During the week of March 23, the D.C. Circuit decided Center for Biological Diversity v. Zeldin, a case involving the intersection of the Clean Water Act and the Endangered Species Act.

Section 404 of the Clean Water Act prohibits the discharge of any pollutant into the waters of the United States without a permit. The U.S. Army Corps of Engineers ordinarily issues those permits, but the Act allows a state to apply to the EPA to assume that authority. In August 2020, Florida did just that.

As part of its application, Florida sought to streamline the permitting process. Under the ordinary system, projects that would unintentionally harm endangered or threatened species usually had to obtain another permit from the Fish and Wildlife Service or the National Marine Fisheries Service to avoid liability under the Endangered Species Act. Florida proposed to simplify that regime by eliminating the need for projects to obtain a second permit.

After the EPA received Florida’s application, it consulted with the Fish and Wildlife Service as required by the Endangered Species Act. The Service determined that granting the application wouldn’t jeopardize a protected species (the “no-jeopardy determination”) and agreed to exempt permit recipients from liability under the Act if they complied with Florida’s permitting process. The EPA then granted Florida’s application to assume permitting authority.

A coalition of environmental groups challenged that decision, and the D.C. Circuit vacated it. In a decision by Judge Pan, the court unanimously concluded that the Service’s agreement to exempt permit recipients from liability violated several regulatory requirements and was therefore arbitrary and capricious. Judges Pan and Wilkins also concluded that the Service’s no-jeopardy determination was arbitrary and capricious, though they disagreed on the reasoning. They further agreed that the EPA’s decision to approve Florida’s application was arbitrary and capricious because it relied on the Service’s unlawful actions. As a result, they agreed that the EPA’s approval and the Service’s actions should be vacated.

Judge Henderson dissented on several points. Specifically, she would have upheld the Service’s no-jeopardy determination and the EPA’s approval of Florida’s application and wouldn’t have vacated either.