[00:00:01] Speaker 03:
Case number 24-5101 et al.

[00:00:05] Speaker 03:
Center for Biological Diversity et al.

[00:00:07] Speaker 03:
versus Liam Zeldin in his official capacity as Administrator for the U.S.

[00:00:12] Speaker 03:
Environmental Protection Agency et al.

[00:00:15] Speaker 03:
State of Florida and Florida Department of Environmental Protection et al.

[00:00:20] Speaker 03:
Ms.

[00:00:20] Speaker 03:
Jaffee for Balance Cross-Apolis EPA et al.

[00:00:23] Speaker 03:
Mr. Street for Balance Cross-Apolis State of Florida and Florida Department of Environmental Protection

[00:00:29] Speaker 03:
Ms.

[00:00:30] Speaker 03:
Rykert for Appellees CrossFit Balance Center for Biological Diversity at L. May it please the court, Rebecca Jaffe appearing on behalf of the United States.

[00:00:43] Speaker 04:
I'd like to reserve one minute of time for rebuttal.

[00:00:47] Speaker 04:
The district court erred in holding that the Fish and Wildlife Service and EPA violated the Endangered Species Act and the court should reverse.

[00:00:56] Speaker 04:
Fish and Wildlife Service and EPA complied with the Endangered Species Act in relying on a process-based approach called technical assistance to ensure that EPA's approval of Florida's state 404 permitting program would not jeopardize listed species.

[00:01:13] Speaker 04:
The agencies followed the approach that the Second Circuit upheld in cooling water intake, and the district court erred in rejecting that precedent.

[00:01:22] Speaker 04:
The approach here allowed the agencies both to support Congress's cooperative federalism goal of having states manage 404 permitting programs and also comply with the Endangered Species Act.

[00:01:36] Speaker 04:
It's important to understand the agency action at issue here was a one-time approval of Florida's application to assume permitting authority for all assumed waters across the entire state in perpetuity.

[00:01:51] Speaker 04:
In that context, EPA and the Fish and Wildlife Service simply could not know all the permits in all the locations and all the potential species impacts forever.

[00:02:05] Speaker 04:
So the agencies relied on species protective guardrails built into Florida's program.

[00:02:12] Speaker 05:
I guess my question is from what you just said is you said they couldn't know that forever, but why doesn't that just mean you can't approve this under the Endangered Species Act?

[00:02:23] Speaker 05:
Because, Your Honor, because the Endangered Species Act requires the agency to look at all the data and to make certain findings about whether there's jeopardy or not.

[00:02:36] Speaker 05:
And that's based on baselines and effects, et cetera.

[00:02:40] Speaker 05:
So if it is the case that this program doesn't allow you to make those findings, why isn't the answer that this program is not lawful?

[00:02:48] Speaker 04:
I have a couple answers to that, Your Honor.

[00:02:50] Speaker 04:
I think the first is that we have to read the statutes in a way to harmonize them, not to let the Endangered Species Act prohibit states from ever assuming 404 permitting authority, which is what we know Congress wanted.

[00:03:02] Speaker 05:
My question, though, is 404 permitting authority doesn't have to take into account the Endangered Species Act at this stage.

[00:03:09] Speaker 05:
There are two other states that do this, and they don't have blanket

[00:03:14] Speaker 05:
take liability provisions under the Endangered Species Act, you can approve the 404 permit and just let the Endangered Species Act function independently.

[00:03:29] Speaker 04:
Your Honor, and I do have one more response I want to go back to with the previous question, but I think both of those states, I mean, every state designs its program itself, and that's what Congress envisioned.

[00:03:40] Speaker 04:
Those states are very different states with fewer listed species.

[00:03:44] Speaker 04:
And also, those approvals were quite a long time ago, where I think lots of things operated differently.

[00:03:51] Speaker 04:
But the question under the Endangered Species Act is, will there be jeopardy?

[00:03:57] Speaker 04:
And the Fish and Wildlife Service absolutely has to look at the best available data.

[00:04:01] Speaker 04:
Here, the best available data was, we don't know.

[00:04:04] Speaker 04:
We can't know.

[00:04:05] Speaker 04:
So we'll look.

[00:04:06] Speaker 05:
I understand that.

[00:04:06] Speaker 05:
But I guess going back to what we were just talking about,

[00:04:09] Speaker 05:
in terms of the Clean Water Act and the permitting authority, it doesn't speak to the Endangered Species Act.

[00:04:16] Speaker 05:
And what normally happens is you comply with Clean Water Act and you comply with the Endangered Species Act.

[00:04:21] Speaker 05:
And you don't have to have one process that tries to comply with both.

[00:04:25] Speaker 05:
You can be doing your permitting as a state.

[00:04:27] Speaker 05:
Florida can be doing the permitting.

[00:04:29] Speaker 05:
And then each permit might have to comply with Section 10 or, I mean, Section 7 goes with agency actions.

[00:04:37] Speaker 05:
These individual permits can't really come under Section 7.

[00:04:41] Speaker 05:
So it just seems that what Florida and the Fish and Wildlife Service were trying to do is to create a whole new thing.

[00:04:50] Speaker 05:
And I just don't see why everybody has to bend over backwards to allow them to do that when we have two independent statutory regimes which can very well function independently.

[00:05:01] Speaker 05:
And that's the way they're intended to function.

[00:05:07] Speaker 04:
Your honor, there is a federal action here.

[00:05:11] Speaker 04:
And that is EPA's approval of Florida's program.

[00:05:15] Speaker 04:
And EPA concluded that it had to consult under the Endangered Species Act.

[00:05:21] Speaker 04:
And that is because of the form of the program that they came up with.

[00:05:25] Speaker 05:
Because correct me if I'm wrong, but under the Clean Water Act, for Florida to take this over,

[00:05:32] Speaker 05:
It doesn't mention the Endangered Species Act.

[00:05:34] Speaker 05:
It just has to have certain, I guess, the ability to have a permitting structure.

[00:05:41] Speaker 05:
It doesn't contemplate that the Endangered Species Act will be subsumed by this process that you come up with.

[00:05:50] Speaker 04:
Well, the Clean Water Act does require that EPA solicit and review comments from the Fish and Wildlife Service.

[00:05:58] Speaker 05:
And it does require that EPA ensure that any state- For individual permits, not for them to take over the permitting.

[00:06:08] Speaker 05:
That's not the way I read it, but perhaps I'm wrong.

[00:06:13] Speaker 04:
Your Honor, at Clean Water Act Section 404G,

[00:06:22] Speaker 04:
Two and three.

[00:06:24] Speaker 04:
The statute says the administrator shall provide copies of such program to the Secretary of the Army Corps of Engineers and the Secretary of the Interior acting through the director of the United States Fish and Wildlife Service.

[00:06:42] Speaker 05:
404G3 says... I'm sorry, but that's not part of the process of approving the state's ability to issue the permits instead of the Army Corps, is it?

[00:06:56] Speaker 04:
I believe it is, Your Honor.

[00:06:57] Speaker 04:
404G is about state administration.

[00:07:00] Speaker 04:
And then 404H lists the criteria for EPA to approve a state's program.

[00:07:09] Speaker 04:
and it talks about taking into account.

[00:07:12] Speaker 05:
So I'm looking at 1344 G, which is labeled state administration.

[00:07:18] Speaker 04:
Yes, your honor.

[00:07:18] Speaker 05:
And it says, the state may submit to the administrator a full and complete description of the program it proposes to establish and administer under state law or under an interstate compact.

[00:07:32] Speaker 05:
That doesn't talk about federal law or the ESA at all, right?

[00:07:36] Speaker 05:
That's G1.

[00:07:40] Speaker 05:
But I guess- Right, right, but G2, Your Honor?

[00:07:51] Speaker 05:
I'm just looking at G1, but I think that the broader point, though, I think, is that when a state wants to take over this permitting process under the Clean Water Act, it's not required at that stage to come up with a plan about how it's going to comply with the Indian Air Species Act.

[00:08:10] Speaker 05:
And that's not what happened in the other two states.

[00:08:13] Speaker 05:
This is a novel thing that you're doing.

[00:08:15] Speaker 05:
Do you agree with that?

[00:08:17] Speaker 04:
No, Your Honor, I beg to differ.

[00:08:20] Speaker 04:
Florida's program is structured differently than the other two states, but the 404 G2 and G3 specifically refer to comments from the Fish and Wildlife Service.

[00:08:30] Speaker 04:
And then 404 H, which has the criteria for approving a program,

[00:08:34] Speaker 04:
refers to taking into account the comments from the Fish and Wildlife Service, but also EPA must assure that the state can assure compliance with the 404b1 guidelines.

[00:08:46] Speaker 04:
And one of the 404b1 guidelines is that no permit shall issue if it will cause jeopardy or adverse modification of critical habitat.

[00:08:55] Speaker 04:
So when EPA is approving a program, it has to have some way of saying,

[00:09:00] Speaker 04:
Are we meeting these guidelines?

[00:09:01] Speaker 04:
Are we sure that the state can issue permits that won't cause jeopardy?

[00:09:07] Speaker 05:
It just seems to me that the default way to handle this, if we all agree that we have obligations under the Clean Water Act and we have obligations under the Endangered Species Act is for in each case to make sure those obligations are met instead of in advance trying to come up with some program that gives blanket

[00:09:28] Speaker 05:
just take liability insurance to anything that's coming later when you don't even know what the specifics are going to be.

[00:09:37] Speaker 04:
Your honor, Florida has a right to design its program.

[00:09:41] Speaker 04:
And EPA has to review the program that is presented to it and determine whether it complies with the criteria.

[00:09:47] Speaker 04:
And EPA is taking an action.

[00:09:50] Speaker 05:
I agree with all of that.

[00:09:51] Speaker 05:
I just think that the action they're taking doesn't seem to comply with the Endangered Species Act.

[00:09:56] Speaker 04:
Well, I do agree with the court that they couldn't know all of the impacts.

[00:10:01] Speaker 04:
And so here, the best available data was relying on the process, a process where Florida will submit every single permit to the Fish and Wildlife Service to review.

[00:10:11] Speaker 04:
Fish and Wildlife Service will propose various protective conditions that Florida must incorporate into permits.

