satisfies the demanding standards set by the ESA. Neither, in their view,

includes the ESA-mandated species-specific analysis, effects analysis, numerical quantification

of take, and related statutory and regulatory requirements. In short, neither document wrestles

with the core ESA considerations or includes the fundamental ESA safeguards.

Defendants respond that, even if the programmatic BiOp and programmatic ITS lack

these ESA-mandated elements, the FWS (and the EPA) permissibly deferred the relevant

considerations to a “technical assistance process” involving Florida, the FWS, and the EPA.

That technical assistance process, in their view, promises to address all of the ESA requirements

5
down the road, on a permit-by-permit basis—and they contend (over Plaintiffs’ dissent) that the

technical assistance process has successfully done so to date. Under this process, Florida is

required to consult with the FWS regarding each permit application, the FWS is provided the

“opportunity” to specify take limits, and the State is required to include those limits, if supplied,

in its state-issued permits. In Defendants’ view, this alternative process was not only justified,

but necessary, because it would have been too difficult to conduct the required species-specific

analyses, to quantify take, and to address similar concerns at the programmatic level given the

scope of the agency action at issue.

To this, Plaintiffs reply: If the FWS lacked the time, information, or ability to make the

assessments and to set the limits required by the ESA and its implementing regulations, the FWS

acted beyond its authority in purporting to make a no jeopardy finding and in conferring blanket

ESA immunity on all future Florida Section 404 permittees. The difficulty in their view,

moreover, was not merely a product of the rush to finish the BiOp and ITS in the waning days of

the last administration but, more fundamentally, was a product of the fact that the BiOp and ITS

seek to attain an unlawful goal—that is, take liability protection premised on something other

than the rigors of Section 7 or Section 10 of the ESA.

Now before the Court are the parties’ cross-motions for summary judgment, Dkt. 98; Dkt.

99; Dkt. 101; Dkt. 102, and the Center for Biological Diversity (“CBD”) and Sierra Club’s

motion for a temporary restraining order and preliminary injunction, Dkt 135. CBD and the

Sierra Club’s motion seeks to enjoin Florida from issuing Section 404 permits for two

developments, which they contend pose an imminent threat to the critically endangered Florida

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panther and the threatened crested caracara, a rare bird of prey similar to a falcon. 1 On October

19, 2023, the Court heard oral argument on the parties’ cross-motions for summary judgment

and, on January 30, 2024, the Court heard oral argument on CBD and the Sierra Club’s motion

for a preliminary injunction. In addition to the administrative record, the parties, intervenors,

and amici have submitted many hundreds of pages of briefs and exhibits.

For the following reasons, the Court will GRANT Plaintiffs’ motion for partial summary

judgment with respect to Counts 3, 4, 6, 10–13 of the Third Amended Complaint, Dkt. 77, and

will DENY the Federal Defendants’ and Florida’s cross-motions with respect to those Counts.

In short, the Court is persuaded that the FWS’s programmatic BiOp and ITS fail to satisfy the

requirements of the ESA, and the Court is unpersuaded that the non-statutory technical assistance

process is a lawful substitute for the procedures and remedies that Congress enacted in the ESA

and that the Services established in the implementing regulations. The Court previously

dismissed Counts 8 and 9 and, at least for now, defers addressing Counts 1, 2, 5, and 7 of the

Amended Complaint. Because the Court grants substantive relief on the merits of Plaintiffs’

ESA-related claims, the Court will DENY as moot CBD and the Sierra Club’s motion for a

temporary restraining order and preliminary injunction, Dkt. 135, on the ground that the relief

granted on summary judgment will address the risk of imminent harm raised in that motion.

I. BACKGROUND

This is the Court’s third opinion addressing the merits of this case—and probably not the

last. In the Court’s first merits decision, it rejected Florida’s threshold challenge to Plaintiffs’

standing to bring this action; rejected Defendants’ contention that the EPA’s decision to grant

1
The Court granted both developers—Tarpon Blue Silver King I, LLC and Cameratta
Companies LLC—leave to intervene for the limited purpose of opposing this motion. See Dkt.
145; Dkt. 146; Min. Order (Jan. 24, 2024).
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Florida’s assumption application was an adjudication, rather than a rulemaking; granted

Defendants’ motions for summary judgment with respect to Count Nine, which challenged

EPA’s failure to codify Florida’s Section 404 program; and denied without prejudice

Defendants’ motions for summary judgment with respect to Count Eight, which challenged the

EPA’s decision to give immediate effect to its decision, on the ground that the Court required

further briefing to determine whether that claim was redressable. CBD I, 597 F. Supp. 3d at179–

80. The second opinion picked up where the first left off and further considered whether the

EPA’s failure to provide 30 days’ notice before its assumption decision took effect was

redressable—or whether that action constituted “a bell that cannot be unrung.” Ctr. for

Biological Diversity v. Regan, ___ F. Supp. 3d ___, 2023 WL 5437496, *4 (D.D.C. Aug. 23,

2023) (“CBD II”). Concluding that it lacked authority to remedy the alleged wrong, the Court

granted the Federal Defendants’ renewed motion for summary judgment and Florida’s renewed

motion to dismiss with respect to Count Eight for lack of jurisdiction. Id. at *10.

Having rejected Plaintiffs’ procedural objections under the APA, the Court now turns to

the question whether the FWS and the EPA violated the ESA in approving Florida’s assumption

application. Central to that question are the “programmatic” BiOp and “programmatic” ITS

issued by the FWS—both lack, among other things, required species-specific analyses and take

limits, and they purport to confer ESA liability protection on, among others, future Florida

Section 404 permittees without complying with the dictates of Section 7 or Section 10 of the

ESA.

A. Statutory and Regulatory Landscape

1. The Endangered Species Act

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Almost fifty years ago, Congress enacted the Endangered Species Act “to provide a

means whereby the ecosystems upon which endangered species and threatened species depend

may be conserved” and “to provide a program for the conservation of such endangered species

and threatened species.” 16 U.S.C. § 1531(b). With that legislation, Congress made a

“conscious decision . . . to give endangered species priority over the ‘primary missions’ of

federal agencies,” TVA, 437 U.S. at 185, and to afford “endangered species the highest of

priorities,” id. at 194. The ESA is “the most comprehensive legislation for the preservation of

endangered species ever enacted by any nation.” Id. at 180.

Under the ESA, a species may be listed as either “endangered” or “threatened.” See 16

U.S.C. § 1533. An endangered species is “any species which is in danger of extinction

throughout all or a significant portion of its range.” Id. § 1532(6). A threatened species is “any

species which is likely to become an endangered species within the foreseeable future throughout

all or a significant portion of its range.” Id. § 1532(20). The ESA is administered by two federal

agencies: the FWS and the NMFS. 50 C.F.R. § 402.01(b). The FWS administers the statute

with respect to species under the jurisdiction of the Secretary of the Interior, while the NMFS

does so with respect to species under the jurisdiction of the Secretary of Commerce. Nat’l Ass’n

of Home Builders, 551 U.S. at 651.

Section 9 of the ESA prohibits any person, including private parties, States, and federal

agencies, from “taking” a protected species. 16 U.S.C. § 1538(a)(1)(B). “Take” means “to

harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in

any such conduct.” Id. § 1532(19). “Harm in the definition of ‘take’ in the Act means an act

which actually kills or injures wildlife. Such act may include significant habitat modification or

9
degradation where it actually kills or injures wildlife by significantly impairing essential

behavioral patterns, including breeding, feeding, or sheltering.” 50 C.F.R. § 17.3.

To enforce Section 9’s prohibition on take, the Secretary of the Interior or the Secretary

of Commerce (collectively, the “Secretary”) may assess civil penalties against alleged violators

through administrative, trial-like proceedings. See 16 U.S.C. § 1540(a)(1)–(2). The ESA also

authorizes the imposition of criminal penalties on those who knowingly violate the Act, a permit

issued under the Act, or certain regulations, id. § 1540(b), and it authorizes the Attorney General

to bring civil actions for injunctive relief, id. § 1540(e)(6). Finally, the ESA authorizes citizen

suits, which allow private parties to bring suit in federal district court to enforce the substantive

provisions of the ESA and its implementing regulations against regulated parties, 16 U.S.C.

§ 1540(g)(1)(A); see Bennett v. Spear, 520 U.S. 154, 173–74 (1997), or to compel the Secretary

to apply the prohibition on the taking of listed species in any State, 16 U.S.C. § 1540(g)(1)(B).

Recognizing that some take can occur as a result of otherwise lawful activities, Congress

created two paths to ensure that “incidental take” does not jeopardize protected species or

adversely modify or destroy critical habitat: The first path, under Section 7, applies to federal

agency actions, id. § 1536; and the second, under Section 10, applies to non-federal actions, id.

§ 1538. Both mechanisms offer the promise of liability protection for incidental take if, but only

if, those involved abide by the specific measures and standards specified by Congress and the

Services. See id. § 1536(o)(2); id. § 1539(a); 50 C.F.R. § 402.14(i)(5).

2. Section 7 and Formal Consultation

“Section 7 of the ESA prescribes the steps that federal agencies must take to ensure that

their actions do not jeopardize endangered wildlife and flora.” Nat’l Ass’n of Home Builders,

551 U.S. at 652; see 16 U.S.C. § 1536. An action “jeopardize[s] the continued existence of” a

10
species if it “reasonably would be expected, directly or indirectly, to reduce appreciably the

likelihood of both the survival and recovery of a listed species in the wild by reducing the

reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02. Section 7 applies

only to “actions in which there is discretionary Federal involvement or control,” Id. § 402.03,

however, because if a statute mandates that an agency act in a specified manner, the consultation

process would “override” that statutory mandate “by subjecting such [agency] action to the

further condition that it pose no jeopardy to endangered species,” Nat’l Ass’n of Home Builders,

551 U.S. at 664. That conclusion applies, moreover, even when the statutory mandate “is not

entirely mechanical”—that is, even when “it involves some exercise of judgment” on the

agency’s part “as to whether” the statutory criteria have been met—because, even then, the

statute “does not grant [the agency] discretion to add another entirely separate prerequisite to

[the] list” of relevant criteria, namely consideration of “the protection of threatened and

endangered species as an end in itself.” Id. at 671.

Under Section 7(a)(2), “[e]ach Federal agency shall, in consultation with and with the

assistance of [Service], insure that any action authorized, funded, or carried out by such

agency . . . is not likely to jeopardize the continued existence of any endangered species or

threatened species or result in the destruction or adverse modification of habitat of such species.”

16 U.S.C. § 1536(a)(2). To achieve that end, “[e]ach Federal agency shall review its actions at

the earliest possible time to determine whether any action may affect listed species or critical

habitat.” 50 C.F.R. § 402.14(a). If the action agency determines—and the consulting agency

concurs—that “the proposed action is not likely to adversely affect any listed species or critical

habitat,” then no formal consultation is required. Id. § 402.14(b)(1). But if a federal agency

11
concludes after an initial review that its action “may affect listed species or critical habitat,” that

agency must engage in “consultation” with the Service. Id. § 402.14(a).

The agency that proposes to act in a manner that might affect listed species or critical

habitat is referred to as the “action agency,” while either the FWS and/or the NMFS serves at the

“consulting agency.” See Oceana, Inc. v. Pritzker, 75 F. Supp. 3d 469, 474 n.3 (D.D.C. 2014).

In this case, the EPA was the “action agency,” the FWS was the “consulting agency” (although,

in Plaintiffs’ view, the EPA should have also engaged in formal consultation with the NMFS),

and the agency action subject to consultation was the EPA’s approval of Florida’s assumption

application.

“Broadly speaking, the object of consultation under the statute is for the [consulting]

agency to determine whether the project will violate [Section 7’s] prohibition on jeopardizing the

continued existence of endangered and threatened species.” Ctr. for Biological Diversity v. Ross,

2020 WL 1809465, at *2 (D.D.C. Apr. 9, 2020). At the conclusion of the Section 7 consultation

process, the consulting agency must issue a biological opinion—that is, a BiOp—“setting forth

[its] opinion, and a summary of the information on which the opinion is based, detailing how the

agency action affects the species or its critical habitat.” 16 U.S.C. § 1536(b)(3)(A); see also 50

C.F.R. § 402.14(h).

