The Pendulum Swings Again
A few weeks ago, I wrote that Florida's wetland program did not begin in 2020.
Recent events illustrate why that distinction matters.
The pendulum swings.
In December 2020, the U.S. Environmental Protection Agency approved Florida's assumption of the federal Clean Water Act Section 404 permitting program, making Florida only the third state authorized to administer the program. Many viewed the decision as recognition of Florida's longstanding experience in wetland regulation and environmental resource management. [floridaspecifier.com], [mitigation...inginc.com]
Then the challenges began.
A coalition of seven environmental organizations, previously identified by WEL in its February 23, 2024 article as the "The Deadly 7," challenged EPA's approval in federal court. The litigation ultimately resulted in Judge Randolph Moss vacating Florida's assumed Section 404 program in February 2024. [floridaspecifier.com], [floridaspecifier.com]
The pendulum moved again.
On March 27, 2026, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court's decision, leaving the vacatur in place. [llw-law.com], [floridaspecifier.com], [americanbar.org]
For many, the matter appeared settled.
It was not.
On May 27, 2026, Congressman Byron Donalds introduced the Restore Florida Water Independence Act (H.R. 9017). The legislation seeks to restore Florida's Section 404 authority through congressional action. For the first time since assumption was vacated, the Legislative Branch formally entered the conversation. [donalds.house.gov]
Then, on August 7, 2026, the U.S. Department of Justice petitioned the full D.C. Circuit Court of Appeals for rehearing, arguing that the March 2026 decision conflicts with existing precedent and may make future state assumption programs (which is the intent of Congress) significantly more difficult nationwide. [floridaspecifier.com], [mitigation...inginc.com], [insideepa.com]
What makes this timeline remarkable is not the outcome itself.
It is the fact that all three branches of government have now become involved.
The Executive Branch approved the program.
The Judicial Branch vacated it.
The Legislative Branch responded with proposed legislation.
The Executive Branch then returned to the courts seeking reconsideration.
Regardless of one's position on assumption, that level of governmental attention underscores the significance of Florida's wetland regulatory program.
Timeline
1996
Florida adopts Chapter 62-340, Florida Administrative Code, establishing the State's wetland delineation methodology. Developed under the leadership of Katherine M. Gilbert and authored principally by Dr. John D. Tobe, the rule became the scientific foundation for wetland identification and regulation throughout Florida with the acknowledgement and acceptance of the Jacksonville, Florida office of the United States Army Corps of Engineers
December 2020
EPA approves Florida's assumption of the Clean Water Act Section 404 permitting program. [floridaspecifier.com], [mitigation...inginc.com]
February 2024
The Deadly 7 (2/23/2024 WEL blog)successfully challenge the assumption package in federal court, resulting in Judge Randolph Moss vacating EPA's approval and returning authority to the U.S. Army Corps of Engineers. [floridaspecifier.com], [floridaspecifier.com]
March 27, 2026
The U.S. Court of Appeals for the District of Columbia Circuit affirms the vacatur. [llw-law.com], [floridaspecifier.com], [americanbar.org]
May 27, 2026
Congressman Byron Donalds introduces the Restore Florida Water Independence Act (H.R. 9017). [donalds.house.gov]
August 7, 2026
The U.S. Department of Justice petitions the full D.C. Circuit Court of Appeals for rehearing. [floridaspecifier.com], [mitigation...inginc.com], [insideepa.com]
Closing Thought
Looking back, the timeline is remarkable.
Chapter 62-340 provided the scientific foundation.
EPA granted assumption.
The Deadly 7 challenged assumption.
Judge Moss vacated assumption.
The D.C. Circuit affirmed the vacatur.
Congressman Byron Donalds introduced H.R. 9017.
The Department of Justice sought reconsideration.
Florida's wetland program did not begin in 2020.
The Deadly 7 did not end the conversation in 2024.
Congress did not settle it in 2026.
The Department of Justice clearly believes the story remains unfinished.
The pendulum is still moving.
The question is not whether it will swing again. The question is in which direction.