[00:10:19] Speaker 04:
Fish and Wildlife Service will specify take limits for every single permit.

[00:10:24] Speaker 05:
your time although it looks like I have I apologize to my colleagues but I just have this final question do you think it would have been permissible for Florida and the Fish and Wildlife Service just to say we approve this subject to later consultation that will definitely ensure that section seven that Endangered Species Act will be fulfilled.

[00:10:52] Speaker 04:
I don't know, Your Honor.

[00:10:53] Speaker 04:
I don't know what the later consultation would be, because this is a one-time approval.

[00:10:56] Speaker 04:
The later consultation will be, Fish and Wildlife Service will be involved.

[00:11:00] Speaker 05:
And we will definitely ensure that the Endangered Species Act will be abided by.

[00:11:06] Speaker 04:
Your Honor, EPA is taking the action now.

[00:11:09] Speaker 04:
It's approving the action now.

[00:11:10] Speaker 04:
And ask me a hypothetical.

[00:11:13] Speaker 05:
Could Florida and the Fish and Wildlife Service have come up with a plan, where the plan was,

[00:11:21] Speaker 05:
We're going to approve 404 permitting by Florida now, subject to a commitment, a firm promise that we will comply with the Endangered Species Act in a process later to be determined.

[00:11:39] Speaker 04:
I don't know, Your Honor, and I think there'd be a lot of questions about what is this process later to be determined.

[00:11:44] Speaker 04:
So here they laid out the process.

[00:11:46] Speaker 05:
And the process doesn't specifically require

[00:11:51] Speaker 05:
compliance with each of the terms of the Endangered Species Act.

[00:11:54] Speaker 05:
It's basically saying, we promise that this is all going to be fine.

[00:11:59] Speaker 05:
So I think that's exactly what happened in this case.

[00:12:02] Speaker 05:
It's very similar to my hypothetical.

[00:12:04] Speaker 04:
I beg to differ, Your Honor.

[00:12:05] Speaker 04:
I don't think the process is sort of a, you know, it'll be fine.

[00:12:09] Speaker 04:
Don't worry about it.

[00:12:10] Speaker 04:
It's a very detailed.

[00:12:12] Speaker 04:
There are memoranda of agreement.

[00:12:14] Speaker 04:
Florida has codified the process in its regulations in its 404 program handbook.

[00:12:20] Speaker 05:
But there's no enforcement mechanism for the Endangered Species Act.

[00:12:26] Speaker 05:
They will consult, and the blanket take liability applies no matter what the result is of that consultation.

[00:12:35] Speaker 04:
I beg to differ, Your Honor.

[00:12:37] Speaker 04:
If plaintiffs, for example, feel that this permit is not doing enough to minimize take or to avoid jeopardy, they can sue in Florida state court.

[00:12:51] Speaker 05:
I'm sorry, who can sue in Florida State Court?

[00:12:54] Speaker 04:
Plaintiffs, or I mean anyone, but can challenge an individual permit in Florida State Court.

[00:12:59] Speaker 04:
Florida's permits are subject to judicial review in Florida State Court.

[00:13:05] Speaker 05:
But the default of this program is that you're immune from take liability as long as this process is followed, but the process doesn't ensure that all of the steps that you're supposed to take to get

[00:13:20] Speaker 05:
that protection from take liability happens?

[00:13:23] Speaker 04:
I beg to differ.

[00:13:24] Speaker 04:
It does ensure that.

[00:13:26] Speaker 04:
It absolutely does.

[00:13:27] Speaker 04:
It's a detailed process where Fish and Wildlife Service has three separate opportunities to comment on permits.

[00:13:35] Speaker 04:
Florida has to send permits to Fish and Wildlife Service, applications to Fish and Wildlife Service immediately after it receives them.

[00:13:42] Speaker 04:
Fish and Wildlife Service can comment at that time.

[00:13:45] Speaker 04:
Fish and Wildlife Service can also comment during the public notice period.

[00:13:48] Speaker 04:
and Fish and Wildlife Service can comment through EPA.

[00:13:51] Speaker 05:
Florida says we disagree with your comments.

[00:13:54] Speaker 05:
What happens?

[00:13:56] Speaker 04:
Florida may disagree, but Fish and Wildlife Service's conclusions are determinative.

[00:14:01] Speaker 05:
That conclusion... No, Florida can still issue the permit.

[00:14:05] Speaker 04:
Then it would be in violation of the Memorandum of Agreement, but more importantly with Florida's rights.

[00:14:10] Speaker 04:
Because Florida's regulations specifically say that no permit shall be issued

[00:14:17] Speaker 04:
that jeopardizes the continued existence of endangered or threatened species or results in the destruction or adverse modification of habitat, and that compliance with any requirements resulting from technical assistance by the Fish and Wildlife Service shall be determinative for purposes of evaluating violations.

[00:14:37] Speaker 04:
And that's Florida Administrative Code 62-331.0533.

[00:14:46] Speaker 05:
Taking your- Say Florida just doesn't abide by it.

[00:14:50] Speaker 05:
It's a hypothetical.

[00:14:50] Speaker 05:
What would happen next?

[00:14:52] Speaker 05:
Abide by a comment from the Fish and Wildlife Service?

[00:14:56] Speaker 04:
Then Florida would not- Pull things, Your Honor.

[00:15:00] Speaker 04:
Florida would not be in compliance with its own regulations, with its memoranda of agreement, and with the biological opinion.

[00:15:06] Speaker 04:
So as to that individual permit, if there's an aggrieved party, they can challenge the permit in Florida State Court.

[00:15:14] Speaker 04:
under the Florida Administrative Procedure Act and say, this permit is arbitrary.

[00:15:18] Speaker 05:
Who would challenge that?

[00:15:19] Speaker 05:
Excuse me?

[00:15:19] Speaker 05:
Who would challenge that?

[00:15:21] Speaker 04:
I think an environmental group, a plaintiff who says, I go here, I recreate here, I don't think this is protective enough.

[00:15:29] Speaker 04:
The vision is not that Florida's permits will never be subject to suit.

[00:15:34] Speaker 04:
Congress envisioned that state permits would be subject to suit, but in state court.

[00:15:39] Speaker 04:
So Florida doesn't comply, plaintiff sue.

[00:15:42] Speaker 04:
And they say, look, Florida didn't comply.

[00:15:44] Speaker 04:
And that is a plain violation of Florida's regulations, not to mention the biological opinion and the memorandum of agreement.

[00:15:52] Speaker 04:
But also, if Florida is not complying, then EPA would have a basis to withdraw the program.

[00:15:58] Speaker 04:
Part of what Fish and Wildlife Service relied on in the biological opinion is EPA's ongoing oversight authority over the program.

[00:16:11] Speaker 06:
Judge Moss felt that this program, which relied on the decision in cooling water, which in turn relied on, I think it was in the 11th Circuit decision, felt that those decisions did not, well, the cooling water was inconsistent with the statute and regulations and that the 11th Circuit decision didn't really

[00:16:41] Speaker 06:
support this program either.

[00:16:44] Speaker 06:
This is at, you know, around 1349, 50, 51, pages, you know, 66, 69 or so of the opinion.

[00:16:59] Speaker 06:
Tell me how the district court was wrong in its analysis of the statute of regulations.

[00:17:10] Speaker 04:
Yes, Your Honor.

[00:17:11] Speaker 04:
So the district court erred because the Endangered Species Act says that you have to do a biological opinion.

[00:17:21] Speaker 04:
You have to ensure that you'll avoid jeopardy.

[00:17:24] Speaker 04:
And that's what Fish and Wildlife Service did here.

[00:17:27] Speaker 04:
And the Endangered Species Act says you have to rely on the best available science.

[00:17:31] Speaker 04:
And Fish and Wildlife Service said, we can't know.

[00:17:34] Speaker 04:
We don't know.

[00:17:36] Speaker 04:
So the best available data and science that we can rely on is a process here.

[00:17:41] Speaker 04:
And the Endangered Species Act doesn't preclude that.

[00:17:45] Speaker 04:
And Fish and Wildlife Service issued a biological opinion.

[00:17:49] Speaker 04:
It analyzed, do we think there will be take?

[00:17:51] Speaker 04:
And it said, yes.

[00:17:52] Speaker 04:
And under the Endangered Species Act, you have to issue an incidental take statement if you think there will be take.

[00:17:58] Speaker 04:
Judge Moss said that he didn't think cooling water intake was

[00:18:05] Speaker 04:
He distinguished it on the basis that it involved a regulation instead of a program approval, as we have here.

[00:18:11] Speaker 04:
But we think that was error.

[00:18:13] Speaker 04:
First, the services regularly issue biological opinions without engaging in rulemaking, and they act in accordance with those opinions, as do the agencies and applicants subject to them.

[00:18:24] Speaker 04:
Second, the record contains ample evidence of binding commitments, including memoranda of agreement, Florida's regulations, as we discussed earlier, and EPA's Clean Water Act oversight authority.

[00:18:36] Speaker 04:
we think Judge Moss erred in reading the statute and what it requires, particularly in harmony with the Clean Water Act.

[00:18:50] Speaker 05:
So your friends on the other side say, you say it was impossible for the Fish and Wildlife Service to know what the impacts would be, but apparently there is a sort of a robust history of approvals

[00:19:02] Speaker 05:
under the Clean Water Act by the Army Corps of Engineers.

[00:19:04] Speaker 05:
And there's plenty of data and information about which species have historically been implicated by some of these acts and the types of actions that have been submitted for approval.

[00:19:17] Speaker 05:
So why doesn't that undermine your argument that there was no way of knowing?

[00:19:22] Speaker 04:
For a couple of reasons, Your Honor.

[00:19:23] Speaker 04:
First of all, the Fish and Wildlife Service evaluated the data.

[00:19:27] Speaker 04:
It looked very carefully at the past.

[00:19:30] Speaker 04:
at the time, the past five years of permitting data from the Army Corps of Engineers.

[00:19:35] Speaker 04:
And it said, this helps us understand the types of permits we might see and helps us understand whether this process is structured sufficiently to be protective.

[00:19:45] Speaker 04:
But Fish and Wildlife Service, this is a one-time approval into perpetuity.

