24-5101

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 5, 2025 Decided March 27, 2026
No. 24-5101
CENTER FOR BIOLOGICAL DIVERSITY , ET AL .,
APPELLEES /CROSS -A PPELLANTS
v.
LEE M. ZELDIN, IN HIS OFFICIAL CAPACITY AS A DMINISTRATOR
FOR THE U.S. ENVIRONMENTAL PROTECTION AGENCY , ET AL .,
APPELLANTS /CROSS -APPELLEES
STATE OF FLORIDA AND FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
APPELLANTS /CROSS -APPELLEES
Consolidated with 24-5156, 24-5159
Appeals from the United States District Court
for the District of Columbia
(No. 1:21-cv-00119)
Rebecca Jaffe, Attorney, U.S. Department of Justice,
argued the cause for federal appellants/cross-appellees. With
her on the briefs were Adam R.F. Gustafson, Acting Assistant
Attorney General, Joan Pepin, Michael Eitel, and Andrew

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Coghlan, Attorneys, and Erica Zilioli, Attorney, U.S. Army
Corps of Engineers.
Aaron M. Streett argued the cause for appellants/cross-
appellees the State of Florida and Florida Department of
Environmental Protection. With him on the briefs were Jeffrey
DeSousa, Acting Solicitor General, Office of the Attorney
General for the State of Florida, Christopher J. Baum, Senior
Deputy Solicitor General, Anthony J. Lucisano, and Jeffrey H.
Wood. Christopher B. Carter entered an appearance.
Sean Reyes, Attorney General, Office of the Attorney
General for the State of Utah, and Stanford E. Purser, Solicitor
General, were on the brief for amici curiae the State of Utah,
et al. in support of appellants/cross-appellees.
Mohammad O. Jazil and Edward M. Wenger were on the
brief for amici curiae Florida Chamber of Commerce, et al. in
support of appellant/cross-appellee the State of Florida.
Christina I. Reichert argued the cause for plaintiff
appellees/cross-appellants. With her on the briefs were Tania
Galloni and Bonnie Malloy.
George Abney was on the brief for amicus curiae the
Miccosukee Tribe of Indians of Florida in support of
appellees/cross-appellants.
Before: HENDERSON , W ILKINS , and PAN , Circuit Judges.
Opinion for the Court filed by Circuit Judge PAN .
Opinion concurring in part and concurring in the judgment
filed by Circuit Judge WILKINS .

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Opinion concurring in part and dissenting in part filed by
Circuit Judge HENDERSON.
PAN , Circuit Judge: Imagine that the owner of a trucking
company is required to register his trucks with the Department
of Motor Vehicles. To do so, each truck must pass a safety
inspection. The owner finds it burdensome to bring each
vehicle to the DMV for its own evaluation, so he meets with
the DMV manager and the vehicle inspector about a novel plan.
He says to the manager and inspector, “I don’t have all my
trucks here today. But I promise to do all the safety inspections
myself to make sure that the trucks are compliant with all the
regulations. I’ll consult with the vehicle inspector if I have any
questions. Could you please certify that all my trucks have
passed inspection and issue the registrations?” The vehicle
inspector agrees that the truck owner’s plan should be sufficient
and recommends that the manager approve it. The DMV
manager thinks about it and says to the inspector, “Well, if you
believe it’s good enough that he promises that the trucks will
comply with the safety regulations, and if he says that he’ll ask
you for help if he has any questions about it, then that’s all right
with me. Go ahead and certify that all his trucks have passed
inspection, I’ll issue the registrations, and let’s get those trucks
on the road!” The problem, of course, is that the truck owner
may or may not ensure that his trucks comply with the safety
regulations. And the vehicle inspector no longer has any
obligation to make sure that the trucks are safe.
That is similar to what happened in this case. Florida
asked the U.S. Environmental Protection Agency (EPA) to give
it authority to issue certain permits under the Clean Water Act
(CWA) that would allow permit holders to discharge pollutants
into waters in Florida. Florida promised that when it granted
those permits, it would make sure that any species that are
protected under the Endangered Species Act (ESA) would not