The Biological Opinion

The consulting agency’s BiOp must “detail[] how the agency action affects the species or

its critical habitat.” 16 U.S.C § 1536(b)(3)(A). To prepare the required BiOp, the consulting

agency must:

(1) Review all relevant information provided by the [action] agency or
otherwise available. Such review may include an on-site inspection of
the action area with representatives of the [action] agency and the
applicant.

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(2) Evaluate the current status and environmental baseline of the listed
species or critical habitat.

(3) Evaluate the effects of the action and cumulative effects on the listed
species or critical habitat.

(4) Add the effects of the action and cumulative effects to the environmental
baseline and in light of the status of the species and critical habitat,
formulate the Service’s opinion as to whether the action is likely to
jeopardize the continued existence of listed species or result in the
destruction or adverse modification of critical habitat[,] [and]
...

(7) Formulate a statement concerning incidental take, if such take is
reasonably certain to occur.

50 C.F.R. § 402.14(g). “In formulating its [a] biological opinion, [b] any reasonable and prudent

alternatives, and [c] any reasonable and prudent measures, the Service” is required to “use the

best scientific and commercial data available.” Id. § 402.14(g)(8); see also 16 U.S.C.

§ 1536(a)(2) (“In fulfilling the requirements of this paragraph each agency shall use the best

scientific and commercial data available.”).

Establishing the “environmental baseline of the listed species or critical habitat” is a

substantial undertaking. The “environmental baseline” is “the condition of the listed

species . . . without the consequences to the listed species . . . caused by the proposed action.” 50

C.F.R. § 402.02. It includes (a) “the past and present impacts of all Federal, State, or private

actions and other human activities in the action area;” (b) “the anticipated impacts of all

proposed Federal projects in the action area that have already undergone formal or early section

7 consultation;” and (c) “the impact of State or private actions which are contemporaneous with

the consultation in process.” Id. The environmental baseline considers “[t]he consequences to

listed species or designated critical habitat from ongoing agency activities or existing agency

facilities that are not within the agency’s discretion to modify.” Id.

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The consulting agency must then “[e]valuate the effects of the action and cumulative

effects on the listed species.” Id. § 402.14(g)(3). The “effects of the action” include “all

consequences to listed species . . . that are caused by the proposed action, including the

consequences of other activities that are caused by the proposed action.” Id. § 402.02. A

consequence is “caused by” the proposed action if (a) “it would not occur but for the proposed

action” and (b) “it is reasonably certain to occur.” Id. “Effects of the action may occur later in

time and may include consequences occurring outside the immediate area involved in the

action.” Id. “Cumulative effects” on the listed species, by contrast, are “those effects of future

State or private activities, not involving Federal activities, that are reasonably certain to occur

within the action area of the Federal action subject to consultation.” Id. (emphasis added).

It is only after engaging in this detailed analysis that the consulting agency can “[a]dd the

effects of the action and cumulative effects to the environmental baseline and in light of the

status of the species and critical habitat, formulate [its] opinion as to whether the action is likely

to jeopardize the continued existence of listed species.” Id. § 402.14(g)(4). With that analysis

complete, the consulting agency must then offer its “opinion on whether the action” will violate

Section 7, i.e., will cause jeopardy to a listed species or result in destruction or adverse

modification of a critical habitat. Id. § 402.14(h)(1); see also 16 U.S.C. § 1536(a)(2).

In sum, a BiOp (a) must use the best scientific data available, (b) must determine the

environmental baseline of the listed species or critical habitat, (c) must evaluate the effects of the

action and cumulative effects on the listed species or critical habitat, and (d) must add that

baseline to the effects of the action and cumulative effects on the listed species or critical habitat

(in light of the status of the species and critical habitat), 50 C.F.R. § 402.14(g), and (e) must then

use this data and analysis to determine whether the action at issue is “[l]ikely to jeopardize the

14
continued existence of a listed species or result in the destruction or adverse modification of

critical habitat,” which is referred to as “a ‘jeopardy’ biological opinion,” or is “[n]ot likely to

jeopardize the continued existence of a listed species or result in the destruction or adverse

modification of critical habitat,” which is referred to as “a ‘no jeopardy’ biological opinion,” id.

§ 402.14(h)(1)(iv).

In the event of a “jeopardy biological opinion,” the consulting agency “shall suggest

those reasonable and prudent alternatives which [it] believes would not violate [Section 7(a)(2)]

and can be taken by [the action agency].” 16 U.S.C. § 1536(b)(3)(A); see also 50 C.F.R.

§ 402.14(h)(3), (g)(5). “Following the issuance of a ‘jeopardy’ opinion, the [action] agency must

either terminate the action, implement the proposed alternative, or seek an exemption from the

Cabinet-level Endangered Species Committee pursuant to 16 U.S.C. § 1536(e).” Nat’l Ass’n of

Home Builders, 551 U.S. at 652.

The Incidental Take Statement

In the event of a “no jeopardy biological opinion,” the consulting agency must provide an

incidental take statement, 16 U.S.C. § 136(b)(4); 50 C.F.R. § 402.14(i), if it concludes that take

is “reasonably certain to occur,” 50 C.F.R. § 402.14(g)(7); Shafer & Freeman Lakes Env’t

Conservation Corp, 992 F.3d at 1080. “Incidental take” refers “to takings that result from, but

are not the purpose of, carrying out an otherwise lawful activity conducted by the Federal agency

or applicant.” 50 C.F.R. § 402.02. The ESA requires that the ITS:

(i) specif[y] the impact of such incidental taking on the species,

(ii) specif[y] those reasonable and prudent measures that the Secretary
considers necessary or appropriate to minimize such impact,

(iii) in the case of marine mammals, specif[y] those measures that are
necessary to comply with section 1371(a)(5) of this title with regard to
such taking, and

15
(iv) set[] forth the terms and conditions (including, but not limited to,
reporting requirements) that must be complied with by the Federal
agency or applicant (if any), or both, to implement the measures
specified under clauses (ii) and (iii).

16 U.S.C.A. § 1536(4).

The governing regulations define “the impact” of the incidental take to mean “the

amount or extent[] of such incidental taking on the species.” 50 C.F.R. § 402.14(i)(1)(i). If

necessary, the consulting agency may use a “surrogate (e.g., similarly affected species or habitat

or ecological conditions) . . . to express the amount or extent of anticipated take,” but only if the

BiOp or ITS “[d]escribe[s] the causal link between the surrogate and take of the listed species,

explains why it is not practical to express the amount or extent of anticipated take . . . and sets a

clear standard for determining when the level of anticipated take has been exceeded.” Id. The

regulations also require monitoring of incidental take and provide that “the Federal agency or

any applicant must report the progress of the action and its impact on the species to the [FWS or

NMFS] as specified in the incidental take statement.” Id. § 402.14(i)(3). Most significantly, the

action agency and consulting agency “must reinitiate consultation immediately” if the “amount or

extent of incidental taking” specified in the ITS, as required by the regulations, “is exceeded.”

Id. § 402.14(i)(4) (emphasis added); id. § 402.16(a). Finally, as discussed more fully below,

“any taking that is in compliance with the terms and conditions specified” in an ITS “shall not be

considered to be a prohibited taking of the species concerned.” 16 U.S.C. § 1563(o)(2).

Framework Programmatic Action

The Services have jointly issued a “Consultation Handbook,” which defines

programmatic consultation as a “consultation addressing an agency’s multiple actions on a

16
program, regional or other basis.” Dkt. 112-1 at 195 (ESA Section 7 Consultation Handbook). 2

The ESA’s implementing regulations further explain that “[f]or a framework programmatic

action, an incidental take statement is not required at the programmatic level.” 50 C.F.R.

§ 402.14(i)(6). This is because “any incidental take resulting from any action subsequently

authorized, funded, or carried out under the program will be addressed in subsequent section 7

consultation, as appropriate.” Id. “For a mixed programmatic action, an incidental take

statement is required at the programmatic level only for those program actions that are

reasonably certain to cause take and are not subject to further section 7 consultation.” Id.

(emphasis added).

The regulations define a “[f]ramework programmatic action” to mean “a Federal action

that approves a framework for the development of future action(s) that are authorized, funded, or

carried out at a later time,” where “any take of a listed species would not occur unless and until

those future action(s) are authorized, funded, or carried out and subject to further section 7

consultation.” Id. § 402.02. Similarly, a “[m]ixed programmatic action” is defined to mean “a

Federal action that approves action(s) that will not be subject to further section 7 consultation,

and also approves a framework for the development of future action(s) that” will be “authorized,

funded, or carried out at a later time” and that will be “subject to further section 7 consultation.”

Id. In short, the regulations recognize that certain framework programmatic actions might not be

ripe for meaningful Section 7 consultation at the outset and thus permit the required consultation

to occur in stages, as the future federal actions are authorized, funded, or carried out.

2
The Federal Defendants argue that the “Services’ views in the Consultation Handbook are
entitled to deference.” Dkt. 99 at 22 n.7 (citing Miccosukee Tribe of Indians v. United States,
566 F.3d 1257, 1273 (11th Cir. 2009)).
17
Section 7 Liability Protection

Section 9 of the ESA provides that “it is unlawful for any person subject to the

jurisdiction of the United States to . . . take any [listed endangered species] within the United

States or the territorial sea of the United States,” 16 U.S.C. § 1538(a)(1)(B), and this prohibition,

in turn, triggers potential civil or criminal liability under Section 11 of the Act, id. § 1540.

Section 7, however, provides an escape hatch for “any taking that is in compliance with the terms

and conditions specified” in an ITS. 16 U.S.C. § 1536(o)(2); see also 50 C.F.R. § 402.14(i)(5);

Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 36 (D.C. Cir. 2015). Importantly,

compliance with the terms and conditions specified in an ITS provides take liability protection

not just to the federal agency and applicant, but to any party who “engage[s] in incidental takes

consistent with the statement without applying for section 10 permits.” Ramsey v. Kantor, 96

F.3d 434, 437 (9th Cir. 1996).

The ITS thus acts as both a safe harbor and as a check. Private entities and individuals

(as well as government officers and employees) can avoid Section 9 liability for take in

compliance with the terms and conditions of an applicable ITS—but, as soon as the take limit

specified in the ITS is exceeded, the action and consulting agencies must “immediately”

reinitiate consultation, 50 C.F.R. § 402.14(i)(4), thereby allowing the Service to reassess whether

its original “no jeopardy” determination still holds in light of the unanticipated take and, if not,

whether additional limitations and conditions are necessary to protect the species.

3. Section 10 and Incidental Take Permits

Not all acts that result in incidental take involve a federal agency action, and thus not all

such acts fall within the scope of the Section 7 consultation process. For non-federal action,

Section 10 of the ESA authorizes the Services to issue permits, “under such terms and conditions

18
as [the Service] shall prescribe,” that allow “any taking otherwise prohibited by” Section 9, but

only “if such taking is incidental to, and not the purposes of, the carrying out of an otherwise

lawful activity.” 16 U.S.C. § 1539(a)(1)(B). As with Section 7 consultation, however, Congress

mandated robust analyses and standards that the Services must satisfy before permitting

incidental take pursuant to Section 10. See id. § 1539(a).

To obtain a Section 10 permit, the applicant must submit a conservation plan, known as a

“Habitat Conservation Plan” or “HCP,” that describes:

(i) the impact which will likely result from such taking;

(ii) what steps the applicant will take to minimize and mitigate such impacts,
and the funding that will be available to implement such steps;

(iii) what alternative actions to such taking the applicant considered and the
reasons why such alternatives are not being utilized; and

(iv) such other measures that the [Service] may require as being necessary or
appropriate for purposes of the plan.

Id. § 1539(a)(2)(A). The Service must publish notice of the permit application in the Federal

Register, and “[i]nformation received by the [Service] as part of [the] application shall be

available to the public as a matter of public record at every stage of the proceeding.” Id.

§ 1539(c). The Service must also provide an “opportunity for public comment” on the

application and related conservation plan. Id. § 1539(a)(2)(B). Finally, before issuing the

permit, the Service must make certain findings, including findings that the taking will be

incidental, that it “will not appreciably reduce the likelihood of the survival and recovery of the

species in the wild,” and that “the applicant will, to the maximum extent practicable, minimize

and mitigate the impacts of such taking.” Id.

Section 10 requires all incidental take permits to include “such terms and conditions as

the [Service] deems necessary or appropriate” and directs that the Service “shall revoke a

19
permit . . . if he finds that the permittee is not complying with the terms and conditions of the

permit.” Id. § 1539(a)(2)(B)–(C) (emphasis added).