[00:19:48] Speaker 04:
And Fish and Wildlife Service said, we can't know forever how many permits might be issued, what types of activities, what the take might be in all the different

[00:20:00] Speaker 04:
assumed waters in the entire state of Florida.

[00:20:02] Speaker 04:
And frankly, Fishing Wildlife Service also acknowledged, we don't know what species might be listed 15 years from now.

[00:20:08] Speaker 04:
There could be different species listed.

[00:20:11] Speaker 04:
So it needed a process that would work long term into perpetuity.

[00:20:17] Speaker 04:
And Judge Moss said, well, they could look at the core data and say, here's a take limit for

[00:20:22] Speaker 04:
one species for a year.

[00:20:23] Speaker 04:
But that's not adequate for a number of reasons.

[00:20:27] Speaker 04:
First of all, the take is supposed to be incidental to the activity.

[00:20:32] Speaker 04:
Under the Endangered Species Act, you say, what is the activity that we think is going to happen?

[00:20:37] Speaker 04:
OK, how do we minimize that take?

[00:20:39] Speaker 04:
What is incidental to that specific activity?

[00:20:42] Speaker 04:
The Endangered Species Act doesn't say, let's say how many

[00:20:45] Speaker 04:
animals we can kill every year before we cause jeopardy no matter what.

[00:20:49] Speaker 04:
You're only supposed to do take incidental to the activity.

[00:20:52] Speaker 04:
And so that's what Fish and Wildlife Service was saying.

[00:20:54] Speaker 04:
We're going to look at every individual activity.

[00:20:57] Speaker 05:
Right.

[00:20:57] Speaker 05:
And I guess the whole purpose of that is you've made a no jeopardy determination.

[00:21:01] Speaker 05:
It assumes a certain amount of incidental take.

[00:21:04] Speaker 05:
And there's a provision that says, if it turns out your incidental take is higher than what we expected, there is a re-triggering mechanism where you have to consult again.

[00:21:16] Speaker 05:
This incidental take statement doesn't include anything like that, and therefore doesn't fulfill the purpose of the incidental take statement, does it?

[00:21:25] Speaker 04:
It does, Your Honor.

[00:21:26] Speaker 04:
You reinitiate consultation.

[00:21:29] Speaker 04:
So to your specific question.

[00:21:31] Speaker 04:
What's the trigger for reinitiating consultation?

[00:21:34] Speaker 04:
So Fish and Wildlife Service is going to set a limit for every individual permit.

[00:21:39] Speaker 04:
that will cause take some won't and with some they'll require measures to prevent any take.

[00:21:45] Speaker 04:
But for those that will fish and wildlife will set a limit and under condition special term and condition nine of the biological opinion.

[00:21:54] Speaker 04:
If that take limit is met, then Florida must reopen the permit and go back to Fish and Wildlife Service.

[00:22:03] Speaker 05:
It's an incidental take limit for a take limit.

[00:22:09] Speaker 04:
It's all the permits here are only allowing incidental take, take that is incidental to the activity.

[00:22:18] Speaker 05:
None of these permits allow.

[00:22:19] Speaker 05:
I guess normally wouldn't that be under section 10 of the Endangered Species Act that each individual permit would be subject to scrutiny?

[00:22:32] Speaker 04:
Um, I don't, I don't think so, your honor.

[00:22:35] Speaker 04:
I mean, if, if a federal agency had issued the permit and they said, you know, your take limit is five Eastern indigo snake and the federal agency said, Oh, we've hit five.

[00:22:46] Speaker 04:
You go back to the fish and wildlife service and you talk to them and hear what they're saying.

[00:22:51] Speaker 05:
But I guess what's, what's odd though is usually the consultation is with the agency under section seven.

[00:22:58] Speaker 05:
And so it's usually, you know, agency wants to take some kind of

[00:23:01] Speaker 05:
step or conduct, and it might affect any endangered species.

[00:23:06] Speaker 05:
They have to go through this consultation.

[00:23:07] Speaker 05:
And you're trying to take that process, which is about agency action and agency consultation, and you're trying to, it seems, shoehorn that into individual permits and letting individual permits, which usually would be evaluated under Section 10 on a case-by-case basis,

[00:23:24] Speaker 05:
But you're trying to get this broad take liability immunity from Section 7 and then shoehorn it or apply it to the individual permits, which should be going through a more extensive process under Section 10.

[00:23:38] Speaker 04:
I disagree, Your Honor.

[00:23:43] Speaker 05:
I don't think there is a usual in... Well, the purpose of Section 7 is for agency action, not individual permittee action, correct?

[00:23:54] Speaker 04:
The purpose of section seven is to ensure that agency actions authorized, conducted, or carried out.

[00:24:00] Speaker 04:
It applies to agency action.

[00:24:02] Speaker 04:
And EPA was taking an action.

[00:24:04] Speaker 05:
No, I understand.

[00:24:05] Speaker 05:
But then you're taking that sort of process.

[00:24:11] Speaker 05:
It's a section seven process which addresses agency action.

[00:24:14] Speaker 05:
And you're trying to find blanket take immunity for individual permits down the line.

[00:24:23] Speaker 05:
Which ordinarily, wouldn't they be subject to section 10 review, which is much more, I guess, thorough?

[00:24:32] Speaker 04:
A couple responses, Your Honor.

[00:24:35] Speaker 04:
First, I beg to differ that section 10 is more thorough than what we have here.

[00:24:41] Speaker 04:
But only three states have assumed 404 permitting authority.

[00:24:46] Speaker 04:
So I don't think we have an ordinarily.

[00:24:49] Speaker 04:
My understanding from the Fish and Wildlife Service is that none of the New Jersey permits have gone through Section 10, the Section 10 process.

[00:24:58] Speaker 04:
And my understanding is that in Michigan... Did they go through the Section 7 process?

[00:25:04] Speaker 05:
The permit applications in the other two states, did they go through a consultation and a Section 7 process?

[00:25:12] Speaker 05:
Because my understanding was the government had taken the position that these are

[00:25:17] Speaker 05:
not discretionary permits.

[00:25:19] Speaker 05:
So they normally wouldn't have gone through section seven analysis, except Florida asked them to make it discretionary so that they could go through this process and get this approval.

[00:25:31] Speaker 04:
So there's a couple pieces there, Your Honor, that I want to unpack first to the question about New Jersey's program specifically.

[00:25:37] Speaker 04:
There's a memoranda of agreement between New Jersey

[00:25:42] Speaker 04:
I think it's the New Jersey Department of Environmental Protection and the Fish and Wildlife Service, and they have agreed to coordinate and try to minimize and prevent any incidental take from the permits.

[00:25:54] Speaker 05:
But when New Jersey applied to take over the permitting process from the Army Corps, was there a consultation under Section 7?

[00:26:03] Speaker 04:
Yes, Your Honor.

[00:26:04] Speaker 04:
There was a consultation.

[00:26:06] Speaker 04:
For the permit application?

[00:26:09] Speaker 04:
For the permitting?

[00:26:10] Speaker 04:
Yes, Your Honor, it was informal consultation, so there was not an incidental take statement because there are many fewer listed species in New Jersey than in Florida.

[00:26:22] Speaker 04:
It's at JA2690, but it's the letter from the Fish and Wildlife Service.

[00:26:33] Speaker 04:
Basically, at J 2690, which is in volume nine, New Jersey said, we're going to work.

[00:26:40] Speaker 04:
We're relying on this memorandum of agreement.

[00:26:42] Speaker 05:
But there was a no jeopardy determination.

[00:26:44] Speaker 04:
Yes.

[00:26:45] Speaker 04:
Yes.

[00:26:45] Speaker 04:
And we're going to work.

[00:26:46] Speaker 04:
We're going to implement this memorandum of agreement and to ensure that protective measures happen and take is avoided altogether.

[00:26:55] Speaker 04:
But you can't avoid take altogether in Florida.

[00:26:58] Speaker 05:
Well, just to make sure I understand you, you're saying that when the state of New Jersey applied to take over the permitting process under Clean Water Act 404 from the Army Corps of Engineers, they submitted an application to do that.

[00:27:10] Speaker 05:
And there was a formal consultation or a consultation under Section 7 of the Endangered Species Act, and there was a finding that there would be no jeopardy to species?

[00:27:23] Speaker 05:
Yes, Your Honor.

[00:27:25] Speaker 05:
I thought you had to have an ITS if there's no different species.

[00:27:34] Speaker 04:
You have to have an incidental take statement if you think there will be take in New Jersey.

[00:27:40] Speaker 05:
They thought there'd be no take in New Jersey.

[00:27:42] Speaker 04:
Yes, Your Honor.

[00:27:43] Speaker 04:
They thought there would be no take in New Jersey.

[00:27:46] Speaker 04:
For example, the letter from the regional director of the Fish and Wildlife Service

[00:27:50] Speaker 04:
says, coordination under the memorandum of agreement is designed to eliminate adverse effects to the listed species and designated critical habitat.

[00:27:59] Speaker 04:
It then goes on to say, when this coordination process fails to eliminate take, the applicant must seek authorization under section 10.

[00:28:07] Speaker 04:
So in New Jersey, they anticipated that they would be able to.

[00:28:12] Speaker 04:
And you have to seek authorization under section 10.

[00:28:15] Speaker 04:
Which they have never done, is my understanding from Fish and Wildlife Service.

[00:28:18] Speaker 05:
But I guess the point is that is a

[00:28:20] Speaker 05:
protective measure that makes sure the endangered species act will be followed.

[00:28:24] Speaker 05:
And there's nothing like that in the Florida plan.

[00:28:29] Speaker 04:
The Florida plan, there isn't anything like, you have, if you know, so in New Jersey, they said, we don't think there's gonna be any take.

[00:28:36] Speaker 04:
We're gonna avoid it, which you can do in New Jersey.

[00:28:38] Speaker 04:
There's just many fewer listed species.

[00:28:40] Speaker 05:
But just in case, we would go under section 10 of the Endangered Species Act.

[00:28:44] Speaker 05:
The Florida plan, nowhere in the Florida plan does it ever say there's gonna be conformance with the regulations that interpret the Endangered Species Act about, you know, what you need in an incidental take statement.

