WEL Perspective on Isolated Wetlands After Sackett (2023) and the Moss Vacatur of Florida’s 404 Assumption/Delegation
1. Professional and Institutional Context (2002–2019)
Wetland Extent Landward (WEL) approaches this issue from lived regulatory practice, not theory.
My wetlands professional career began in 2002, shortly after the U.S. Army Corps of Engineers – Jacksonville District publicly acknowledged that Florida’s wetland delineation and permitting methodology, as codified and implemented by Katherine M. Gilbert, Dr. John D. Tobe, et al., was ecologically superior for Florida’s unique physiography compared to default federal approaches developed for other regions of the country. At that time, Corps staff openly recognized that Florida’s hydrology, soils, and plant communities required a state‑specific methodology rather than a one‑size‑fits‑all federal model.
From that point forward—and for more than two decades—Florida wetlands were:
Delineated using the Florida Wetlands Delineation Manual (1995),
Permitted through DEP and the Water Management Districts, and
Administratively coordinated under the assumption that the Jacksonville Corps retained federal jurisdiction, even while deferring technically and substantively to Florida’s methodology.
This was not a rogue or informal practice; it reflected cooperative federalism in action, with the Corps effectively outsourcing technical judgment while retaining ultimate federal authority under Section 404 of the Clean Water Act. [usace.army.mil], [floridadep.gov]
For practitioners and landowners alike, this arrangement was stable, understood, and functional.
2. Legislative Delegation Request and 2020 Assumption
Against that background—not as a radical departure—the Florida Legislature formally requested assumption of the Section 404 program in 2019, and the program took effect January 1, 2020, after EPA approval and extensive interagency coordination.
Florida did not invent a new wetlands regime in 2020. It:
Codified existing practice,
Integrated federal requirements into Chapter 62‑331, F.A.C., and
Continued to rely on the same delineation science and ERP framework that had governed wetlands for decades. [floridadep.gov]
From WEL’s perspective, the 2020 assumption was formal recognition of what had already been operational reality since the early 2000s, not a deregulatory power grab.
3. The Sackett Decision (2023): Isolated Wetlands Are Not WOTUS
In Sackett v. EPA (May 25, 2023), the U.S. Supreme Court decisively rejected the “significant nexus” test, holding that wetlands are federally jurisdictional only if they have a continuous surface connection to relatively permanent waters that are themselves Waters of the United States (WOTUS). [supremecourt.gov], [wilmerhale.com]
This ruling:
Removed isolated wetlands from Clean Water Act jurisdiction,
Collapsed decades of expanding federal authority,
And returned primary responsibility for non‑WOTUS wetlands to the states.
For Florida, this was not disruptive. Florida has regulated isolated wetlands under state law since the 1980s, independent of federal jurisdiction, through the ERP program and Water Resources Act.
From WEL’s vantage point, Sackett validated Florida’s long‑standing structure, while exposing the fragility of federal attempts to stretch jurisdiction beyond clear statutory limits.
4. The Moss Vacatur (2024–2026): A Procedural, Not Substantive, Rejection
Judge Randolph Moss’s February 15, 2024 decision vacating Florida’s 404 assumption is often mischaracterized as a substantive indictment of Florida’s wetlands protections. It is not.
The ruling rested almost entirely on Endangered Species Act (ESA) consultation mechanics, not on Clean Water Act standards, Florida’s ERP framework, or wetland delineation science. [llw-law.com], [smithhulsey.com]
Specifically, Judge Moss concluded that:
EPA improperly relied on a programmatic Biological Opinion, and
Section 7 incidental take protections cannot be automatically extended to state‑issued permits.
The Court did not find that Florida’s wetlands program:
Permitted more wetland destruction,
Used inferior science,
Or weakened substantive environmental protections.
Indeed, Judge Moss emphasized that his ruling returned permitting to the Corps solely because Section 7 is a federal procedural trigger, not because Florida was incapable of protecting wetlands. [dawsonassociates.com]
The subsequent denial of a stay and continued reaffirmation through 2026 appellate proceedings underscore that this is a jurisdictional and administrative law dispute, not an ecological one. [newsbreak.com], [biological...ersity.org]
5. WEL’s Core Position
From WEL’s perspective:
Sackett narrowed federal jurisdiction—properly and finally.
Isolated wetlands are a state responsibility, by constitutional design and statutory reality.
Florida has regulated isolated wetlands effectively for over 40 years, irrespective of federal overreach.
The Moss vacatur does not invalidate Florida’s wetlands protections—only the procedural mechanism EPA used to approve delegation.
The current churn creates regulatory confusion without increasing wetland protection, while undermining long‑standing cooperative practice between Florida and the Corps.
For waters that remain WOTUS, the Moss vacatur increases housing costs without increasing environmental protection.
For waters that are unquestionably WOTUS, the Moss vacatur does not strengthen environmental safeguards—it reintroduces delay, duplication, and uncertainty by forcing permits back through an already overextended U.S. Army Corps of Engineers.
The consequences are predictable:
Longer permitting timelines increase land‑holding, engineering, and financing costs.
Corps capacity constraints slow reviews compared to Florida’s former state‑run program.
Risk premiums rise, and those costs are passed directly to homebuyers, renters, and local governments.
These higher housing and infrastructure costs occur without any substantive environmental gain, as the same Clean Water Act standards and ESA consultation requirements apply as they did before 2020.
In effect, for WOTUS waters, the vacatur functions as a cost multiplier—not a conservation improvement—exacerbating Florida’s housing affordability challenges while returning permitting to a federal framework long acknowledged as less efficient for Florida’s environmental conditions.
In short, Florida did not lose the legal authority to protect wetlands—the federal government lost a procedurally defective shortcut.
6. Looking Forward
WEL supports:
Re‑delegation that is ESA‑compliant and procedurally durable,
Recognition that state‑specific wetland science is essential, and
Regulatory clarity that acknowledges Sackett’s limits on federal power while honoring Florida’s proven expertise.
As the saying goes, you can’t put Humpty Dumpty back together again—but you can build a better framework that aligns law, science, and reality.