B. Administrative Background

Under Section 404 of the Clean Water Act, the Army Corps of Engineers is authorized to

issue permits, “after notice and opportunity for public hearings[,] for the discharge of dredged or

fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a); see also

id. § 1344(d) (“The term ‘Secretary’ as used in this section means the Secretary of the Army,

acting through the Chief of Engineers.”). When Congress enacted the CWA, however, it

“expressed its desire ‘to recognize, preserve, and protect the primary responsibilities and rights

of States to prevent, reduce, and eliminate pollution,’” and it thus established a process to allow

States to implement the Section 404 permit program on their own, “so long as the EPA first gives

them permission to do so.” CBD I, 539 F. Supp.3d at 139 (quoting 33 U.S.C. § 1251(a)). To

apply, a State must submit an application to the EPA containing “a full and complete description

of the program it proposes to establish and administer under State law” and “a statement from the

attorney general” affirming that “the laws of such State . . . provide adequate authority to carry

out the described program.” 33 U.S.C. § 1344(g)(1). After determining that the State’s

“submission is complete,” 40 C.F.R. § 233.15(a), the EPA must publish the application in the

Federal Register for public comment and must provide copies of the application to the Corps, the

FWS, and the NMFS for comment, id. § 233.15(d)–(f); see also 33 U.S.C. § 1344(g). Then,

“[w]ithin 120 days of receipt of a complete program submission (unless an extension is agreed to

by the State), the Regional Administrator [of the EPA] shall approve or disapprove the program

based on whether the State’s program fulfills the requirements of [the governing regulations] and

20
the [CWA], taking into consideration all comments received.” 40 C.F.R. § 233.15(g); see also

33 U.S.C. § 1344(h)(1).

After the EPA has transferred permitting authority to a State, the agency continues to

oversee that State’s permitting program. The State must transmit copies of each permit

application to the EPA; the EPA must then provide copies of each permit application to the FWS

and the NMFS; the EPA may also “provide written comments to such State with respect to such

permit application” within 90 days; and, if the EPA objects to the issuance of the permit, the

State may not issue the permit “unless it modifies [the] proposed permit in accordance with [the

agency’s] comments.” 33 U.S.C. § 1344(j). “In the event that the [State] neither satisfies EPA’s

objections or requirement for a permit condition nor denies the permit, the Secretary [of the

Army] shall process the permit application.” 40 C.F.R. § 233.50(j); see also id. § 233.2; id.

§ 233.1(a). In other words, permitting authority power reverts to the Corps for that particular

permit. To facilitate this ongoing oversight, an EPA regulation requires participating States to

enter into a Memorandum of Agreement (“MOA”) with the EPA that “set[s] out the State and

Federal responsibilities for program administration and enforcement” and that specifies the

“classes and categories of permit applications for which EPA will waive Federal review.” 40

C.F.R. § 233.13(b), (b)(1). Finally, if the EPA determines “after public hearing that a State is not

administering” its Section 404 program “in accordance with” the requirements of the CWA, and

if the State does not take “appropriate corrective action . . . within a reasonable time,” the EPA

“shall . . . withdraw approval of such program until [it] determines” that the State has taken the

required “corrective action.” 33 U.S.C. § 1344(i). During any period of withdrawal, the Corps

“shall resume” administration and enforcement of the Section 404 program in the relevant

jurisdiction. Id.

21
On August 18, 2020, the State of Florida submitted to the EPA an application to

administer the Section 404 permitting program within its borders, and, just two days later, the

EPA determined that the application was complete, thus triggering the 120-day review period.

See CBD I, 597 F. Supp. 3d at 182; see also 33 U.S.C. § 1344(h)(3). Roughly four months later,

in December 2020, the EPA published a notice in the Federal Register approving Florida’s

application, making it the first State to assume Section 404 authority in nearly thirty years. CBD

I, 597 F. Supp. 3d at 183. Other than Florida, just two other states, New Jersey in 1994 and

Michigan in 1984, have assumed Section 404 permitting authority. Id. at 182 (citing 40 C.F.R.

§ 233.70 (Michigan); 40 C.F.R. § 233.71 (New Jersey)).

Notably, the EPA did not engage in formal Section 7 consultation before approving either

prior application. See Dkt. 104 at 63 n.35. When New Jersey applied to assume Section 404

permitting authority, the EPA undertook only informal Section 7 consultation. 3 Formal

3
As explained further below, at that time, the EPA’s view was that its approval of a Section 404
assumption application was discretionary and therefore subject to Section 7 of the ESA. Cf. Dkt.
112-3 at 373–74. The EPA changed its view following the Supreme Court’s decision in National
Association of Homebuilders v. Defenders of Wildlife, 551 U.S. 644 (2007), see Dkt. 112-3 at
373, and then subsequently reversed position again at Florida’s urging, see Dkt. 56-1 at 775
(ESA Consultation Memo). Because Plaintiffs and Defendants agree that the EPA’s approval of
a State’s Section 404 assumption application is discretionary and, accordingly, that it triggers the
Section 7 consultation process, the Court need not—and does not—express a view on that
question.

The Court notes, however, that the EPA premised its most recent view—that its approval of a
State’s 404 assumption application is discretionary and thus triggers Section 7 consultation—on
the fact that the EPA is required “to consider the Services’ comments before deciding to approve
an assumption request, and [the requirement that] states . . . comply with the CWA Section
404(b)(1) Guidelines when issuing permits under an assumed program.” Dkt. 56-1 at 779. The
first of these premises, however, is in significant tension with the Federal Defendants’ recent
assertion that its decision to grant Florida’s assumption application was not “based on its review
of . . . the BiOp.” Dkt. 158 at 6. Nor is it clear that the second of these premises shows that
approving a State’s Section 404 assumption application is “discretionary” under the reasoning of
National Association of Homebuilders. There, the Supreme Court explained that the relevant

22
consultation was not required because the EPA determined, during informal consultation, that its

approval of New Jersey’s assumption application would not adversely affect any species. See 50

C.F.R. § 402.14(b)(1) (“A federal agency need not initiate formal consultation if . . . the Federal

agency determines, with the written concurrence of the Director, that the proposed action is not

likely to adversely affect any listed species or critical habitat.”). In particular, because the State

had agreed to “federalize”—that is, pass to the FWS and NMFS for review—any permits that

might affect protected species, Dkt. 112-3 at 369; see also Dkt. 112-5 at 149, 152–54 (New

Jersey MOA describing the process for federalizing permits), and because the State had agreed

that, when the “[c]oordination process under the MOA” failed to eliminate adverse effects to

listed species, it would ensure that it or the permit applicant would “seek authorization for []

incidental take” under Section 10, Dkt. 112-5 at 160, the assumption of Section 404 permitting

authority would have no effect on any species. Because neither the FWS nor the NMFS

prepared a BiOp or ITS, New Jersey permit applicants did not receive federal incidental take

liability protection under Section 7 as part of New Jersey’s assumption. To the contrary, the

governing MOA states: “Nothing in this MOA authorizes any take of federally listed threatened

question is whether, as a matter of statutory interpretation, formal consultation would “override”
the statutory text by “subjecting” the relevant agency action (here, the EPA’s approval of a state
Section 404 assumption application) to the “further condition that it pose no jeopardy to
endangered species.” 551 U.S. at 664.

Here, the EPA says that the statutory text effectively includes a no-jeopardy condition because
Section 404 requires the EPA “to determine whether [the] [S]tate [submitting the application] . . .
has the authority to issue permits which,” among other things, prohibit the issuance of any permit
that could “jeopardize the continued existence of” a listed species. Dkt. 56-1 at 778 (citing 40
C.F.R. § 230.10(b)(3)). The question whether a State has adequate authority to ensure that no
state-issued permit causes jeopardy, however, at least arguably differs from the question whether
the federal action—here, the approval of the assumption application—is likely to jeopardize a
listed species.
23
or endangered spec[ies].” Dkt. 112-5 at 157 (New Jersey MOA). Thus, any take liability

protection would flow from either Section 7 (through a federalized permit) or Section 10.

Although the record is less revealing with respect to Michigan, all agree that it also

assumed Section 404 permitting authority without the EPA engaging in Section 7 consultation

and, accordingly, without the benefit of Section 7 liability protection for future, Michigan

permittees. According to the Plaintiffs, this is because Michigan entered into a cooperative

agreement with the Services pursuant to Section 6 of the ESA. See 16 U.S.C. 1535. For present

purposes, however, the Court need not go beyond what is disclosed by the administrative record

and the parties’ agreement—that is, that Florida is the first State to seek protection for the State

and future Section 404 permittees based on a programmatic BiOp and ITS issued pursuant to

Section 7 of the ESA. See, e.g., Dkt. 156 at 7, 87 (Oct. 19, 2023 Hrg. Tr.).

In 2010—long after Michigan and New Jersey had assumed Section 404 permitting

authority—the EPA concluded in a letter memorandum that its decision whether to approve a

state application to assume Section 404 permitting authority constituted a non-discretionary

federal action and, accordingly, was not subject to Section 7 of the ESA. See Dkt. 112-3 at 375–

76 (2010 EPA ESA Consultation Position Memo). The EPA explained that, based on its reading

of the Supreme Court’s decision in National Association of Home Builders v. Defenders of

Wildlife, 551 U.S. 644 (2007), the decision to transfer Section 404 authority to a State is non-

discretionary because once a State satisfies the statutory criteria, the EPA must approve the

State’s application. Dkt. 112-3 at 375 (2010 EPA ESA Consultation Position Memo). Indeed, if

the EPA does not act on a complete application within 120 days, the “program shall be deemed

approved.” 33 U.S.C. § 1344(h)(3).

24
To achieve a “streamlined” process for Section 404 permittees to receive liability

protection for incidental take, Florida asked the EPA to reconsider its 2010 conclusion that the

Section 404 assumption process was non-discretionary under National Association of Home

Builders and to conclude that the assumption process requires Section 7 consultation and can,

accordingly, yield programmatic ESA liability protection. See, e.g., Dkt. 112-2 at 3 (Florida

white paper “Streamlined Approach to Address Endangered Species Act Incidental Take

Coverage”); Dkt. 112-3 at 344 (“Potential Endangered Species Act Compromise”). Florida

argued that the EPA’s 2010 analysis “resulted from a rushed review, ignored the actual text and

legislative history of Section 404, and misapplied Supreme Court precedent” in National

Association of Home Builders, which had considered Section 402, not Section 404, of the CWA.

Dkt. 112-2 at 4. Florida further argued that the ESA is “at least ambiguous” and that, as a result,

if the EPA agreed to change its position, it would “likely receive deference under Chevron

U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).” Id. at 11 (emphasis in

original).

Building on this argument, Florida proposed that the EPA engage in a “one time”

“programmatic consultation” under Section 7 “in connection with [the] EPA’s initial review of a

state [Section 404 assumption] application.” Id. at 3, 11. According to Florida’s submission:

This would allow the Services to issue a programmatic Biological Opinion
(‘BiOp’) and a programmatic incidental take statement (‘ITS’), which would
identify procedural requirements for state permitting under Section 404 . . . .
Provided these requirements are followed, the programmatic ITS would bring
state Section 404 permits within the Section 7(o)(2) exemption from take
liability.

Id. at 4. By taking this approach, the State posited, the EPA and Service could “provide project

applicants the needed liability protection from claims arising under the ESA even though the

activity is authorized pursuant to a state permit.” Dkt. 112-3 at 345. To support its contention

25
that the EPA and the Services have the authority to issue programmatic BiOps and programmatic

ITSs, which defer species-specific analyses and take limitations to a “technical assistance

process,” Dkt. 112-2 at 11–14, Florida invoked the Second Circuit’s decision in Cooling Water

Intake Structure Coal. v. EPA, 905 F.3d 49, 76–77 (2d Cir. 2018). The State stressed that the

Second Circuit had upheld the use of a programmatic ITS in that case “despite its failure to

numerically quantify the impacts” of take. Dkt. 112-2 at 14.

Florida further argued that this programmatic approach was needed because, “thus far,

where a state administers the Section 404 program, permittees themselves must avoid entirely

adverse impacts to listed species or otherwise seek an incidental take permit under ESA Section

10 separate and apart from the Section 404 permit process, which can take years to complete in

contrast to the Section 7 process and is more burdensome for all involved.” Dkt. 112-2 at 3.