[00:29:00] Speaker 04:
I beg to differ, Your Honor.

[00:29:01] Speaker 04:
Florida's memorandum of agreement with Fish and Wildlife Service.

[00:29:05] Speaker 04:
I thought you did agree.

[00:29:06] Speaker 05:
You just say it's substituting a process that's adequate.

[00:29:09] Speaker 05:
You agree that it's not going to go through all the steps that's required by regulation or statute for a take statement.

[00:29:18] Speaker 05:
You say it, I thought your position was they don't need to do that because they couldn't do that because they don't know and the process is adequate.

[00:29:24] Speaker 05:
I thought that was your position.

[00:29:26] Speaker 04:
Our position is that they're relying on a process and that process will include the steps when with each individual permit.

[00:29:36] Speaker 04:
The process will include the steps that you would have under section seven.

[00:29:42] Speaker 04:
So, for example,

[00:29:44] Speaker 04:
Fish and Wildlife Service said, we're going to do this process.

[00:29:47] Speaker 04:
We're going to look at the action area.

[00:29:49] Speaker 04:
We're going to look at the effects.

[00:29:51] Speaker 04:
We're going to look at cumulative effects.

[00:29:53] Speaker 04:
We're going to look at other actions in the area that might affect species.

[00:29:57] Speaker 04:
We're going to look at the amount of take.

[00:29:59] Speaker 04:
We're going to assess whether that will cause jeopardy.

[00:30:02] Speaker 04:
We're going to require mitigation measures to minimize, to avoid take.

[00:30:07] Speaker 04:
And if not, we can't avoid it, minimize it.

[00:30:09] Speaker 04:
We're going to look at the status of the species.

[00:30:12] Speaker 04:
The process that Fish and Wildlife Service laid out involves the same analytical rubric that you would have under section seven.

[00:30:20] Speaker 04:
We acknowledge it is not section seven because Florida is not a federal agency, but it involves the same analytical.

[00:30:26] Speaker 05:
So if these things are not complied with and there's a state in Florida court, which you indicated was the remedy.

[00:30:34] Speaker 05:
The student court, would that be about Florida is not complying with the MOU?

[00:30:42] Speaker 05:
It wouldn't be actually to vindicate the standards of the Endangered Species Act, correct?

[00:30:48] Speaker 05:
Because that's a federal statute and you're not doing that in Florida court, are you?

[00:30:54] Speaker 04:
I think the suit in Florida court would be you're not complying with your Florida regulations.

[00:31:00] Speaker 04:
and you're not complying with your Florida laws.

[00:31:03] Speaker 05:
Florida's regulations say that- So how does that vindicate the interests of the Endangered Species Act?

[00:31:11] Speaker 04:
Because the Endangered Species Act is about avoiding jeopardy, Your Honor.

[00:31:15] Speaker 04:
And they have a process here to ensure that every single state permit avoids jeopardy.

[00:31:24] Speaker 05:
And if there's a- And then if it doesn't, you say you can sue in Florida court.

[00:31:28] Speaker 05:
Yes.

[00:31:29] Speaker 05:
But what you can sue in Florida court for does not involve vindicating the Endangered Species Act.

[00:31:35] Speaker 04:
Well, Florida has adopted the same definitions of threatened and endangered species in jeopardy.

[00:31:39] Speaker 05:
But it doesn't vindicate the Endangered Species Act.

[00:31:41] Speaker 05:
So there's no requirement to comply with the Endangered Species Act.

[00:31:45] Speaker 04:
Florida's regulations say that we have to comply with Fish and Wildlife Services' determinations in the technical assistance process.

[00:31:53] Speaker 04:
And we cannot issue any permit that jeopardizes the continued existence of endangered threatened species.

[00:32:00] Speaker 05:
That there's no way to vindicate the actual Endangered Species Act.

[00:32:05] Speaker 04:
I do not agree, Your Honor.

[00:32:06] Speaker 05:
In Florida court?

[00:32:07] Speaker 05:
Florida courts can do that?

[00:32:09] Speaker 04:
Because Florida has adopted these regulations and these standards.

[00:32:12] Speaker 05:
But it's Florida law.

[00:32:13] Speaker 05:
It's not the federal law.

[00:32:15] Speaker 04:
Florida law has incorporated the same definitions.

[00:32:18] Speaker 04:
And in Florida State Court, you can say you aren't complying with the terms of the biological opinion issued under the Endangered Species Act.

[00:32:25] Speaker 05:
You cannot directly vindicate the Endangered Species Act in Florida Court in one of these suits that you propose are an adequate remedy.

[00:32:35] Speaker 04:
I'm going to have to disagree, Your Honor.

[00:32:38] Speaker 04:
I disagree because a plaintiff could say, you're not complying with the Florida regulations.

[00:32:44] Speaker 04:
You're not complying with this process.

[00:32:46] Speaker 04:
You're not complying with the biological opinion.

[00:32:48] Speaker 04:
And these permits or this permit is causing jeopardy or it's not doing enough to minimize take.

[00:32:57] Speaker 04:
you didn't adopt the Fish and Wildlife Service's protective measures.

[00:33:00] Speaker 04:
And let's say that a plaintiff says, Florida has done this.

[00:33:07] Speaker 04:
I'm so frustrated.

[00:33:08] Speaker 04:
They can also petition EPA and say, you need to withdraw Florida's program.

[00:33:13] Speaker 04:
So there are avenues for relief.

[00:33:20] Speaker 07:
Can I ask you, am I correct that the record reflects that somewhere between 90 and 98

[00:33:27] Speaker 07:
6% of the Florida's Clean Water Act permits do not involve incident pay.

[00:33:37] Speaker 04:
The majority of them do not.

[00:33:39] Speaker 04:
I don't know the specific percentage, Your Honor.

[00:33:42] Speaker 07:
Moss said a large percentage of these permits, additionally, will have no effect.

[00:33:47] Speaker 04:
Absolutely true.

[00:33:53] Speaker 04:
One final point, Your Honor.

[00:33:57] Speaker 04:
The United States, we think Florida raises valid points that plaintiffs lack standing and we would like to join their standing argument and I'll defer to Florida to present that further.

[00:34:08] Speaker 07:
We'll give you a couple minutes to reply, Mr. Street.

[00:34:12] Speaker 01:
Thank you, Your Honor.

[00:34:21] Speaker 01:
May I please the court?

[00:34:22] Speaker 01:
I would like to start with some of the questions that have been asked and then circle back to standing because I do think that standing is lacking under Crow Creek and Waterkeeper.

[00:34:32] Speaker 01:
But to go directly to some of the questions, first, Judge Wilkins, I think, put his finger on it that Judge Moss and my friends on the other side are directly and unapologetically asking for a circuit split with Waterkeeper, the only on-point case that addresses this type of programmatic consultation, where it's approval of a federal program that will be carried out by states issuing permits and doing a species-specific analysis at the state permit level.

[00:35:02] Speaker 01:
At turning to Judge Pan's questions, I want to start where your honor left off with the question about the Florida suit.

[00:35:10] Speaker 01:
And we very much agree with Ms.

[00:35:12] Speaker 01:
Jaffe that if you look at, for example, Florida Administrative Code 62-331.053,

[00:35:22] Speaker 01:
it directly incorporates the very Endangered Species Act standards and says Florida may not issue a permit that could cause jeopardy.

[00:35:31] Speaker 01:
That is stripped directly from the Endangered Species Act.

[00:35:35] Speaker 01:
Florida cannot issue a permit that fails to incorporate Fish and Wildlife Service or NMFS minimization conditions.

[00:35:43] Speaker 01:
That's the exact same thing that happens in the Section 7 process.

[00:35:48] Speaker 01:
The Corps consults with the Fish and Wildlife Service.

[00:35:51] Speaker 01:
It consults with NMFS.

[00:35:54] Speaker 01:
Those agencies give the Corps

[00:35:57] Speaker 01:
minimization recommendations.

[00:35:59] Speaker 01:
And the court, in fact, can either take them or not take them.

[00:36:01] Speaker 01:
Florida has to take them.

[00:36:03] Speaker 01:
So those ESA substantive standards are hardwired into the Florida regulations.

[00:36:08] Speaker 01:
And it's not only in the Florida regulations that are enforceable in Florida court.

[00:36:13] Speaker 01:
I would urge the court to take a look at page 2601, which is the biological opinion, and page 2668, which is later in the biological opinion.

[00:36:26] Speaker 01:
At 2601, it says Fish and Wildlife Service reviews each permit, quote, to ensure compliance with the Endangered Species Act.

[00:36:34] Speaker 01:
So Fish and Wildlife is directly applying ESA standards in its permit-specific analysis.

[00:36:42] Speaker 05:
I guess the issue here is, yes, perhaps some of the steps that Florida would take would be protective of endangered species.

[00:36:49] Speaker 05:
But to take a step back, we're talking about a statutory provision in the Endangered Species Act that talks about whether

[00:36:55] Speaker 05:
an agency is complying with the Endangered Species Act.

[00:36:59] Speaker 05:
And it defines certain steps that need to be taken to make a no jeopardy determination and then an incidental statement.

[00:37:09] Speaker 05:
And it seems, I don't think there's a dispute that these specific steps have not been taken in this case.

[00:37:17] Speaker 05:
And what is being argued is that it is reasonable to

[00:37:22] Speaker 05:
not take those steps and substitute those steps with a process that would be protective of endangered species.

[00:37:28] Speaker 05:
But I'm just having trouble seeing why that's allowed.

[00:37:32] Speaker 01:
Sure.

[00:37:32] Speaker 01:
A few points on that, Your Honor.

[00:37:34] Speaker 01:
First of all, I think our brief walks through the textual analysis of why what the agencies did here does comply with the strict terms of the statute.

[00:37:44] Speaker 01:
And that's for a couple of reasons that the text gives us.

[00:37:48] Speaker 01:
The text uses very broad terms like specify the impact on the species.

[00:37:54] Speaker 01:
detail the effects on the species and also very broad terms that all of those have to be done in light of the best available data there.

[00:38:03] Speaker 01:
So it's a very flexible standard.

