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Lock ESA Clearance for EPA Approval

Full Title:
Restore Florida Water Independence Act of 2026

Summary#

This bill says that a specific Fish and Wildlife Service programmatic biological opinion (dated November 17, 2020) will count as meeting the Endangered Species Act (ESA) requirements for the EPA action approving Florida’s takeover of the Section 404 dredge-and-fill permitting program. It also says no further ESA Section 7(a) consultation is required for that agency action. The broad goal is to make the 2020 biological opinion the final ESA check for that approval.

  • Main change: Statutorily treats the named 2020 programmatic biological opinion (and its incidental take statement) as satisfying the ESA for the EPA approval of Florida’s Section 404 permit program assumption.
  • Stops further consultation: The bill says no additional consultation under ESA section 7(a) is required for that agency action.
  • Scope: The “agency action” is defined mainly as EPA’s December 22, 2020 approval notice of Florida’s assumption request, and it also says the term includes “other activities” as defined in the biological opinion’s glossary.
  • Narrow application: The change applies only “for purposes of the Agency Action” described in the bill; it does not by text change other ESA duties beyond that action.
  • References: The bill specifically references the programmatic biological opinion and its incidental take statement (pages 69–73 of that document).

What it means for you#

  • State of Florida / FDEP (Florida Department of Environmental Protection): This makes the 2020 biological opinion the ESA clearance for EPA’s approval of Florida’s assumption of the Section 404 dredge-and-fill permitting program. That could reduce the need for new ESA consultations tied to that EPA approval.
  • EPA: For this particular approval, EPA would treat the named biological opinion as satisfying ESA consultation obligations and would not carry out further ESA Section 7(a) consultation for that agency action.
  • Permit applicants (developers, dredging or fill projects): This could mean fewer federal ESA-related steps tied specifically to the EPA approval of Florida’s program; practical permitting effects depend on how Florida’s program applies ESA considerations in its permits.
  • Federal wildlife agencies (USFWS) and species conservation: The bill removes the need for additional Section 7(a) consultation for the specified action. That changes the timing and forum for any further federal ESA review tied to that EPA approval.
  • General public / local governments: The bill does not itself change how Florida issues individual Section 404 permits under its assumed program. It addresses only the legal effect of the 2020 biological opinion on the EPA approval action.

Expenses#

No publicly available information.

  • The bill text and summary do not include a fiscal note or estimate of costs or savings.
  • Possible administrative effects (for example, fewer federal consultation steps) are not quantified in the bill.
  • Any costs or savings to federal agencies, the State of Florida, permit applicants, or affected local governments are not stated in the available material.

Proponents' View#

The bill appears intended to remove uncertainty or delay tied to the ESA review for EPA’s approval of Florida’s Section 404 assumption. Possible arguments that follow from the bill text:

  • The bill appears intended to make clear that the named programmatic biological opinion satisfies the ESA for EPA’s approval action.
  • This could be seen as preventing duplicative or additional ESA consultations for that specific EPA approval.
  • It could be viewed as providing legal clarity and finality about the federal ESA status of the EPA approval decision.
  • It may be intended to speed implementation by reducing further federal procedural steps tied to that approval.

Opponents' View#

Based on the bill’s design and what it does not explain, reasonable concerns include:

  • One concern is that the bill removes the possibility of additional ESA Section 7(a) consultation tied to that EPA approval, which could limit further federal review of risks to listed species or critical habitat connected to how the program is implemented.
  • The bill does not clearly explain what “other activities” included in the agency action are, so scope and downstream effects are unclear.
  • It is unclear whether this affects future actions or decisions that might otherwise trigger fresh ESA consultations tied to implementation or modification of the assumed program.
  • The bill gives no fiscal detail or analysis of enforcement, monitoring, or mitigation costs that might follow from relying solely on the named biological opinion.
  • The bill could raise legal questions about whether statutory action overriding further consultation might reduce federal oversight in ways that affect species protections; the bill text does not address dispute-resolution or monitoring arrangements.