According to the State, around ten percent of the Section 404 permits in Florida would require

some form of incidental take coverage, including for “many large real estate, mining, agriculture,

and utility industry projects with significant economic benefits to the State.” Id. at 3. Moreover,

to “facilitate the process” that it had proposed, Florida volunteered to “develop [a biological]

assessment on [the] EPA’s behalf or in cooperation with [the] EPA.” Id. at 14 & n.25; see 50

C.F.R. § 402.08. A biological assessment (“BA”) is “information prepared by or under the

direction of” a federal agency to determine whether a proposed action may affect listed species.

50 C.F.R. § 402.02. The EPA later used that BA (or, in Plaintiffs’ words, “largely . . . cut and

paste[d] it,” Dkt. 98 at 31) to prepare its biological evaluation (“BE”), which it submitted to the

FWS to assist in evaluating “the possible effects of [its] potential approval of . . . Florida’s

assumption” application. Dkt. 112-4 at 89.

26
As the EPA acknowledged, there were other options available to protect state permittees

from incidental take liability under the ESA. It observed that state programs can (1) “completely

avoid[] impacts” to protected species; (2) “federaliz[e]” all state 404 permits that may impact

species, as occurs in New Jersey under its assumption program; or (3) require state permittees to

engage in Section 10 review. See Dkt. 112-3 at 368 (EPA response to comments). 4 On

December 12, 2019, however, the EPA agreed to Florida’s “request[] that the [EPA] initiate an

informal” ESA Section 7 consultation with the Services and “designate FDEP as the non-Federal

representative to conduct informal consultation.” Dkt. 112-4 at 2 (EPA letter to FDEP). The

EPA explained that it was voluntarily initiating informal consultation while it gave “further

consideration to [its] position” on whether consultation was required for approving a state 404

program. Id.; see also Dkt. 112-2 at 351 (EPA letter to NMFS).

As early as November 2019, the FDEP told the Corps that the EPA would treat its review

of the State’s application as a “discretionary” federal action, thereby requiring Section 7

consultation at the programmatic level, and that the State had hired a contractor to prepare a BA.

Dkt. 112-8 at 106 (Corps email). During a December 2019 meeting about Florida’s assumption

application, the FDEP further advised the Corps that the EPA would use that BA “to request

consultation and produce a programmatic B[i]O[p].” Id. at 107–09 (Corps email sending

meeting notes). Then, in February 2020, an FWS deputy field supervisor stated as follows in an

email:

4
At one point, the EPA expressed “institutional concerns regarding [Florida’s] initial proposal to
provide ESA Incidental Take authorization to permit applicants through the Section 7
consultation process.” Dkt. 112-3 at 344. In response, Florida suggested yet a different
approach under which the EPA would consult with the FWS on individual state 404 permits
based on the EPA’s oversight of state permits, id. at 344–45, essentially federalizing those
permits.
27
FYI—we had a good meeting yesterday with FWC, FDEP, EPA, and FDEP’s
consultants—GHD . . . . They went through the draft BA but I was not given a
copy. The draft BA follows the [Cooling Water] BE as expected. We provided
some suggestions like “be careful of using words like consultation when you
really mean coordination and technical assistance” . . . .

I’ve already started writing parts of the B[i]O[p] by adapting generic standard
language from the [Cooling Water] B[i]O[p] where appropriate.

Dkt. 112-5 at 170. On April 1, 2020, FWS staff described the plan as follows:

After assumption, FWS will not be issuing any project-by-project incidental take
statements for State 404 permits because the State 404 BiOp will have a
programmatic [ITS] that will cover any incidental take for any state 404 permit.
FWS will merely be providing technical assistance on the project by project
reviews to [F]DEP, [the Florida Fish and Wildlife Conservation Commission
(“FWC”)], and/or permit applicants and tracking on a project-by-project basis
any incidental take that is anticipated to occur as the result of [F]DEP issuing
any particular 404 permit.

Dkt. 112-4 at 9 (FWS email to FDEP and FWC staff). During that period, the EPA’s formal

position, remained that Section 7 did not apply to the agency’s approval of a Section 404

assumption application, because such approvals were non-discretionary.

That changed when, five months after the EPA had initiated informal consultation and

had designated the FDEP as its non-federal representative for consultation, it solicited public

comment on “whether EPA’s approval of a Clean Water Act Section 404 Program is non-

discretionary for purposes of Endangered Species Act Section 7 consultation.” Dkt. 112-2 at 367

(85 Fed. Reg. 99 at 30,953 (May 21, 2020)) (capitalization altered). The EPA expressly

referenced Florida’s white paper in its request for comment, seeking public comment on whether

it “should . . . adopt the position articulated in the FDEP white paper.” Dkt. 112-2 at 369. That

is, the EPA requested comment on the programmatic BiOp-plus-ITS model that Florida had

proposed.

28
On July 24, 2020, Florida submitted its completed BA to the EPA, “as the non-federal

representative” designated by the EPA “to prepare this BA.” See Dkt. 56-1 at 66, 68 (Florida

BA). That document explained that, “[b]ecause of the statewide nature of [the State’s

assumption application], the numerous covered species and diverse habitats, as well as lack of

knowledge with respect to where and what type of future permits may be requested, a

meaningful site-specific and species-specific analysis [was] not possible in th[e] BA.” Id. at 69.

Instead, the BA set out “to describe the regulatory process by which the State of Florida will

make determinations on the issuance of State 404 permits.” Id. Under that process, the FDEP

proposed to “send copies of all permit applications and its preliminary site-specific determination

of potential effects to listed species to the []FWS for review and comment,” to “consider any

information that the []FWS provides as technical assistance,” and to “include all species

protection measures that the []FWS may recommend as permit conditions or [to] deny the

request for a permit.” Id. at 70. The BA concluded that “[i]t is anticipated” that a programmatic

approach and technical assistance process “will result in procedural and substantive protections

that are at least as protective as the protections afforded by the [Corps] Section 404 program and

through section 7 consultation with the [Corps] under the ESA.” Id. at 179.

On August 20, 2020, the State submitted its Section 404 assumption application to the

EPA, and the EPA deemed the submission complete two days later. See CBD I, 597 F. Supp. 3d

at 182–83; Dkt. 112-4 at 85. A draft Memorandum of Understanding (“MOU”) was among the

materials the State submitted. Dkt. 55-1 at 120 (unexecuted application MOU). As that

document explained, “[u]pon assumption of the Section 404 Program, coordination between the

[]FWS and FDEP related to the proposed action’s effects on species will occur through the

technical assistance process, which is anticipated to be outlined in the []FWS’s biological

29
opinion based on information included in the biological assessment,” which Florida prepared,

and the EPA “submitted” to the FWS. Id. at 124 (emphasis added). The BiOp was not,

however, complete at that time and, therefore, was not included in Florida’s assumption

application.

A week later, on August 27, 2020, the EPA announced the reversal of its prior position

regarding the applicability of the Section 7 consultation process to the EPA’s consideration of

Section 404 assumption applications. Agreeing with Florida, the EPA concluded that the Section

7 process—including the issuance of a programmatic BiOp and ITS, and the extension of

“Section 9 liability protections to individual permits issued pursuant to the state . . . program”—

would apply. Dkt. 56-1 at 775, 778, 781 (ESA Consultation Memo). In its response to public

comments, the EPA stressed that neither federalizing permits nor Section 10 consultation was

“realistically feasible for states with an abundance of ESA listed species like Florida,” Dkt. 112-

3 at 368, and in its final decision, the EPA explained that the “streamlined permitting process”

that the programmatic BiOp and ITS would put in place “would reduce costs and duplication of

efforts by state . . . and federal authorities and facilitate more effective and efficient state . . .

CWA Section 404 programs.” 5 Dkt. 56-1 at 781. Later, the EPA wrote that “requiring Florida’s

permittees to seek an ESA Section 10 Incidental Take Permit, with the requirement to prepare a

Habitat Conservation Plan, would be extremely costly and take years to complete and therefore

is . . . not an option that Florida would pursue.” Dkt. 112-3 at 369.

5
Although several of the Plaintiffs in this case agreed with the EPA’s new view that approval of
a State’s assumption application was discretionary, thereby requiring Section 7 consultation, all
opposed the use of Section 7 in the programmatic manner advocated by Florida as unlawful
under the ESA. See Dkt. 56-1 at 785.
30
A few days later, on September 2, 2020, the EPA submitted a request for formal

consultation under Section 7(a)(2) to the FWS. Dkt. 112-4 at 85 (EPA letter). Enclosed with the

EPA’s letter to the FWS was the EPA’s Biological Evaluation. Id.; see also Dkt. 112-4 at 87

(EPA BE). The EPA stated that it was “requesting a programmatic consultation.” Id. at 85

(EPA letter) (emphasis added).

That same day, the EPA also sent a letter to the NMFS, but it did not request formal

Section 7 consultation from the NMFS. Dkt. 112-2 at 351 (EPA letter to the NMFS). Rather,

the EPA explained that, in its view, its decision whether to approve Florida’s assumption

application would have “no effect” on any species within the NMFS’s jurisdiction. Id. The next

day, the NMFS concurred with the EPA’s “no effect” determination. See Dkt. 112-2 at 352

(September 2020 NMFS letter to EPA).

On November 17, 2020, the FWS finalized its programmatic BiOp and programmatic

ITS. Dkt. 112-5 at 60 (BiOp); Dkt. 112-5 at 139 (ITS). The BiOp did not include any species-

specific analyses of the baseline status of species or effects of the EPA’s action; instead, it

explained that “[s]pecies-specific and site-specific analyses will occur during the technical

assistance process conducted between the []FWS and FDEP, and whenever EPA coordinates

with []FWS on State permit actions.” Dkt. 112-5 at 114 (BiOp). The BiOp further explained

that it was “not feasible, nor [wa]s it required” to detail or analyze any “species-specific effects.”

Id. at 124 (BiOp). Like the BA that Florida had prepared, the BiOp explained that “[b]ecause the

precise number and locations of future State 404 permit applications are unknown, the exact

effects to ESA-species cannot be accurately determined.” Id. at 126 (BiOp). Instead of species-

specific analysis, the BiOp analyzed whether the Florida program was “structured” to ensure that

no future permit would likely jeopardize ESA-listed species. Id. (BiOp). The FWS ultimately

31
“determined that the endangered species coordination processes” set out in the technical

assistance process (“TAP”) were “as protective” as Section 7(a)(2) of the ESA. Id. (BiOp).

The final portion of the BiOp contained the FWS’s programmatic ITS, which extended

ESA liability protection to (1) the EPA; (2) the State of Florida; and (3) any and all individual

state permittees for all take of listed species incidental to state-permitted activities so long as that

take is in compliance the “terms and conditions” of the ITS. Notably, however, none of the

listed “terms and condition” govern the conduct of state permittees; instead, the “terms and

conditions” bind only the EPA and FDEP. Id. at 141–42 (ITS). The ITS also does not specify

the amount or extent of permissible take or set a trigger for the reinitiation of consultation. Id. at

139–40 (ITS).

On December 17, 2020, then-EPA Administrator Andrew Wheeler announced approval

of Florida’s assumption application, and the agency published a notice of approval in the Federal

Register on December 22, 2020. Dkt. 56-1 at 433–34; see also 85 Fed. Reg. 83,553 (Dec. 22,

2020). Among other things, that notice asserted that the EPA had “determined that the State of

Florida ha[d] the necessary authority to operate a CWA Section 404 program in accordance with

the requirements found in CWA section 404(g)–(l) and EPA’s implementing regulations.” Dkt.

56-1 at 433. The notice further stated that the “EPA has taken final action to approve Florida’s

assumption of the program” and that “Florida’s program assumption” took immediate effect on

December 22, 2020, id., which was the day the notice was published in the Federal Register, see

85 Fed. Reg. 83,553 (Dec. 22, 2020). Because the decision purported to constitute an

adjudication, rather than a rule, and was made immediately effective, it was not subject to the

regulatory freeze, which took effect on January 20, 2021. But see CBD I, 597 F. Supp. 3d at 173,

32
212 (concluding “that the EPA’s approval of Florida’s Section 404 program constituted a rule,

rather than an adjudication”).