[00:38:06] Speaker 05:
But isn't it true that in this program, your position is we couldn't do that because we're talking about a bunch of permits in perpetuity.

[00:38:15] Speaker 05:
So we don't know what the exact effects are as we sit here today.

[00:38:19] Speaker 05:
And we don't the best available data doesn't tell us that and so we can dispense with those requirements and instead in the future we will take care of this.

[00:38:28] Speaker 01:
That is not our argument your honor and I think our argument is exactly what the second circuit said in cooling water which is that.

[00:38:35] Speaker 01:
The process does specify the impact on species because our goal, and I think it's important to take a step back as you suggested and look at what the goal of that Section 7 analysis is.

[00:38:47] Speaker 01:
It's to determine whether jeopardy will occur as to any particular species.

[00:38:51] Speaker 01:
Now, as Your Honor points out, in the ordinary context, that's easy, right?

[00:38:56] Speaker 01:
You've got a discrete permit.

[00:38:57] Speaker 01:
It might affect one or two species.

[00:39:00] Speaker 05:
The discrete agency action.

[00:39:03] Speaker 01:
Yes, discrete agency action, which could be like a federal pipeline or anything like that.

[00:39:08] Speaker 01:
It's in one area.

[00:39:09] Speaker 01:
They look at the species.

[00:39:11] Speaker 01:
They try to evaluate the effect.

[00:39:12] Speaker 01:
They give an incidental take limit.

[00:39:14] Speaker 01:
But that's not the only type of action that's covered by Section 7.

[00:39:18] Speaker 01:
Section 7 action is defined in the regulations to also include authorization of a program.

[00:39:26] Speaker 01:
So when you are evaluating the effects of a program,

[00:39:30] Speaker 01:
and you're detailing the impact on species of a program, you are, by definition, not going to be able to look at the species specific level when it's a program that encompasses an entire state, 200 plus species, scores of different types of permitted activities running from mining to residential construction.

[00:39:49] Speaker 01:
So the type of analysis that you do has to mirror the type of action that's being analyzed.

[00:39:54] Speaker 01:
I think that's what the Second Circuit said.

[00:39:56] Speaker 05:
But it wouldn't be impossible, for example, to have a program that says we will approve Florida taking over this permitting process and any individual permits will be subject to Section 10.

[00:40:11] Speaker 01:
So let's talk about that.

[00:40:12] Speaker 01:
I think that that was a theme in your honor's earlier questioning.

[00:40:15] Speaker 01:
First of all,

[00:40:18] Speaker 01:
The first question that has to be asked is, is there an agency action?

[00:40:22] Speaker 01:
I think everybody agrees there's an agency action when EPA is approving the assumption of Florida's program.

[00:40:30] Speaker 01:
So once you get on the Section 7 track, there are certain things that you have to do.

[00:40:34] Speaker 01:
One, you have to analyze the effects of the species and determine whether or not there's jeopardy.

[00:40:40] Speaker 01:
The agencies found no jeopardy here.

[00:40:43] Speaker 01:
But if you find effects, potential adverse effects and incidental take, then you have to issue an incidental take statement.

[00:40:50] Speaker 01:
You just simply have to do that.

[00:40:52] Speaker 01:
So everybody agrees here that you have to go onto the Section 7 track at the outset.

[00:40:57] Speaker 01:
I think where my friends differ is that they want to cut out that incidental take statement and say, no, go ahead and go down the Section 7 track.

[00:41:06] Speaker 01:
And Your Honor, I want to point out that I think as Ms.

[00:41:08] Speaker 01:
Jaffe mentioned,

[00:41:11] Speaker 01:
At the broader level, under the New Jersey program, New Jersey, it actually did a consultation.

[00:41:19] Speaker 01:
It was just an informal consultation.

[00:41:21] Speaker 01:
So there's no dispute that when the agencies are approving an EPA assumption, absolutely has to consult and take into account species.

[00:41:29] Speaker 01:
The question is whether you go to the formal consultation because there are going to be effects.

[00:41:34] Speaker 01:
Now, I think the point was made about that.

[00:41:36] Speaker 05:
But isn't it correct that they could approve New Jersey taking over that permitting system and say that there's no jeopardy because they know that individual permits are going to have to comply with Endangered Species Act?

[00:41:53] Speaker 01:
Well, I don't think that's why they approved a no effect determination in New Jersey.

[00:42:00] Speaker 01:
I think it was

[00:42:02] Speaker 05:
We don't have a lot of record evidence on it, but I think it was because there were... But there was no blanket incidental take by liability protection in New Jersey.

[00:42:09] Speaker 01:
Correct.

[00:42:09] Speaker 01:
Correct.

[00:42:10] Speaker 01:
But that's because, again, they did not make a determination that there would be incidental take.

[00:42:16] Speaker 01:
So let me just back up just for a second.

[00:42:19] Speaker 01:
When the Army Corps has been running this program previously, it's been issuing the Section 404 permits.

[00:42:25] Speaker 01:
As Judge Henderson alluded to, the record shows that when the Army Corps has been issuing these permits in Florida, 7% of them do involve incidental take.

[00:42:34] Speaker 01:
So when Florida is taking over this program, it's not some gerrymandered alternative route.

[00:42:40] Speaker 01:
When Florida is taking over the program, it's also going to have incidental take because they're going to be applying the same standards.

[00:42:45] Speaker 01:
So because Section 7 requires an incidental take statement, if incidental take is to be anticipated from the federal action, it has to have an incidental take statement.

[00:42:56] Speaker 01:
Now what we did and what we did in collaboration with the agencies is we built in all of those same Endangered Species Act standards

[00:43:04] Speaker 01:
And we built in incidental take limits into the state issued permits.

[00:43:09] Speaker 01:
And what the Florida regulations say is that Florida will send these permits to Fish and Wildlife Service and Fish and Wildlife Service will establish for each permit an incidental take limit.

[00:43:22] Speaker 01:
And that is going to be binding on Florida through a suit in Florida State Court.

[00:43:27] Speaker 01:
And so it's operating exactly the same as it would if the Corps consulted with Fish and Wildlife, issued the permit, and it has an incidental take statement.

[00:43:37] Speaker 01:
The only different incidental take limit.

[00:43:39] Speaker 01:
The only difference is it's going to be enforceable in the first instance in Florida State Court instead of in Florida Federal Court.

[00:43:46] Speaker 01:
But that's not a bug.

[00:43:48] Speaker 01:
That's a feature of the Section 404 program.

[00:43:51] Speaker 01:
Congress wanted states to take over the 404 program.

[00:43:54] Speaker 01:
And if you have states issuing the permits,

[00:43:57] Speaker 01:
inherent instead of going through section seven on a permit by permit basis, inherent in that is that enforcing those standards is going to be done in state court, not in federal court.

[00:44:07] Speaker 05:
I think the bug is that the section seven consultation addresses the EPA's approval of this whole program.

[00:44:17] Speaker 05:
And the bug is that EPA is approving this program

[00:44:24] Speaker 05:
which includes approving state-by-state permits or at least making them eligible for the take liability protection.

[00:44:33] Speaker 05:
And then you're saying later on down the line, Florida is going to do all these things.

[00:44:39] Speaker 05:
That's going to make it OK.

[00:44:41] Speaker 05:
But the bug in the system is that Section 7 is supposed to deal with EPA and EPA's conduct in approving this.

[00:44:49] Speaker 05:
And EPA isn't complying if it's relying on a process that it can't really control anymore

[00:44:54] Speaker 05:
It's going to go to a state court.

[00:44:56] Speaker 05:
It's just no longer part.

[00:44:58] Speaker 05:
I mean, I know you're going to say Fish and Wildlife Service is going to be involved.

[00:45:02] Speaker 05:
But the bug in the system is this is a process that's supposed to address agency action.

[00:45:09] Speaker 05:
And all the action is happening at the state level with individual permittees.

[00:45:13] Speaker 05:
And it doesn't seem to me that this process is designed to address state by state permit, take statements, et cetera.

[00:45:22] Speaker 05:
That's just not what's contemplated.

[00:45:24] Speaker 05:
by an overarching statutory structure and scheme that's supposed to protect endangered species at the federal level.

[00:45:31] Speaker 01:
Your honor, I don't think anyone disputes that states can take over permitting

[00:45:38] Speaker 01:
that would otherwise be done under Section 7.

[00:45:40] Speaker 01:
That means it has to be outside of Section 7, right?

[00:45:42] Speaker 01:
Absolutely.

[00:45:43] Speaker 05:
And there have to be compliance with the ESA independently without having it all in one program.

[00:45:47] Speaker 01:
Right.

[00:45:48] Speaker 01:
And that was exactly the same as in cooling water, where you had the states having to issue the 402 permits.

[00:45:55] Speaker 01:
And these very same plaintiffs were there in front of the Second Circuit and made that exact same argument.

[00:46:00] Speaker 01:
And the Second Circuit said, well,

[00:46:04] Speaker 01:
When the states take over permitting, of course it's outside of Section 7.

[00:46:08] Speaker 01:
So we look at the process and make sure that the technical assistance process is mandatory and hardwired into the biological opinion, that it was the basis for approving that state program in that case, and that it would be enforceable.

[00:46:23] Speaker 01:
And because you have to have these permits issued by the states, that's ultimately the question.

[00:46:28] Speaker 05:
Is there protection, like, I guess, prospective protection from take liability in the cooling water instance?

[00:46:36] Speaker 01:
Yes.

[00:46:37] Speaker 01:
Yes, it's exactly the same.

[00:46:39] Speaker 01:
In fact, this was quite self-consciously modeled on the cooling water biological opinion and the incidental take statement.

[00:46:47] Speaker 05:
Was that case, though, about a different section of the Clean Water Act?

[00:46:51] Speaker 05:
That's my recollection.

[00:46:52] Speaker 01:
Yes, it was about the regulation of cooling water intake structures and the parameters of what those had to have in them and how protective they had to be.

[00:47:02] Speaker 01:
And then the states would issue the permits and do the permit by permit species analysis with the permit by permit take limits in those.

[00:47:11] Speaker 01:
So it's really

[00:47:12] Speaker 01:
Yes, it's a different statute.