C. Procedural Background

Plaintiffs filed this suit on January 14, 2021, alleging that “[t]he EPA’s actions failed to

effectuate a lawful transfer of [Section 404 permitting] authority” to Florida. Dkt. 1 at 3, 10–14

(Compl. ¶¶ 1, 40–53). Plaintiffs’ original Complaint included nine claims. See Dkt. 1 at 25–48

(Compl. ¶¶ 100–248). As explained above, however, the Court already granted summary

judgment in Defendants’ favor with respect to Count Nine and held that Plaintiffs lack standing

to pursue Count Eight. See CBD I, 597 F. Supp. 3d at 179–80; CBD II, 2023 WL 5437496, at

*9–10. Seven of Plaintiffs’ original claims, plus four additional claims that Plaintiffs later added

to their Complaint, remain pending. See generally Dkt. 77 (Am. Compl). For present purposes,

however, the Court addresses only Plaintiffs’ ESA claims.

Plaintiffs’ ESA claims against the FWS challenge the adequacy and lawfulness of that

agency’s programmatic BiOp and no-jeopardy decision (Count 3), the adequacy and lawfulness

of its programmatic ITS (Count 4), and the adequacy and lawfulness of the combination of the

ITS, the BiOp, and the technical assistance process (Counts 6 and 13), which Plaintiffs argue,

“create an ESA scheme that is not authorized by law,” id. at 44, 56 (Am. Compl. ¶¶ 214, 297),

and “give [Florida] a workaround regarding the mechanisms that Congress provided for

establishing take limits, extending liability coverage, and determining jeopardy to species,” id. at

44 (Am. Compl. ¶ 215). Plaintiffs further allege that the EPA violated the ESA by relying on the

facially deficient BiOp and ITS, id. at 49–52 (¶¶ 249–73) (Count 10); by failing to consult with

the NMFS, id. at 53–55 (¶¶ 274–87) (Count 11); and by failing to consult with the FWS

regarding “ESA-listed sea turtles that nest on Florida’s beaches,” id. at 55 (¶¶ 288–94) (Count

33
12). Plaintiffs’ Amended Complaint asks the Court to, among other things, “[v]acate and set

aside [the] []FWS’ programmatic biological opinion and incidental take statement for the

challenged EPA decision and [to] remand with instructions for reopening and reinitiating

consultation” and to “[e]njoin the EPA’s approval and transfer of authority to the state.” Id. at

58 (Am. Compl. ¶¶ (m), (p)).

On February 28, 2023, Plaintiffs moved for summary judgment as to the remaining

counts contained in the Amended Complaint. Dkt. 98. The Federal Defendants cross-moved for

summary judgment, Dkt. 99, as did Florida, Dkt. 101. The Court heard oral argument on

October 19, 2023. 6

On December 4, 2023, CBD and the Sierra Club moved for a temporary restraining order

and/or preliminary injunction, seeking to preclude Florida from issuing two Section 404 permits

that, according to Plaintiffs, will cause irreparable harm to the endangered Florida panther and

the threatened crested caracara. Dkt. 135. Following a scheduling conference at which the EPA

indicated that it intended to comment on the permits in question (thereby delaying their

issuance), the parties agreed to a briefing schedule. Min. Entry (Dec. 5, 2023); Dkt. 138 at 1–2.

The Court granted leave to intervene to the two developers whose permits CBD and the Sierra

Club sought to enjoin, Min. Order (Dec. 22, 2023); Min. Order (Jan. 24, 2024) and heard oral

6
Before argument, the Court granted Plaintiffs’ motion for leave to file a surreply, which they
filed on October 12, 2023. See Dkt. 123; Min. Order (Oct. 6, 2023); Min. Order (Oct. 5, 2023).
After oral argument, the Court granted Defendant-Intervenors’ motion for leave to file a post-
hearing memorandum, Dkt. 127, and provided Plaintiffs an opportunity to respond, which they
did on October 30, 2023, Dkt. 129. See Min. Order (Oct. 27, 2023); see also Dkt. 130
(separately filing the memorandum originally attached to the Defendant-Intervenors’ motion,
Dkt. 127). The Federal Defendants then sought leave to file a supplemental response to
Plaintiffs’ supplemental filing, Dkt. 131, which the Court granted, see Min. Order (Nov. 7,
2023); see also Dkt. 134 (separately filing the memorandum originally attached to the Federal
Defendants’ motion, Dkt. 131). The Court also allowed Plaintiffs to submit a short response,
Min. Order (Nov. 7, 2023), which Plaintiffs filed on November 9, 2023, Dkt. 133.
34
argument from all parties on January 30, 2024. At that time, Florida indicated that the two

permits in question would issue no sooner than February 16, 2024. Jan. 30, 2024 Hrg. Tr.

(Rough at 25:9–13). 7

II. LEGAL STANDARD

“[W]hen a party seeks review of agency action under the APA[,] the district judge sits as

an appellate tribunal.” Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009) (quoting Am.

Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)). The general standard for

summary judgment set forth in Rule 56 of the Federal Rules of Civil Procedure does not apply to

a review of agency action. But summary judgment nonetheless “serves as the mechanism for

deciding, as a matter of law, whether the agency action is supported by the administrative record

and otherwise consistent with the APA standard of review.” Sierra Club v. Mainella, 459 F.

Supp. 2d 76, 90 (D.D.C. 2006) (citing Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir.

7
In resolving the pending motions, the Court has considered over twenty briefs: Dkt. 98
(Plaintiffs’ Motion for Summary Judgment); Dkt. 99 (Federal Defendants’ Cross-Motion for
Summary Judgment); Dkt. 102 (Defendant-Intervenors’ Cross-Motion for Summary Judgment
and Opposition); Dkt. 104 (Plaintiffs’ Consolidated Reply); Dkt. 106 (Federal Defendants’ Reply
in Support of Cross-Motion for Summary Judgment); Dkt. 107 (Defendant-Intervenors’ Reply in
Support of Cross-Motion for Summary Judgment); Dkt. 123 (Plaintiffs’ Sur-Reply); Dkt. 127-
1/Dkt. 130 (Defendant-Intervenors’ Post-Hearing Memorandum); Dkt. 129 (Plaintiffs’ Response
to Defendant-Intervenors’ Post-Hearing Memorandum); Dkt. 131-1/Dkt. 134 (Federal
Defendants’ Supplemental Brief); Dkt. 133 (Plaintiffs’ Response to Federal Defendants’
Supplemental Brief); Dkt. 135 (CBD and Sierra Club’s Motion for TRO and PI); Dkt. 145
(Limited-Intervenor Tarpon Blue Silver King I’s Memorandum in Opposition to TRO and PI);
Dkt. 146 (Limited-Intervenor Cameratta’s Memorandum in Opposition to TRO and PI); Dkt. 148
(Federal Defendants’ Memorandum in Opposition to TRO and PI); Dkt. 149 (Defendant-
Intervenors’ Memorandum in Opposition to TRO and PI); Dkt. 153 (Plaintiffs’ Reply); Dkt. 157
(Limited-Intervenor Cameratta’s Supplemental Remedy Brief); Dkt. 158 (Federal Defendant’s
Supplemental Remedy Brief); Dkt. 159 (Limited-Intervenor Tarpon Blue Silver King I’s
Supplemental Remedy Brief); Dkt. 160 (Defendant-Intervenors’ Supplemental Remedy Brief);
Dkt. 161 (Plaintiffs’ Supplemental Remedy Brief). The Court also received and has considered
two briefs from the Florida Chamber of Commerce and the Association of Florida Community
Developers. Dkt. 103; Dkt. 108; see CBD I, 597 F. Supp. 3d at 185 n.3.
35
1977)). In other words, “[t]he entire case on review is a question of law.” Marshall Cnty.

Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993).

Under the APA, a reviewing court shall “hold unlawful and set aside agency action,

findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “The arbitrary and capricious

standard is deferential; it requires that agency action simply be ‘reasonable and reasonably

explained.’” Cmtys. for a Better Env’t v. EPA, 748 F.3d 333, 335 (D.C. Cir. 2014) (quoting

Nat’l Tel. Coop. Ass’n v. FCC, 563 F.3d 536, 540 (D.C. Cir. 2009)); see also Kennecott Greens

Creek Mining Co. v. Mine Safety & Health Admin., 476 F.3d 946, 954 (D.C. Cir. 2007) (“[The]

standard of review under the arbitrary and capricious test is only reasonableness, not

perfection.”). A “court is not to substitute its judgment for that of the agency” if the agency

“examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including

a rational connection between the facts found and the choice made.” Airmotive Eng’g Corp. v.

Fed. Aviation Admin., 882 F.3d 1157, 1159 (D.C. Cir. 2018) (alterations in original) (internal

quotation marks omitted) (quoting Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983)).

“The Court’s review, however, must be ‘searching and careful.’” Colo. River Cutthroat

Trout v. Salazar, 898 F. Supp. 2d 191, 199 (D.D.C. 2012) (quoting Nat’l Env’t. Dev. Ass’n’s

Clean Air Project v. EPA, 686 F.3d 803, 810 (D.C. Cir. 2012)). “An agency decision is arbitrary

and capricious if it ‘relied on factors which Congress has not intended it to consider, entirely

failed to consider an important aspect of the problem, offered an explanation for its decision that

runs counter to the evidence before the agency, or is so implausible that it could not be ascribed

to a difference in view or the product of agency expertise.’” Cablevision Sys. Corp. v. FCC, 649

36
F.3d 695, 714 (D.C. Cir. 2011) (quoting State Farm, 463 U.S. at 43). Just as the Court may not

“substitute [its] judgment for that of the agency” to set aside an agency action, Rural Cellular

Ass’n v. FCC, 588 F.3d 1095, 1105 (D.C. Cir. 2009), it also typically may not “affirm an agency

decision on a ground other than that relied upon by the agency,” Manin v. Nat’l Transp. Safety

Bd., 627 F.3d 1239, 1243 (D.C. Cir. 2011).

III. ANALYSIS

The Court starts with standing and ripeness and then turns to the merits of the parties

ESA arguments.

A. Justiciability

Although Florida previously argued that Plaintiffs lack standing to pursue any of their

claims, it now appears to limit its standing challenge (other than its general challenge to

informational standing) to Counts One and Two, which are not presently at issue. See generally

Dkt. 102; Dkt. 107; Dkt. 127-2 at 2. With respect to Plaintiffs’ ESA claims, Florida instead

argues that at least some—Counts Three, Four, Eleven, and Twelve—are not ripe. See generally

Dkt. 102; Dkt. 107. It does not, however, include other ESA claims—that is, Counts Six, Ten,

and Thirteen—in that ripeness challenge. Id.; but see Dkt. 127-2 at 2 (labelling these claims

“arguably not ripe”). The Federal Defendants and the more recent intervenors, for their part,

raise no justiciability defenses at all. But because the Court has an independent duty to ensure

that it has subject-matter jurisdiction, see Attias v. Carefirst, Inc., 865 F.3d 620, 623 (D.C. Cir.

2017), the Court will address both standing and ripeness.

1. Standing

Because “standing is not dispensed in gross,” Lewis v. Casey, 518 U.S. 343, 358 n.6

(1996), the Court must assess Plaintiffs’ standing with respect to “each claim” currently at issue

37
and “each form of relief” sought, TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021). The

“irreducible constitutional minimum of standing” requires that Plaintiffs demonstrate, for each

claim, that they have (1) “suffered an ‘injury in fact’” (2) that is “fairly . . . trace[able] to the

challenged action of the defendant,” and (3) that is “‘likely’ . . . that the injury will be ‘redressed

by a favorable decision.’” Lujan v. Defs. of Wildlife, 504 U.S. 555. 560–61 (1992) (citations

omitted). At the summary judgment stage, Plaintiffs bear the burden of proffering “affidavits or

other evidence to demonstrate the specific facts necessary to support standing.” CBD I, 597 F.

Supp. 3d at 188 (citing Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235, 240 (D.C. Cir. 2015)).

When an association seeks to invoke the jurisdiction of a federal court, it can establish

standing in one of two ways. It can assert “associational standing” to sue on behalf of its

members. See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). Or it can

assert “organizational standing” to sue on its own behalf. See People for the Ethical Treatment

of Animals v. USDA, 797 F.3d 1087, 1093 (D.C. Cir. 2015). Because Plaintiffs’ invocation of

associational standing suffices on the facts of this case, the Court need not consider whether

Plaintiffs also have organizational standing.

Associational standing requires that “(1) at least one member of the association has

standing to sue in her own right (based on a showing of harm, causation, and redressability), (2)

the interests the association seeks to protect by suing on its members’ behalf are germane to its

purpose, and (3) neither the asserted claim nor the relief requested requires individual members

to participate in the litigation.” See Ctr. for Biological Diversity v. EPA, 56 F.4th 55, 66 (D.C.

Cir. 2022) (citing Hunt, 432 U.S. at 343). “When more than one association brings suit, ‘[the

Court] need only find one party with standing’ to satisfy the requirement.” Ctr. for Biological

38
Diversity v. EPA, 861 F.3d 174, 182 (D.C. Cir. 2017) (quoting Ams. for Safe Access v. DEA, 706

F.3d 438, 443 (D.C. Cir. 2013)).

Here, the Court concludes that at least the Conservancy of Southwest Florida (“the

Conservancy”), the Defenders of Wildlife (“the Defenders”), and CBD satisfy the requirements

of associational standing. To start, each of these Plaintiffs easily meets the second and third

requirements for associational standing. The missions of all three associations include the

protection of the diverse species and habitats, including listed species in Florida. See, e.g., Dkt.

98-1 at 1 (Crooks Decl. ¶ 4); Dkt. 98-3 at 2 (Fleming Decl. ¶¶ 4, 6); Dkt. 98-4 at 2, 3–4 (Hartl

Decl. ¶¶ 7, 11–12). The claims that they assert, moreover, do not require the participation of

individual members. See Ctr. for Biological Diversity, 56 F.4th at 67.

The Court is also satisfied that all three associations have carried their burden of

demonstrating that at least one, identified member has suffered or faces an imminent risk of

suffering an injury-in-fact that is fairly traceable to the challenged actions and that a favorable

decision is likely to redress. 8

a. Counts 3, 4, 6, 10, 12, and 13

The Court will analyze Counts Three, Four, Six, and Thirteen together because each

challenges the FWS’s programmatic approach, including the issuance of a programmatic BiOp, a

programmatic ITS, and the use of a “technical assistance process” in lieu of the statutorily

mandated approach. And because Counts Ten and Twelve challenge the EPA’s reliance on that

8
The Court previously noted that there are grounds to conclude that Plaintiffs also have
informational standing. CBD I, 597 F. Supp. 3d at 179. Florida responds by offering additional
evidence regarding its provision of information to members of the public relating to permitting
decisions. Given the Court’s finding that Plaintiffs have established their standing to sue on
other grounds, the Court need not reach this issue and expresses no view on the sufficiency of
Florida’s additional evidence.

39
same, allegedly unlawful approach, the Court considers Plaintiffs’ standing to pursue those

claims at the same time. Each of these Counts rests on a similar premise—that the BiOp and ITS

prepared by the FWS failed to satisfy the dictates of the ESA—and each seeks the same

remedy—vacatur of the BiOp and ITS and remand for reinitiation of consultation, see Dkt. 77 at

58 (Am. Compl. ¶¶ (m), (n)).

As the D.C. Circuit has held, “[a] claim of failure to fulfill the statutory consultation

obligation under the ESA is at least in significant part a claim of procedural injury, as to which

[courts] ‘relax the redressability and imminence requirements’ of standing.” Ctr. for Biological

Diversity, 56 F.4th at 67 (quoting Ctr. for Biological Diversity, 861 F.3d at 182) (citing Nat’l

Ass’n of Home Builders, 551 U.S. at 667). Indeed, the D.C. Circuit has described an agency’s

failure to meet its statutory consultation requirement as the “archetypal procedural injury.” Ctr.

for Biological Diversity, 861 F.3d at 182 (quoting WildEarth Guardians v. Jewell, 738 F.3d 298,

305 (D.C. Cir. 2013)). These precedents involved challenges to the action agency’s failure to

meet its consultation requirement, while, here, Plaintiffs challenge the failure of both the action

agency (the EPA) and the consulting agency (the FWS) to comply with the ESA. But the Court

can discern no material difference when it comes to standing. See Oceana, Inc. v. Pritzker, 125

F. Supp. 3d 232, 241 (D.D.C. 2015) (holding that conservation groups had standing to challenge

a BiOp in which the NMFS concluded that the combined operation of seven fisheries was not

likely to jeopardize the continued existence of certain sea turtles because, by permitting “an

unlawfully excessive amount of harm to [the turtles], [the BiOp] threaten[ed Plaintiffs’]

enjoyment and study of those animals”); Oceana, Inc. v. Ross, 2020 WL 5995125 (D.D.C. Oct.

9, 2020) (same). Even with relaxed redressability and imminence requirements that come with a

procedural injury, however, “the injury in fact requirement [remains] a hard floor of Article III

40
jurisdiction,” and “a plaintiff alleging a procedural violation” is not “freed” of the burden of

establishing causation. Ctr. for Biological Diversity, 861 F.3d at 182–83.

Starting with injury, the administrative record and the declarations submitted by members

of the Conservancy, the Defenders, and CBD amply support Plaintiffs’ claims of injury in fact.

The declarations show that members of the associations have concrete interests in minimizing

the loss of listed species in the State, including, among others, the Florida panther, the crested

caracara, and sea turtles. See, e.g., Dkt. 98-1 (Crooks Decl.); Dkt. 98-3 (Fleming Decl.); Dkt.

98-5 (Schwartz Decl.); cf. Lujan, 504 U.S. at 562–63. When the FWS concluded that it was

necessary to issue an ITS, the FWS concluded that approval of Florida’s assumption application

was “reasonably certain” to result in some take of all 139 listed species present in the State. See

50 C.F.R. § 402.14(g)(7). The FWS’s preparation of a no-jeopardy BiOp and ITS that

“bypass[es]” the core requirements of the ESA, and the EPA’s approval of Florida’s Section 404

assumption application based on that BiOp and ITS poses a material risk to the declarants’ work

and recreational interests in areas of Florida that will be directly affected. Cf. Ctr. for Biological

Diversity, 56 F.4th at 67–68. Assuming that Plaintiffs will prevail on the merits, as the Court

must for purposes of assessing standing, see In re Navy Chaplaincy, 534 F.3d 756, 760 (D.C.

Cir. 2008) (quoting City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003)), Plaintiffs’

allegations demonstrate a concrete injury in fact.

Without developing an objection as to the ESA claims specifically, Florida broadly

objects to the idea that the Plaintiffs will suffer an injury from having Florida administer the 404

program rather than the federal agencies. For example, the State argues that “Plaintiffs ‘must be

able to sufficiently answer the question: What’s it to you,’ if Florida—instead of the Corps—has

the primary role in administering the Section 404 Program for assumable waters in Florida where

41
EPA retains oversight responsibility?” See Dkt. 107 at 10. This is a version of Florida and the

Federal Defendants’ argument that whatever ESA requirements may have been omitted from the

programmatic BiOp and programmatic ITS will be sufficiently addressed at the individual permit

level through consultation with the FWS via the “technical assistance process.” But, contrary to

Defendants’ position, as more fully discussed in the merits section, that process does not

eliminate the “‘substantial probability’ that the [Plaintiffs’] cognizable interests will be

‘adversely affected.’” Id. In their briefing and their standing declarations, Plaintiffs aver to the

multitude of ways that the technical assistance process has proven inadequate. Conservancy

member Amber Crooks recounts, for example, how “[o]n at least one occasion, the State failed to

include a permit condition required by [the] []FWS to protect species on a project of concern to

the Conservancy.” Dkt. 98-1 at 11 (Crooks Decl. ¶ 31). She also discusses at length her

“concerning” experience with the technical assistance process that occurred in the State’s

consideration of a particular permit application. Id. (Crooks Decl. ¶ 32). During that application

process, the Conservancy voiced concerns over potential harms to the crested caracara and the

Florida bonneted bat. Id. The FWS shared these concerns, writing in an email that it was unable

to submit a comment on the FDEP’s website but that, in the agency’s words: “We know there

will be take of Florida bonneted bats.” Dkt. 98-1 at 38 (Attachment A to Crooks Decl.). Florida

permitted the project even though the state-issued permit “d[id] not assess take to [the] Florida

bonneted bat or provide a take limit.” Id. at 12 (Crooks Decl. ¶ 33) (emphasis added). 9 Florida

9
Crooks further avers that the Conservancy “could not locate any information—not in the
permit, not in FWC comments, and not in the public record—that assured [the Conservancy that
the] []FWS had conducted a proper analysis of jeopardy/adverse modification of critical habitat
for this project, or a proper analysis of whether or not take would occur, or if they adequately
assessed take associated with this project.” Id. at 11 (Crooks Decl. ¶ 32). For instance, the
permit “acknowledge[d] an estimated take of up to five different pairs of caracara, but stop[ped]

42
offers no evidentiary response to these assertions of fact: Neither of the two declarations from

Justin Wolfe, the General Counsel of the FDEP, submitted by the State addresses the project.

See Dkt. 102-1 (Wolfe Decl.); Dkt. 107-1 (Supplemental Wolfe Decl.).

Even more fundamentally, the technical assistance process is no substitute for what

Plaintiffs allege is missing here—namely, the ESA-required analysis of species and effects that

the FWS must conduct before it can make a no-jeopardy finding and accord incidental take

protection on the EPA, the State, and future state-permittees. See Dkt. 112-1 at 202 (ESA

Section 7 Consultation Handbook instructing the Services to “[n]ever determine the conclusion

of a biological opinion before completing the analysis of the best available data”). Plaintiffs

allege, for example, that the technical assistance program does not require the FWS (or the

NMFS) to evaluate the “effects of the action and cumulative effects to the environmental

baseline” using “the best scientific and commercial data available,” 50 C.F.R. § 402.14(g); see

also 16 U.S.C. § 1536(a)(2), and they allege that the BiOp that the FWS did prepare was wholly

deficient. They allege that Florida’s Section 404 program is less protective of listed species than

the Corps’ program. And they allege that the FWS’s ITS failed to satisfy ESA standards

because, among other things, it was not founded on an adequate BiOp, and—most critically—it

omitted any limit on incidental take, which functions to trigger reinitiation of consultation in

order to ensure that the Service’s initial determination of no jeopardy remains sound. Each of

these allegations supports a concrete injury in fact that is not avoided through the technical

assistance program.

short of setting a take limit for th[e] project.” Id. at 12 (Crooks Decl. ¶ 32). If the Corps, instead
of Florida, permitted the project in question, it would have been subject to Section 7 of the
ESA—not the “technical assistance” process.
43
Two additional procedural injuries merit brief mention. First, because the allegedly

deficient ITS purports to bestow ESA liability protection on future, state-permittees, those

permittees will be relieved of the need to seek protection under Section 10 of the ESA; indeed,

one of the two private intervenors in this case was in the process of seeking a Section 10 permit

before the ITS issued, Jan. 30, 2024 Hrg. Tr. (Rough at 70:6–9). Plaintiffs, however, would

receive far greater protection under the Section 10 process than under the technical assistance

process. Section 10, for example, requires the applicant to prepare a Habitat Conservation Plan

that includes steps to “minimize and mitigate” takings, “funding that will be available to

implement such steps,” and an explanation for why “alternative actions” were “not being

utilized,” 16 U.S.C. § 1539(a)(2)(A), and—significantly—it requires the Service to provide

notice and an opportunity for public comment on the plan, see id. § 1539(a)(2)(B).

Second, because the ITS lacks both any take limits and any terms and conditions which

bind individual permittees, Plaintiffs cannot bring citizen suits pursuant to Section 11 of the ESA

against permittees who engage in excess take. See 16 U.S.C. § 1540(g). Florida responds that a

violation of a take limit included in a state-issued permit, to the extent the permit contains one,

would open the door to a citizen suit, but its argument turns on the mistaken premise that the

“terms and conditions” set forth in the ITS impose duties on state permittees. Dkt. 112-5 at 141–

42 (ITS). The Federal Defendants, nonetheless, suggested at oral argument that a court could, in

the future, read other language included elsewhere in the ITS to create implied “terms and

conditions,” which would bind state permittees and provide a basis for bringing a citizen suit.

Jan. 30, 2024 Hrg. Tr. (Rough at 31–32, 59–64). But that argument both ignores the plain

language of the ITS and is itself unduly speculative.