[00:47:14] Speaker 01:
It's a different program, but it's the same idea of a federal authorization that will be carried out through state permitting.

[00:47:20] Speaker 01:
In fact, not just any state permitting, but permitting under 402, which is, of course, the sister provision of 404.

[00:47:26] Speaker 01:
And I think, Judge Pan, your question was getting at, well, Section 10,

[00:47:33] Speaker 01:
Isn't that the right way to go?

[00:47:34] Speaker 01:
And I think if you think about what that means, then it would be a massive disincentive for states to ever go through the 404 assumption process, because they wouldn't be able to offer the same incidental take protection that the federal government would be able to through the Section 7.

[00:47:52] Speaker 05:
I don't think the 404 permitting process is intended to address the Endangered Species Act.

[00:47:57] Speaker 01:
Oh, your honor, I would strongly disagree with that.

[00:48:01] Speaker 01:
I would look at 40 CFR 233.23A.

[00:48:05] Speaker 05:
But I mean the permitting, like taking it over.

[00:48:08] Speaker 05:
I mean, it just seems like an underlying assumption, correct me if I'm wrong, that you're making is that 404 is a way for us to more efficiently comply with the

[00:48:23] Speaker 05:
Endangered Species Act for all of these permits.

[00:48:25] Speaker 05:
Of course, all the permits have to comply with Endangered Species Act.

[00:48:28] Speaker 05:
But isn't the default that we have two independent statutes here, the Clean Water Act and the Endangered Species Act, you got to comply with both of them.

[00:48:36] Speaker 05:
No, you're trying to do something to make it more efficient.

[00:48:38] Speaker 05:
We're going to make one program that deals with all of this in one program.

[00:48:44] Speaker 01:
No, Your Honor, I disagree with that.

[00:48:45] Speaker 01:
And I don't hear my friends on the other side to disagree with the concept that a Section 404 assumption requires EPA to consider whether the state assumption program will comply with the Endangered Species Act.

[00:49:01] Speaker 05:
Then why is it, maybe you're not the right person to ask, why is it that previous to this proceeding,

[00:49:07] Speaker 05:
government consider this the 404 permitting a non-discretionary act which wouldn't be subject to any of this section seven console right so non-discretionary is a slightly

[00:49:19] Speaker 01:
misleading term in this context.

[00:49:21] Speaker 01:
I think the court should look at the Home Builders case, of course, which talked about this and found that Section 402 did not require consultation with Fish and Wildlife Service.

[00:49:31] Speaker 01:
And the reason there is because Congress gave nine requirements that states have to meet in order to comply with Section 402 and take over the permitting of point source discharges

[00:49:43] Speaker 01:
And Congress said, the court and homebuilders said, we can't add on a tenth, which is consulting regarding species.

[00:49:50] Speaker 01:
But under Section 404, a state cannot assume control of Section 404 permitting unless it shows that it has a program that can comply with the Section 404 B1 guidelines.

[00:50:02] Speaker 01:
In other words, it has to show that it can do the same thing that the Corps does when it comes to protecting species.

[00:50:07] Speaker 01:
I think 40 CFR 233.23a spells that out most expressly.

[00:50:14] Speaker 01:
It says the states have to show that they're able to ensure compliance.

[00:50:18] Speaker 01:
And if you look at, for example, the withdrawal of assumption authority that EPA can do, one reason is that they're failing to protect species.

[00:50:27] Speaker 01:
The states are failing to protect species.

[00:50:30] Speaker 01:
So if I could then I would turn to standing briefly and I think Crow Creek and Waterkeeper are the key cases here and they stand for the proposition that when the federal government authorizes the states to run a program under federal standards, federal law standards or under ongoing federal oversight, it's going to be extremely difficult for a plaintiff to ever show standing.

[00:50:59] Speaker 01:
And that's exactly what we have here.

[00:51:02] Speaker 01:
As I detailed earlier, the ESA standards continue to apply through the Florida consultation with the Fish and Wildlife Service.

[00:51:12] Speaker 01:
And so for the plaintiff's interest to ever be injured, and of course their interests are viewing species and studying species,

[00:51:21] Speaker 01:
They would have to show that the take incidental take would be more likely to occur under Florida's program, substantially more likely to test for procedural injury, substantially more likely to assume that they're correct for purposes of standing.

[00:51:34] Speaker 05:
And they're saying that your program is less protective of species.

[00:51:38] Speaker 05:
So there'll be few of them that affects our interest.

[00:51:41] Speaker 01:
So two answers to that, Your Honor.

[00:51:44] Speaker 01:
I think that their merits analysis that the court has to assume for purposes of standing is exactly what Judge Moss found.

[00:51:51] Speaker 01:
He did not find his basis for rejecting the biological opinion was not that the Florida technical assistance process was less protective.

[00:52:01] Speaker 01:
His basis was that the biological opinion needed to be more detailed with respect to species.

[00:52:07] Speaker 01:
a species-specific analysis projecting it decades into the future, that there needed to be take limits in the biological opinion itself, and that the technical assistance process itself was just not a lawful way to satisfy Section 7.

[00:52:24] Speaker 01:
The merits of the case are not about whether the technical assistance process is good or bad or equal to Florida law.

[00:52:30] Speaker 01:
And even if that were part of their merits case,

[00:52:34] Speaker 01:
I think Crow Creek answers this because the plaintiffs there made the exact same argument.

[00:52:39] Speaker 01:
They said the federal government is just not going to be able to enforce the laws much.

[00:52:44] Speaker 01:
Federal law will not apply with the same force on those transferred lands.

[00:52:48] Speaker 01:
And the court just said that's not what the statute says.

[00:52:51] Speaker 01:
So to the extent the court thinks it has to look at it, I've given all of the citations that say this program complies with the substantive standards of the ESA and the Clean Water Act.

[00:53:02] Speaker 01:
And not only that, not only those substantive standards continue to apply, but you have two federal actors ensuring that they continue to apply.

[00:53:12] Speaker 01:
Every permit goes to Fish and Wildlife Service to ensure no jeopardy and to give minimization measures.

[00:53:19] Speaker 01:
And even if even official wildlife service were to somehow drop the ball, even if Florida were to drop the ball on its own duty to comply with official wildlife service recommendations and to ensure no jeopardy.

[00:53:31] Speaker 01:
We haven't really talked about EPA, but EPA has an independent statutory and regulatory duty

[00:53:38] Speaker 01:
to review these permits and object to them if they would cause jeopardy, if there's a risk of them causing jeopardy.

[00:53:46] Speaker 01:
And if they object, Florida cannot issue those permits.

[00:53:50] Speaker 01:
Those permits have to go to, Florida has to either resolve EPA's objections or those permits will get transferred right back to the Corps and we'll go back to the old Section 7 process for that permit.

[00:54:01] Speaker 01:
Even if all of those processes broke down, the permit will not issue until a Florida administrative challenge is heard.

[00:54:09] Speaker 01:
So plaintiffs would have the opportunity to go into court, point to that Florida regulation that I quoted, and say to the Florida court, this permit will cause jeopardy,

[00:54:21] Speaker 01:
It does not include the Fish and Wildlife Service Minimization Measures.

[00:54:25] Speaker 01:
They would have a lock cinch case that that permit would violate Florida law, and that permit would never take effect, and you would never have the increased take that the plaintiffs are worried about.

[00:54:36] Speaker 01:
And not only that, they can build their own administrative record in the Florida proceeding.

[00:54:40] Speaker 01:
They can build the record.

[00:54:41] Speaker 01:
It's not limited to what was before the permitting agency.

[00:54:44] Speaker 01:
So I think when you walk through all of those steps of contingencies that would have to break down before you would ever have a permit issued, it is hugely speculative.

[00:54:55] Speaker 01:
And so I think we're in the same position where we were in Crow Creek.

[00:54:59] Speaker 01:
where this is really, there's no standing to challenge the approval of the program.

[00:55:04] Speaker 01:
And in Waterkeeper as well, which of course was a state coal ash permitting program.

[00:55:10] Speaker 01:
And the court said, it's speculative to think that a coal ash permit will ever be issued in a quote, less environmentally friendly way than it would have under the federal system.

[00:55:22] Speaker 01:
That's the standard.

[00:55:23] Speaker 01:
It's totally speculative here as well.

[00:55:26] Speaker 01:
So the remedy, we've talked a little about what's the remedy if the process breaks down.

[00:55:31] Speaker 01:
Number one, EPA can federalize the permit.

[00:55:35] Speaker 01:
Number two, you go into state court and enforce these same federal law standards.

[00:55:41] Speaker 01:
Number three, my friends could petition the EPA to withdraw the assumption of the program.

[00:55:48] Speaker 01:
It's not working like it was supposed to work.

[00:55:51] Speaker 01:
It's not protecting species.

[00:55:53] Speaker 01:
And that would be reviewable in this court as well.

[00:55:56] Speaker 01:
And finally, I would say at page 72, Waterkeeper suggests that there would also be a Federal Endangered Species Act citizen suit against any actor who does not comply with the regulations issued pursuant to this program.

[00:56:12] Speaker 01:
So I think there is that backstop as well of getting into federal court.

[00:56:18] Speaker 01:
I don't want to wear out my welcome, but if there are any further questions,

[00:56:23] Speaker 07:
actually give you a couple of minutes in reply.

[00:56:25] Speaker 07:
Thank you.

[00:56:27] Speaker 07:
Right.

[00:56:40] Speaker 02:
Thank you, Your Honours, May please support Christina record on behalf of the environmental Apple ease.

[00:56:46] Speaker 02:
I would like to start by addressing a few points that were raised during questioning of the other side and then

[00:56:51] Speaker 02:
move into our affirmative case regarding this illegal action.

[00:56:57] Speaker 02:
Why don't you start with standing, please?

[00:56:59] Speaker 02:
Yes, Your Honor.

[00:57:00] Speaker 02:
Standing here for plaintiffs was clearly established and found by Judge Moss.

[00:57:05] Speaker 02:
None of the factual findings that underlie that standing have been challenged by the other side.

[00:57:10] Speaker 02:
And in reality, what happened here is that EPA approved a program that was fundamentally less protective of endangered species.