44
Plaintiffs have also established causation and redressability. As to causation, a plaintiff

asserting procedural injury “never has to prove that if he had received the procedure the

substantive result would have been altered.” City of Dania Beach v. FAA, 485 F.3d 1181, 1186

(D.C. Cir. 2007) (quoting Sugar Cane Growers Coop. v. Veneman, 289 F.3d 89, 94 (D.C. Cir.

2002)). Rather, causation in the context of a procedural injury requires a showing of two causal

links: First that the omitted procedural step is connected to some substantive government

decision that may have been wrongly decided because of the omission, and second, that that

substantive government decision is connected to the plaintiff’s harm. Ctr. for Biological

Diversity, 861 F.3d at 184. Plaintiffs do not need to show but-for causation, only that the

procedure and substance are connected and that there is a “substantial probability” that the

procedural failure will create an adverse effect. Id. at 184–85. Here, it suffices that the FWS’s

bypassing of its ESA obligations led to the approval of Florida’s Section 404 program and led to

the ITS’ authorization for the taking of listed species, without due attention to the risks posed to

those species.

As for redressability, when a plaintiff’s “asserted injury arises from the government’s

allegedly unlawful regulation (or lack of regulation) of someone else,” standing is “ordinarily

‘substantially more difficult’ to establish.” Lujan, 504 U.S. at 562. When “causation and

redressability . . . hinge on the response of the regulated (or regulable) third party to the

government action or inaction,” id., the plaintiff must establish “facts . . . sufficient to

demonstrate a substantial likelihood that the third party directly injuring the plaintiff would cease

doing so as a result of the relief the plaintiff sought.” Renal Physicians Ass’n v. U.S. Dep’t of

Health & Hum. Servs., 489 F.3d 1267, 1275 (D.C. Cir. 2007). Here, the ultimate injury that

Plaintiffs assert is the increased risk that Florida’s program will jeopardize listed species, which

45
will result in losses to their aesthetic, scientific, and occupational endeavors. See, e.g., Dkt. 98 at

79–80. The question, then, is whether vacating the allegedly deficient programmatic BiOp and

ITS and/or setting aside the EPA’s assumption decision is likely to result in take limits that

would not otherwise apply or is otherwise likely to reduce the risk of jeopardy and take to listed

species in Florida. Although the redressability requirement is relaxed in a case alleging

procedural injury, it is not “wholly eliminat[ed].” Ctr. for Law & Educ. v. Dep’t of Educ., 396

F.3d 1152, 1157 (D.C. Cir. 2005). The Court is satisfied that Plaintiffs have met their burden.

Notably, if the Court vacates the BiOp and ITS, the ESA liability protection that currently

protects the State and state-permittees will no longer apply. At the very least, this means that for

projects that may affect listed species, and where the permittee is unwilling to risk civil and

criminal liability under the ESA, permittees will need to follow the process set forth in Section

10 of the ESA (or hope that the EPA federalizes the permit in question through its objection

power). 10 In either case, both Section 7 and Section 10 are demanding processes, and there is at

least “some possibility,” Massachusetts v. EPA, 549 U.S. 497, 518 (2007)—and, indeed, it seems

likely—that the process will result in greater protection for listed species in at least some cases.

On the programmatic level, there is also “some possibility”—and, again, a likelihood—

that the FWS and the EPA would conclude during any renewed Section 7 consultation that the

prospect of developing a legally and factually sufficient programmatic BiOp and programmatic

ITS is simply too daunting and that, instead, they should either create a process for federalizing

10
Cf. Dkt. 112-3 at 344 (“[The] EPA’s initial draft MOA . . . directs the Corps to take over
processing of any permit application where EPA’s objections are not satisfied. The Corps could
still process any permit application where an applicant does not agree to include the reasonable
and prudent measures as special permit conditions. This will provide permit applicants for large
scale projects, which typically have endangered species impacts, the choice to have their permit
processed by [F]DEP or transferred to the Corps.”).
46
permits that may affect listed species (as was done in New Jersey) or leave it to Florida

permittees to seek protection under Section 10. In either scenario, however, the FWS would be

required to engage in far more detailed consideration of the risks posed by particular projects to

listed species, and there is “some possibility”—and, indeed, a likelihood—that this more

searching analysis would lead to greater protection for at least some listed species. Moreover,

and of equal importance, actually setting take limits in a Section 7 ITS or Section 10 incidental

take permit would require, respectively, that the action agency and the FWS immediately

reinitiate consultation or revoke the permit if that limit is exceeded. Those take limits, if

exceeded, would also unambiguously—and in stark contrast to the instant ITS—provide grounds

under which Plaintiffs could bring citizen suits under the ESA.

In addition, if the FWS prepares a new BiOp that finds jeopardy, that finding might

provide a basis for the EPA to withdraw its approval of Florida’s program. See Nat’l Ass’n of

Home Builders, 55 U.S. at 652 (“Following the issuance of a ‘jeopardy’ opinion, the agency

must either terminate the action, implement the proposed alternative, or seek an exemption from

the Cabinet-level Endangered Species Committee pursuant to 16 U.S.C. § 1536(e).”); Dkt. 102 at

35 (“[W]here a State program does not comply with Federal standards, [the] EPA may seek to

withdraw the program.” (citing 33 U.S.C. § 1344(i))). 11 If the EPA withdraws its approval of the

Florida program—or if the Court sets aside the assumption decision—Section 404 permitting

authority would revert to the Corps. That reversion, in turn, would satisfy redressability by

providing a process that will result, where appropriate, in the issuance of individual ITSs that

11
Although Defendants maintain that the EPA’s assumption decision is not dependent on the
BiOp or the ITS, that is a disputed question in the case, which the Court defers to the merits.
47
contain take limits, which, if exceeded, will require reinitiation of the consultative process as

mandated by the ESA.

To be sure, it is possible that the Court might set aside the BiOp and ITS and that the

EPA, the State, and future state permittees will simply decide to proceed without protection from

potential ESA liability. But that prospect is extremely remote. A BiOp and ITS have “‘powerful

coercive effect,’” since those who engage the take of one or more listed species “risk civil and

criminal penalties.” Me. Lobstermen’s Assoc. v. NMFS, 70 F.4th 582, 593 (D.C. Cir. 2023)

(quoting Bennett, 520 U.S. at 169). The prospect that the EPA, the State, and future state

permittees would run that risk here, moreover, seems particularly unlikely, given the breadth of

the agency action at issue, the large number of listed species, and the fact that the EPA, the FWS,

and the State went to extraordinary lengths to put a programmatic ITS in place precisely to avoid

such risks.

b. Count 11

Count Eleven raises slightly different issues, which merit brief discussion. That Count

alleges that the EPA was required to consult with the NMFS because the marine species under

the NMFS’s jurisdiction, even if not found in assumed waters, could be affected downstream of

assumed waters. Dkt. 77 at 53–55 (Am. Compl. ¶¶ 274–87). This claim, once again, turns in

substantial part on an alleged, procedural injury, so the Court will address it with that framework

in mind. See Ctr. for Biological Diversity, 861 F.3d at 182 (describing an action agency’s failure

to consult as the “archetypal procedural injury”).

Because a procedural right “in vacuo” is insufficient to create Article III standing,

Summers v. Earth Island Institute, 555 U.S. 488, 496 (2009), Plaintiffs must show that the failure

to initiate consultation affects its members’ concrete interests. They have done so. Plaintiffs

48
have submitted declarations showing that their members have concrete research, conservation,

aesthetic, and moral interests in various marine species. One declaration, for example, describes

the enjoyment the declarant derives from viewing marine wildlife and recreating in places where

she can observe them in the wild. Dkt. 98-3 at 7–10 (Fleming Decl. ¶¶ 20–28). And another

declaration describes how the declarant’s work focuses on the smalltooth sawfish, Dkt. 98-1 at 3

(Crooks Decl. ¶ 11), which is “listed as endangered under the [ESA] by [the NMFS],” Dkt. 98-7

at 10 (Silverstein Decl. ¶ 24). As the Executive Director of Miami Waterkeeper attests, she is a

resident of Coral Gables, Florida, who (1) uses her Ph.D. in marine biology and fisheries to

research aquatic species, (2) “enjoy[s] observing listed coral and other marine wildlife,” and (3)

tries to “observe species such as manatees, herons, egrets, ibises, ospreys, sea turtles, and

dolphins.” Dkt. 98-7 at 1, 2, 11 (Silverstein Decl. ¶¶ 2–4, 7, 28). The EPA’s approval of

Florida’s Section 404 program without engaging in the requisite consultation with the NMFS

created a risk of harm to the endangered and threatened marine species of Florida.

Plaintiffs have also established a causal link between the EPA’s decision and their

alleged injury. The EPA’s omitted procedural step of consulting with the NMFS is connected to

the substantive government decision that Plaintiffs challenge—that is, the EPA’s approval of

Florida’s Section 404 program without considering what effects, if any, that decision would have

on marine life and without obtaining expert input from the NMFS regarding the approval’s

ecological impact. Those “omitted steps,” moreover, “unquestionably connect to the EPA’s

decision,” Ctr. for Biological Diversity, 861 F.3d at 184, to approve Florida’s program. The

Court is also persuaded that the EPA’s failure to consult regarding listed marine species poses a

substantial risk to Plaintiffs’ aesthetic, scientific, and professional interest in those animals. And,

the Court is unpersuaded that this causal link fails because the Corps might have issued the same

49
permits without consulting with the NMFS. The simple answer is that, had the Corps done so,

Plaintiffs could have challenged that allegedly unlawful conduct.

Turning to redressability, Plaintiffs ask the Court to “[i]ssue a declaratory judgment

declaring that [the] EPA violated the ESA by failing to consult with NMFS” and to “[i]ssue any

other appropriate injunctive relief.” Dkt. 77 at 57–58 (Am. Compl. ¶¶ (e), (q)). As noted, a

procedural-rights plaintiffs need not show that court-ordered compliance with the procedure

would alter the outcome. Instead, all Plaintiffs need to show is that “any required consultation

would redress [Plaintiffs’] members’ injury because the EPA could reach a different conclusion.”

Ctr. for Biological Diversity, 861 F.3d at 185 (emphasis in original). They have made that

showing since “there remains at least the possibility that” the EPA could reach a different

conclusion or modify its approval of Florida’s Section 404 program based on its consultation

with the expert agency. Id.

2. Ripeness

Although Florida does not dispute that Plaintiffs have met their summary judgment

burden of establishing standing to pursue their ESA claims, it maintains that at least some of

those claims are not ripe for review. In particular, Florida argues that Plaintiffs’ ESA claims

related to the ITS (Counts Three and Four) and to consultation for the NMFS-listed species

(Count Eleven) are not ripe for review because they are “based on speculations of harm that may

never arise.” Dkt. 102 at 12. The Court is unpersuaded with respect to Counts Three and Four

and agrees only in part with respect to Count Eleven. 12

12
Florida mistakenly labels Count Twelve as an “NMFS-based” claim. See Dkt. 102 at 59. But
Count Twelve asserts that the EPA was required to consult with the FWS, not the NMFS,
regarding ESA-listed sea turtles. See Dkt. 77 at 55 (Am. Compl. ¶¶ 288–94). That claim is ripe
for the same reasons that Plaintiffs’ challenges to the BiOp and ITS, asserted with respect to all

50
“Ripeness is a justiciability doctrine designed ‘to prevent the courts, through avoidance

of premature adjudication, from entangling themselves in abstract disagreements over

administrative policies.’” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 807,

(2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)); see also Devia v. Nuclear

Regul. Comm’n, 492 F.3d 421, 424 (D.C. Cir. 2007). “The doctrine is premised, in part, on

Article III’s case or controversy limitation and, in part, on prudential considerations ‘for refusing

to exercise jurisdiction.’” McCray v. Biden, 574 F. Supp. 3d 1, 11 (D.D.C. 2021) (citation

omitted). Prudential ripeness is assessed under the two-pronged test established in Abbott

Laboratories v. Gardner, 387 U.S. 136 (1967). The Court must “evaluate both the fitness of the

issues for judicial decision and the hardship to the parties of withholding court consideration.”

Id. at 149.

With respect to Counts Three and Four, Florida argues that Plaintiffs must wait to bring a

legal challenge to “an actual FDEP 404 permit issuance where, notwithstanding EPA and FWS

involvement and oversight, take protections are claimed to be inadequate.” Dkt. 107 at 28. In

the State’s view, without that context, the Court will be unable to assess whether and how the

supplanting of the usual ESA processes with the technical assistance process affects Plaintiffs’

rights. Plaintiffs disagree and observe that they have already identified two projects that the

State permitted where the record showed that take was likely to occur, but the permit failed to

include a take limit. See Dkt. 123 at 24–25 (citing Dkt. 98-1 at 9–12 (Crooks Decl. ¶¶ 28–33)).

The Court is persuaded that Plaintiffs’ challenges to the biological opinion and programmatic

ITS are ripe.

FWS-listed species, are ripe. Plaintiffs’ “NMFS-based” claim is set forth in Count Eleven,
which is addressed below.
51
First, the programmatic ITS is likely to cause “hardship” to Plaintiffs because it creates a

legal right at odds with Plaintiffs’ interests in preserving listed species: It authorizes the

incidental taking of all listed species in Florida, subject only to the non-statutory technical

assistance process. The FWS’s action constitutes “a definitive statement of [the] agency’s

position, has direct and immediate effect on the complaining parties, and has the status of law.”

Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 940 (9th Cir. 2006)

(alteration in original) (internal quotation marks and citation omitted) (holding that claim

challenging ITS was ripe for review). Second, prompt judicial review of Plaintiffs’ claim “will

not interfere with further administrative action.” Id. The FWS’s position in the programmatic

ITS “will not be reconsidered because the consultation process is complete once the biological

opinion is issued.” Id. To be sure, the FWS may have further involvement in the technical

assistance process, but it will not have any further input on the ITS itself, and it is the

programmatic ITS that Plaintiffs challenge. Third, “further factual development will not assist

[the Court] in resolving the legal question at issue,” id. at 941, which concerns the statutory

authorization for extending, as the FWS did here, broad immunity from take liability through a

technical assistance process distinct from and not authorized by the Section 7 process.

More generally, Florida’s ripeness argument misapprehends the nature of Plaintiffs’

challenges to the ITS. Plaintiffs challenge the ITS because it has conferred liability protection

for incidental take on the EPA, the State, and state permittees without setting any statutorily-

required take limits and without the necessary scientific, species-specific and effects analysis.

The crux of Plaintiffs’ claim, and the root of their alleged harm, is the fact that the programmatic

ITS “creates an unlawful risk of take for Florida’s program as a whole by failing to set limits on

incidental take for the program as a whole, in contravention of the ESA.” Dkt. 104 at 109

52
(internal quotation marks and citation omitted). Plaintiffs correctly observe that the possibility

that they might be able to bring a state-court challenge to a particular permit, or the possibility

that the FWS and/or the EPA might prevent an individual permit from issuing, does not render

their challenge to the administrative action that the EPA and the FWS have already taken—

authorizing take without the risk of ESA liability and thereby supplanting the Section 7 and

Section 10 processes—unripe for review.

But even placing those broader—and dispositive—considerations aside, the Court agrees

with Plaintiffs that they have identified particular Florida-issued permits without take limits.

Contra Dkt. 107 at 27 (“[T]he outcome of the agencies’ technical assistance process as well as

[the] EPA’s Section 404 oversight role cannot be predicted and no harm will be caused to

Plaintiffs’ interest unless and until they show inadequate take protection will occur.”); id. at 28

(“Plaintiffs . . . cannot point to any FDEP 404 permits that have resulted in or will result in

inadequate take provisions.”). Florida contends that Plaintiffs can bring suit in Florida court to

challenge permits that pose a risk of jeopardy to listed species, but that state-court remedy is not

a substitute for the rights and remedies provided in the ESA. Although Florida also suggested

during oral argument that Plaintiffs might be able to bring a citizen suit under the ESA, for the

reasons discussed above, the Court is not so sure. See infra 44. And, in any event, the remote

possibility that a federal court might someday entertain a collateral challenge to the FWS’s ITS

based on the State’s failure to include or to enforce a state-take-limit in a state-issued permit,

hardly shows that the legal question presented in this case is not fit for judicial review or is

unlikely to result in any hardship to Plaintiffs.

Florida argues that this case is like Wyoming Outdoor Council v. Dombeck, 148 F. Supp.

2d 1, 9–10 (D.D.C. 2001), where the Court held that an ESA Section 7 claim was not ripe for

53
review because the relevant oil and gas leases had not yet issued. But, here, Florida has issued

permits—more specifically, over 700 individual permits as of February 2024, Dkt. 160 at 5. And

in Wyoming Outdoor Council, unlike here, the FWS “was free to engage in further efforts to

fulfill its [statutory] obligations before the leases were issued.” 148 F. Supp. 2d at 10 (quoting

Wyo. Outdoor Council v. U.S. For. Serv., 165 F.3d 43, 50 (D.C. Cir. 1999)). The ripeness

requirement is intended to “protect . . . agencies from judicial interference until an administrative

decision has been formalized and its effects felt in a concrete way by the challenging parties.”

Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 732–33 (1998) (internal quotation marks and

citation omitted). There is little doubt that the FWS’s issuance of its programmatic ITS clears

that hurdle. Finally, because the FDEP has issued hundreds of permits, Florida’s reliance on

New Hanover Township v. U.S. Army Corps of Engineers, 992 F.2d 470 (3d Cir. 1993), is

similarly misplaced. There, the Third Circuit reasoned that because “neither the Township nor

anyone else will experience any effects from the Corps’ decision unless and until Pennsylvania

grants a water quality certificate, when fill work can begin, this case is not ripe.” Id. at 473

(emphasis added); see also Ctr. for Biological Diversity, 450 F.3d at 941 (holding that challenge

to an ITS was ripe and distinguishing New Hanover Township on similar grounds).

With respect to Count Eleven, Florida argues that Plaintiffs’ claims related to adverse

effects to species within the jurisdiction of the NMFS are not ripe because marine species under

NMFS’ jurisdiction are “unlikely to be found in any assumable waters because the Corps retains

jurisdiction over” tide waters and adjacent wetlands. Dkt. 107 at 30. Florida asserts that if a

proposed Florida Section 404 permit “may eventually affect NMFS species, the federal agencies

(EPA, FWS, and NMFS) and the state agencies (FDEP and FWC) would address those concerns

at that time. Otherwise, such a decision would be subject to challenge at that time.” Dkt. 102 at

54
59; see also Dkt. 107 at 30 (asserting that Plaintiffs have not been harmed by the EPA’s decision

“to defer NMFS consultation”). This argument, however, ignores the fact that the EPA was

required to consult with the NMFS before approving Florida’s Section 404 program.

Consultation is “designed as an integral check on federal agency action, ensuring that such action

does not go forward without full consideration of its effects on listed species.” Lujan, 504 U.S.

at 603 (Blackmun, J., dissenting). That procedural harm has already occurred—no further

factual development is necessary or helpful. Indeed, by Florida’s logic no claim for failure to

consult would ever be ripe for review unless and until the federal action was complete. That

contention is untenable.

The Court does agree with the State, however, that Plaintiffs’ NMFS-based challenge is

at least arguably unripe in one respect. Apparently recognizing its fault, the EPA has initiated

informal consultation with NMFS, and that consultation is still ongoing. It requires no further

analysis to conclude that, to the extent Plaintiffs seek to challenge the adequacy of that not-yet-

complete consultation, their claim is unripe.

3. Mootness

Finally, Florida argues that Count Eleven is moot to the extent it challenges the EPA’s

failure to consult with the NMFS. Dkt. 102 at 60. As further explained below, however, that

argument fails to confront the thrust of Plaintiffs’ claim—which is that the EPA was required to

consult with the NMFS before approving Florida’s assumption application—and it fails to

confront the State’s own observation (just discussed) that any post-approval consultation has yet

to reach fruition.

55
B. Merits

This, then, brings the Court to the merits of Plaintiffs’ ESA claims. The Court will first

address Plaintiffs’ challenges to the FWS’s programmatic BiOp, will then address the FWS’s no-

jeopardy determination and programmatic ITS, along with the related technical assistance

process, and, finally, will turn to Plaintiffs’ challenges to the EPA’s related actions.

1. ESA Claims Against the FWS

The parties disagree about many things. But they agree that the EPA was required to

engage in a meaningful Section 7 consultation with the FWS (and perhaps the NMFS) where the

Service(s) would determine (as reflected in a biological opinion) whether the EPA’s approval of

Florida’s Section 404 program threatened to jeopardize ESA-listed species and/or to adversely

modify or destroy their critical habitat. If the FWS concluded that EPA’s action was not likely to

jeopardize a listed species or to threaten a critical habitat but that the EPA’s action was likely to

lead to incidental take of a protected species, the FWS was required to issue an ITS setting limits

on that take, which, if exceeded, would trigger immediate reinitiation of the consultative process.

Plaintiffs allege that the FWS failed at these tasks, and they argue that the non-statutory technical

assistance process is—as both a matter of law and as applied here—no substitute for the

procedural and substantive requirements of Section 7.

a. Challenges to the Biological Opinion

Plaintiffs first argue that the FWS’s programmatic BiOp failed to include the analysis and

data required to determine whether the EPA’s action in approving Florida’s program—as

opposed to the State’s action in issuing individual permits—would jeopardize a listed species.

The Court agrees. Under the plain language of the statute, the FWS was required to prepare a

BiOp “detailing how the agency action affects the species or its critical habitat,” 16 U.S.C.

56
§ 1536(b)(3)(A), but, here, the FWS did not do so. Under the regulations, the BiOp “shall

include” a “detailed discussion of the environmental baseline of the listed species and critical

habitat” and a “detailed discussion of the effects of the action on listed species or critical

habitat.” 50 C.F.R. § 402.14(h). The FWS is expressly required to “[r]eview all relevant

information . . . available;” to “[e]valuate the current status and environmental baseline of the

listed species;” to “[e]valuate the effects of the action and cumulative effects on the listed

species;” and, in the end, to “[a]dd the effects of the action and cumulative effects to the

environmental baseline and in light of the status of the species . . . formulate the Service’s

opinion as to whether the action is likely to jeopardize the continued existence of listed species.”

Id. § 402.14(g). And, the ESA and the implementing regulations require the Service to “use the

best scientific and commercial data available” in making these assessments. Id. § 402.14(g)(8);

accord 16 U.S.C. § 1536(a)(2).

For present purposes, the Court need not address every asserted shortcoming in the

FWS’s programmatic BiOp because it is clear that, at the very least, the FWS failed to undertake

any species-specific analysis. The most compelling evidence in support of this aspect of

Plaintiffs’ claim are the words of the BiOp itself. To start, the BiOP states that the FWS merely

“evaluated the effects of the action on guilds of ESA-proposed and -listed species and designated

and proposed critical habitat.” Dkt. 112-5 at 114 (BiOp) (emphasis added); see also supra 31.

The BiOp does not define “guild”—nor does the ESA or the implementing regulations—but,

according to Merriam-Webster, a “guild” is “a group of organisms that use the same ecological

resource in a similar way.” “Guild,” Meriam Webster, www.merriam-

webster.com/dictionary/guild (last visited Feb. 11, 2024). The BiOp explains that, in the FWS’s

view, “[a]nalysis of effects using a guild approach is more appropriate at the programmatic

57
level,” leaving the mandated “[s]pecies-specific and site-specific analyses [to] occur during the

technical assistance process.” Dkt. 112-5 at 114 (BiOp). But an analysis at the guild-level fails

the statutory and regulatory demand to assess the environmental baseline, effects, and cumulative

effects at the species-level.

Throughout, the BiOp is forthright that the FWS did not endeavor to address species-

specific considerations, opting instead to defer analysis to the technical assistance process. Here

is a non-exhaustive sampling:

• “Because this is a consultation on a programmatic action, it is not feasible,
nor is it required, to conduct a meaningful site-specific and species-specific
effects analysis in this BiOp. Therefore, the []FWS determined that a
programmatic consultation is appropriate in determining whether FDEP’s
404 program and EPA’s oversight of FDEP’s 404 program is structured to
insure that no permit will be issued that is likely to jeopardize threatened and
endangered species and destroy or adversely modify critical habitat. For
future permits issued under the State 404 program, site-specific and species-
specific information will be available and assessed through the technical
assistance process with the State and/or through coordination with the EPA,
when EPA has not waived its review of the State permit action.” Dkt. 112-
5 at 124–25 (BiOp).

• “We developed a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9941804. Public record. Not legal advice.