[00:57:18] Speaker 02:
And as long as that program operated as it was designed,

[00:57:20] Speaker 02:
and approved, our members' aesthetic and recreational interests would be harmed.

[00:57:26] Speaker 02:
And although we were not required to do so, we even included in our declarations particular permits that were originally before the Army Corps of Engineers and then were transferred to the state of Florida after approval that would harm those interests in particular for the Florida panther and other listed species.

[00:57:52] Speaker 06:
You're saying that factual findings that were made in the district court counter what your friend on the other side has made as far as the significance of the Pro Creek and Waterkeeper decision.

[00:58:09] Speaker 02:
Yes, Your Honor.

[00:58:10] Speaker 02:
One of the things that Judge Moss found in his analysis of standing is that the technical assistance process is woefully

[00:58:17] Speaker 02:
willfully less protective than the Endangered Species Act because it does not, in fact, contain the particular requirements that were omitted at the programmatic level.

[00:58:27] Speaker 02:
For example, there is no requirement to analyze baseline status of species.

[00:58:31] Speaker 02:
There's no requirement for Fish and Wildlife Service to analyze the effects of individual permits.

[00:58:36] Speaker 02:
Fish and Wildlife Service is not required to actually create incidental take limits, only to quantify take.

[00:58:42] Speaker 02:
And there is no requirement

[00:58:45] Speaker 02:
Even if all of those things happen and there is a permit condition that creates a take limit, permittees are covered under the ITS because there's no terms and conditions that cover their behavior.

[00:58:57] Speaker 02:
And under 16 USC 1536O, that activity would still be authorized and covered under this incidental take exemption.

[00:59:06] Speaker 02:
And so as long as that program operates as it was designed, without any intervening speculative activity, these harms will occur.

[00:59:18] Speaker 05:
How did the declarations you just mentioned concretely illustrate this?

[00:59:22] Speaker 02:
So for the declarations at J.A.

[00:59:26] Speaker 02:
315 to 318 for the Conservancy of Southwest Florida identified a permit known as Belmar, which was originally going through a section 10 permitting process in Florida for an Army Corps permit was transferred to the state of Florida and those developers

[00:59:45] Speaker 02:
Abandoned section 10 in lieu of the technical assistance process because it was easier for them to go through and so miss.

[00:59:54] Speaker 02:
Our declarant identified her interests in Panthers that regular this area and the harm that would occur as this development went forward was the destruction of not only primary Panther habitat, which is the most essential to their survival and recovery.

[01:00:10] Speaker 02:
but likely incidental take of Panthers through getting hit by cars because of the increased traffic that would come along with this development.

[01:00:18] Speaker 02:
This project was essentially building a new town in Southwest Florida and so the size and scope of that activity would lead to incidental take of Panthers.

[01:00:27] Speaker 02:
There's also additional examples that I can point to at J303.

[01:00:31] Speaker 05:
I'm sorry, so it's the idea that there would be incidental take and under the Florida program they would have

[01:00:39] Speaker 05:
I guess, protection from liability, whereas if they had gone through section 10, they wouldn't until they'd gone through the whole thing.

[01:00:45] Speaker 02:
Yes, Your Honor.

[01:00:46] Speaker 02:
And also, there was likely more take that would occur, more harm that would occur under the state program because they wouldn't have to go through the protective process that the Endangered Species Act creates, which likely would lead to a more protective permit setting aside additional areas that could not be developed, creating incidental take limits, creating traffic overpasses,

[01:01:08] Speaker 02:
to prevent Panthers from being struck by vehicles, and those kinds of things that happen when the Corps is engaging in Section 7 consultation.

[01:01:16] Speaker 02:
Turning to the merits, I want to start by just laying the groundwork on some of the discussion that was occurring about Section 7 versus Section 10.

[01:01:29] Speaker 02:
First of all, Section 7 consultation doesn't occur for every

[01:01:34] Speaker 02:
um, federal agency action.

[01:01:36] Speaker 02:
It's only when that action is discretionary.

[01:01:37] Speaker 02:
And we agree that EPA's approval is a discretionary action for a 404 program.

[01:01:43] Speaker 05:
However, why do you agree on that?

[01:01:45] Speaker 05:
Because for a long time they had a longstanding policy that it wasn't, and it seems like they asked for it to be deemed discretionary in order to approve this program.

[01:01:53] Speaker 02:
Yes, your honor.

[01:01:55] Speaker 02:
Um, originally, so for example, in New Jersey, they did engage in section seven consultation after home builders came out, EPA changed position and said,

[01:02:03] Speaker 02:
that it was no longer considering 404 approvals discretionary actions.

[01:02:07] Speaker 02:
And so it wouldn't engage in consultation.

[01:02:10] Speaker 02:
And the reason that that is, I think, true based on the homebuilders decision is in the 404 program, there is a requirement to ensure that no permit would jeopardize species.

[01:02:19] Speaker 02:
Not that they comply with the Endangered Species Act, but they have to ensure that any state permit would not jeopardize listed species.

[01:02:26] Speaker 02:
And that's not present in the 402 program.

[01:02:30] Speaker 02:
as far as whether formal consultation must occur.

[01:02:34] Speaker 02:
And that is where there is actually a jeopardy determination.

[01:02:37] Speaker 02:
That is where an incidental take statement is created.

[01:02:39] Speaker 02:
That is where a biological opinion is created.

[01:02:42] Speaker 02:
That only happens if Fish and Wildlife Service concludes that the federal agency action is likely to adversely affect listed species.

[01:02:50] Speaker 02:
When New Jersey was going through its process, EPA initially concluded that there was not likely to be an adverse effect to listed species.

[01:02:59] Speaker 02:
Fish and Wildlife Service disagreed, and they went through a process to create the protections that are in place in the MOU for New Jersey.

[01:03:06] Speaker 02:
Those protections include Fish and Wildlife Service has to make effects determinations.

[01:03:11] Speaker 02:
They have to make jeopardy determinations.

[01:03:13] Speaker 02:
If a permit is likely to adversely affect species, EPA has to object to that permit.

[01:03:20] Speaker 02:
And if the state is not able to overcome that objection, the permit is then sent to the Army Corps of Engineers for processing.

[01:03:27] Speaker 02:
which means that it engages in section seven consultation.

[01:03:30] Speaker 02:
And if there is any dispute between the state and EPA on jeopardy or take, EPA must object to that permit as well.

[01:03:38] Speaker 02:
If it is not resolved by the state, it must go to the Army Corps of Engineers.

[01:03:42] Speaker 02:
And it's also true that Fish and Wildlife Service said that any incidental take that would occur in the New Jersey process must be addressed by either section seven, if it's issued by the Army Corps of Engineers,

[01:03:54] Speaker 02:
or through section 10 if it is issued by the state of New Jersey.

[01:03:57] Speaker 02:
And so because those protections were in place, Fish and Wildlife Service concluded there was not likely to be adverse effects.

[01:04:04] Speaker 02:
They did not need to issue a biological opinion.

[01:04:07] Speaker 02:
They did not need to issue an incidental take statement at the programmatic level.

[01:04:11] Speaker 02:
And one thing I will note is that in Florida's request for a limited stay before the district court, they stated that they could apply a New Jersey style program in Florida.

[01:04:25] Speaker 02:
Second, on to what happened here.

[01:04:29] Speaker 02:
So they determined that EPA's action was likely to adversely affect listed species.

[01:04:34] Speaker 02:
However, they did not do any of the analyses that are required to underlie a no jeopardy decision.

[01:04:39] Speaker 02:
The regulations are very clear.

[01:04:41] Speaker 02:
The Fish and Wildlife Service must analyze the baseline status of species, add the effects of the federal agency action to that baseline to determine if there is jeopardy.

[01:04:51] Speaker 02:
They did not do that here.

[01:04:53] Speaker 02:
In addition, Fish and Wildlife Service must first determine that it is reasonably certain that incidental take is likely to occur, not that they think that incidental take is going to occur, but that it's reasonably certain before they can issue an ITS.

[01:05:07] Speaker 02:
Here they said they did not have sufficient data to know what would happen under the state program, but they still had to have concluded that it was reasonably certain that take would occur.

[01:05:15] Speaker 02:
Then they decided to issue a broad incidental take statement

[01:05:20] Speaker 02:
that authorized an unlimited amount of take for the state program as long as it lived.

[01:05:25] Speaker 02:
Congress never intended the Endangered Species Act to operate as this kind of a blank check.

[01:05:31] Speaker 02:
Second, the Endangered Species Act is designed to accommodate and address the exact uncertainty that occurs in most programmatic consultations.

[01:05:40] Speaker 02:
It requires the wildlife agencies to do an initial analysis based on the best information that they have.

[01:05:46] Speaker 02:
and not the best available, not the best possible data that could exist.

[01:05:51] Speaker 02:
And so they did not need to know all of the impacts that could possibly occur for the life of this program in order to do this analysis.

[01:05:58] Speaker 02:
They just had to do the best they could.

[01:06:00] Speaker 02:
And based on that analysis, there would be also a requirement for them to reinitiate consultation if new information comes to light 10, 15, 20 years down the road that shows that this analysis is no longer accurate.

[01:06:14] Speaker 02:
For example,

[01:06:15] Speaker 02:
Right now, development pressure is very concentrated in southwest Florida.

[01:06:19] Speaker 02:
That's the last remaining home of the Florida panther.

[01:06:22] Speaker 02:
And so right now, if they did this analysis based on historical data, they could show that, OK, in southwest Florida, we know that panther is going to be impacted.

[01:06:30] Speaker 02:
We know there's only 230 of them left.

[01:06:33] Speaker 02:
And we know that this is their last remaining occupied habitat.

[01:06:36] Speaker 02:
We can take that information and say, historically, these permits show that, on average, three panthers are taken a year.

[01:06:43] Speaker 02:
that seems like a reasonable amount of take that we can create a take limit for.

[01:06:47] Speaker 02:
Or we know that annually 30,000 acres of this habitat are destroyed.

[01:06:52] Speaker 02:
Let's think about what that would mean if that continued for 20 years down the future.

[01:06:57] Speaker 02:
They didn't do that analysis here.

[01:06:58] Speaker 02:
And so there's no actual protection for the panther under the state program.

[01:07:03] Speaker 02:
And it allows the kind of piecemeal destruction of our habitat that the ESA was designed to prevent.

[01:07:11] Speaker 05:
And so they say that they're going to

[01:07:13] Speaker 05:
have incidental take limits in each permit.

[01:07:17] Speaker 05:
And I guess, doesn't that end up with a higher aggregate amount of incidental take?

[01:07:23] Speaker 05:
Because of each permit, they have to allow somebody to have some incidental take.

[01:07:27] Speaker 05:
The numbers are going to add up higher, aren't they?

[01:07:30] Speaker 02:
Yes, Your Honor.

[01:07:31] Speaker 02:
And first, I will say that the technical assistance process does not require them to create permit level incidental take limits.

[01:07:38] Speaker 02:
It does only require Fish and Wildlife Service to quantify.

[01:07:41] Speaker 02:
for an individual permit, which they have done.

[01:07:45] Speaker 02:
It doesn't require that to be a binding limit on the permittee.

[01:07:49] Speaker 02:
On the second point, this is exactly the situation that the district court in DC dealt with in Brownlee, which addressed the Army Corps' decision to issue a nationwide permit in Florida that affected the Panther.

[01:08:01] Speaker 02:
but they fail to do a programmatic consultation.

[01:08:04] Speaker 02:
And the court recognized that a comprehensive programmatic consultation is necessary to avoid this kind of a piecemeal destruction, this death by a thousand cuts for the panther.

[01:08:17] Speaker 02:
Another point I'd like to turn to now is about the technical assistance process itself.

[01:08:21] Speaker 02:
Because in reality, when you look at the language of the technical assistance process, it doesn't include the things that they fail to do at the programmatic level, as I said.

[01:08:30] Speaker 02:
There's no baseline analysis.

[01:08:31] Speaker 02:
There's no requirement to use the best available science.

[01:08:34] Speaker 02:
There's no requirement for them to do an effects analysis.

[01:08:37] Speaker 02:
And so even if it is binding on Fish and Wildlife Service, it doesn't actually stand in for adequate programmatic consultation.

[01:08:45] Speaker 02:
And so that means the consultation did not occur at the programmatic level, and it would not occur at the site-specific level.

[01:08:58] Speaker 02:
And finally, I'd like to address cooling water.

[01:09:00] Speaker 02:
So first of all, as you asked Judge Wilkinson, we agree that cooling water was wrongly decided, but we don't think the court needs to reach that issue.

[01:09:09] Speaker 02:
It was also decided under fundamentally different factual circumstances.

[01:09:14] Speaker 02:
It was not about the approval of a state for a state wetlands or a state Clean Water Act program.

[01:09:20] Speaker 02:
It was about EPA promulgating a rule intended to protect fish species from harm that occurs at

[01:09:28] Speaker 02:
402 discharge points.

[01:09:31] Speaker 02:
Second of all, they didn't have data in that context like they do here.

[01:09:37] Speaker 02:
Those programs had long been assumed by the states and so there was not section seven consultation happening at the permit level like there is in Florida.

[01:09:45] Speaker 02:
Also, the state programs do not have a requirement to consider species as we said in the 402 program like they do in 404.

[01:09:52] Speaker 02:
So the states were not collecting this data.

[01:09:54] Speaker 02:
So there was actually a vacuum of information that was present in cooling water that is not present here.

[01:09:59] Speaker 02:
And third, clearly in that situation, the technical assistance process was part of the preamble and the regulation that EPA issued.

[01:10:10] Speaker 02:
And that meant that number one, it was appropriately considered by Fish and Wildlife Service as part of its jeopardy determination because it was part of the underlying program.

[01:10:20] Speaker 02:
And it meant that it was appropriate

[01:10:22] Speaker 02:
because it was enforceable under the Endangered Species Act itself.

[01:10:27] Speaker 02:
Neither of those things are true here.

[01:10:29] Speaker 02:
And so we do think that you can distinguish cooling water without having to reach this question of whether to create a circuit split.

[01:10:37] Speaker 02:
Thank you.

[01:10:38] Speaker 02:
Thank you.

[01:10:38] Speaker 02:
We ask that you affirm.

[01:10:44] Speaker 07:
Ms.

[01:10:44] Speaker 07:
Jaffee, why don't you take two minutes.

[01:10:54] Speaker 04:
Thank you, your honor.

[01:10:56] Speaker 04:
Just a few points.

[01:10:57] Speaker 04:
First of all, the technical assistance process will look at the same types of information that you examine in the Section 7 consultation process, such as the project area, the effects, cumulative effects.

[01:11:10] Speaker 04:
That is outlined at JA2621.

[01:11:14] Speaker 04:
to 26, JA2621 to JA2626.

[01:11:18] Speaker 04:
Two, the technical assistance process will quantify take if there will be any incidental take with individual permits.

[01:11:27] Speaker 04:
That's outlined at JA2670 to 71.

[01:11:32] Speaker 04:
Any permit that causes incidental take will be reopened if the take limit is exceeded.

[01:11:38] Speaker 04:
That's at JA2673.

[01:11:43] Speaker 04:
Permittees are only covered if they comply with permit conditions.

[01:11:48] Speaker 04:
That's outlined at JA2671.

[01:11:51] Speaker 04:
If they modify their project in some way, they are not covered for any additional take.

[01:11:57] Speaker 04:
That's at JA2624.

[01:12:01] Speaker 04:
Finally, I want to note one question that Judge Pan had that I didn't answer when I was up before is that there are circumstances where reinitiation of consultation would occur.

[01:12:09] Speaker 04:
For example, if Florida wanted to modify its program, it needs EPA approval for that.

[01:12:15] Speaker 04:
And if the modification would affect species in some way, then Florida would have to ask EPA's approval and EPA would have to go back to Fish and Wildlife Service.

[01:12:25] Speaker 04:
And finally, I just want to say that Fish and Wildlife Service relied on a robust process that satisfies the Endangered Species Act requirements and has been upheld by the Second Circuit.

[01:12:37] Speaker 04:
This court should uphold that process here and reverse the district court.

[01:12:51] Speaker 01:
Thank you.

[01:12:51] Speaker 01:
Thank you, Your Honor.

[01:12:53] Speaker 01:
I would like to note on cooling water that Judge Moss only found one distinction there.

[01:12:59] Speaker 01:
Otherwise, he openly admitted he just disagreed with cooling water.

[01:13:02] Speaker 01:
And the distinction that he relied on is that in cooling water, the technical assistance process was part of a federal regulation.

[01:13:09] Speaker 01:
But if you look at cooling water, the reason it found that the technical assistance process was binding and enforceable is because it was the basis of the agency action and because counsel said in open court that it was

[01:13:22] Speaker 01:
federal government in the state considered it binding on them.

[01:13:26] Speaker 01:
Both of those things are true here.

[01:13:27] Speaker 01:
The EPA and Fish and Wildlife Service only approved Florida's program because this technical assistance process was hardwired into it and was the way to avoid jeopardy and to minimize incidental take.

[01:13:39] Speaker 01:
And second, you've had the government council here

[01:13:43] Speaker 01:
Government Council and district court quite clearly said we consider this binding.

[01:13:47] Speaker 01:
We are going to apply federal standards.

[01:13:49] Speaker 01:
We will not let a Florida permit issue that violates it.

[01:13:54] Speaker 01:
So I think that you would have a circuit split.

[01:13:56] Speaker 01:
And again, you can read cooling water and almost every single argument was made by the same plaintiffs and rejected, including deference to the scientific determination that it was impossible to quantify take on a program wide level.

[01:14:10] Speaker 01:
Turning back to standing for a minute, I think my friend talked about the merits of their claim that Judge Moss found that the technical assistance process was less protective.

[01:14:22] Speaker 01:
He was not finding it less protective as a substantive matter.

[01:14:26] Speaker 01:
He did not find that Florida and the Fish and Wildlife Service would not enforce federal standards or that they were not binding.

[01:14:32] Speaker 01:
He just found that it did not have the things that a Section 7 formal consultation would require, like each permit does not have a baseline effect

[01:14:41] Speaker 01:
analysis on the species.

[01:14:43] Speaker 01:
So I think that's number one.

[01:14:45] Speaker 01:
Number two is even if you even if you do think you have to consider whether something is a merits argument, I would urge the court to look at section 916 through 918 of Crow Creek.

[01:14:56] Speaker 01:
The plaintiffs there said, our merits argument is that under federal, the federal statute, these federal cultural protection statutes will no longer continue to apply.

[01:15:06] Speaker 01:
And this court said that the tribes claim that federal enforcement will diminish is purely speculative.

[01:15:14] Speaker 01:
But when the, when the quote statute provides that the secretary will have an ongoing and undiluted role

[01:15:21] Speaker 01:
on the transferred land.

[01:15:22] Speaker 01:
So the court looked at Amerit's argument.

[01:15:24] Speaker 01:
It didn't let them have the law that they wanted to have when the binding documents said otherwise.

[01:15:29] Speaker 01:
If I could just correct one missed site in our brief that's material.

[01:15:35] Speaker 01:
My friends have also alleged a failure to consult with the National Marines Fisheries Service.

[01:15:39] Speaker 01:
And on page 53 of our reply brief, we cited the page where the agencies did clearly consider indirect effects to downstream species and found that there would not be any effects even in the waters that the Corps retained.

[01:15:56] Speaker 01:
We mistakenly cited that to JA 2156, but that quote is to JA 2159.

[01:16:04] Speaker 01:
And finally, on the Section 10 point, Your Honor, Section 10 is a voluntary option and it's a rarely used option.

[01:16:13] Speaker 01:
The comparison for purposes of standing should not be what protections would have happened under Section 10 because that's not the status quo ante.

[01:16:21] Speaker 01:
The status quo ante

[01:16:22] Speaker 01:
was the Army Corps of Engineers issuing permits under Section 7, which we know do result in some level of incidental take.

[01:16:29] Speaker 01:
The only change here is that Florida is now going to be issuing the permits after doing the same consultation under the same standards.

[01:16:36] Speaker 01:
That should be the comparison for purposes of standing.

[01:16:38] Speaker ?:
Thank you.