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be jeopardized. Florida also promised to monitor certain harms
to the protected species — called “incidental takings” — that
might occur under its permitting program and to ensure that
such incidental takings would comply with certain provisions
of the ESA. Furthermore, Florida promised to consult with the
U.S. Fish and Wildlife Service (FWS) about the effects of the
permits on protected species. The EPA and the FWS agreed to
support Florida’s proposal. The FWS found that Florida’s
permitting plan complied with the ESA, and the EPA then
relied on that finding to approve the permitting plan. As a
result, Florida and its permit recipients were essentially
excused from meeting additional ESA requirements.
Just like in the hypothetical situation at the DMV, the EPA
(like the “DMV manager”) and the FWS (like the “vehicle
inspector”) certified that Florida (the “owner”) complied with
the ESA. They did so without ensuring that Florida’s
permittees (the “trucks”) satisfied or ever would satisfy the
ESA’s “safety regulations” — either at the time of the
program’s approval, or at the time that individual permits
would be issued. The FWS thus abdicated its responsibility to
enforce the ESA: The agency essentially delegated that job to
Florida without ensuring that Florida would protect endangered
and threatened species in the manner specified by the ESA.
Meanwhile, the EPA relied on the FWS’s representations about
the program’s compliance with the ESA to approve Florida’s
permitting scheme. Thus, the EPA and the FWS enabled
Florida and the recipients of its permits to evade the ESA’s
exacting procedures for protecting listed species.
A coalition of environmental groups challenged Florida’s
permitting plan in the district court, arguing that the FWS and
the EPA violated the ESA and the Administrative Procedure
Act (APA) when they each approved Florida’s proposal. The
environmental groups argued that the FWS failed to comply

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with the ESA because it did not take necessary steps before
finding that Florida’s permitting program would not jeopardize
protected species and before concluding that Florida’s plan
would provide adequate protection against incidental takings.
They also argued that the EPA acted unlawfully by
(1) approving the permitting program in reliance on the FWS’s
inadequate conclusions, and (2) failing to consult with the
National Marine Fisheries Service (NMFS), as required by the
ESA.
The district court agreed. It vacated the Biological
Opinion (BiOp) and Incidental Take Statement (ITS) that FWS
had prepared to support its approval of Florida’s permitting
scheme, and it held that the EPA’s failure to consult with the
NMFS was arbitrary, capricious, and otherwise contrary to law.
The district court vacated the EPA’s approval of Florida’s
application to issue permits under the CWA because the EPA’s
approval was based on the flawed BiOp and ITS.
Florida and the Florida Department of Environmental
Protection (collectively, “Florida”), and the involved federal
agencies — the EPA, the FWS, the Army Corps of Engineers
(the “Corps”), and some of their leaders (collectively, the
“Federal Appellants”) — appeal the judgment of the district
court. They claim that the BiOp and the ITS relied upon by the
FWS complied with the requirements of the ESA and that the
EPA acted reasonably when it relied on the FWS’s conclusions
to approve Florida’s permitting program. Florida also argues
that the environmental groups lack standing to challenge the
agency actions at issue and that the EPA was not required to
consult with the NMFS.
We hold that (1) the environmental groups have standing
and their claims are ripe, see infra Part II; (2) the BiOp must be
set aside because it did not comply with the ESA and the EPA
violated the ESA by relying on the deficient BiOp, see infra

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Part III.B.1; see also Opinion of Wilkins, J., concurring in part
and concurring in the judgment; (3) the ITS must be set aside
because it did not comply with the ESA, see infra Part III.B.2,
and the EPA violated the ESA by relying on the deficient ITS,
id.; see also Opinion of Wilkins, J.; and (4) the EPA erred in
failing to engage in a mandatory, formal consultation with the
NMFS, see infra Part III.B.3. We further conclude that the
EPA’s approval of Florida’s permitting application must be
vacated at least because that approval relied on the problematic
ITS, which is fundamental to the permitting program, and
because the EPA approved the application without the benefit
of consultation with the NMFS. See infra Part IV; see also
Opinion of Wilkins, J.1
I.
A. Statutory Background
1. The Clean Water Act
Congress enacted the CWA to “restore and maintain the
chemical, physical, and biological integrity of the Nation’s
waters.” 33 U.S.C. § 1251(a). To that end, Section 404 of the
CWA prohibits “the discharge of any pollutant” without a
permit into the “waters of the United States.” Id. §§ 1311(a),
1362(6), 1362(7), 1362(12). The Corps ordinarily issues
Section 404 permits and ensures that they comply with
regulations. See id. § 1344(a), (d); 40 C.F.R. § 230.10(b)(3).
But a state may apply to the EPA to assume the Corps’s
permitting authority for a subset of waters within the state. 33
1 Judge Henderson joins Parts II, III.B.2, and III.B.3 of this
opinion, other than the holding in Part III.B.3 that the EPA violated
the ESA by relying on the deficient ITS, and dissents from parts
III.B.1 and IV. Judge Wilkins joins Parts II, III.B.2, and III.B.3, and
concurs in the judgment as to Parts III.B.1 and IV.

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U.S.C. § 1344(g)(1). To do so, the applying state must develop
a permitting program that is consistent with the requirements
of the CWA and its implementing regulations. See 40 C.F.R.
§ 233.1(d)–(e). After soliciting public comments, the EPA
“shall approve” the state’s application if it determines that the
application complies with the CWA and its regulations. See 33
U.S.C. § 1344(g), (h)(1)(A)(i), (h)(2)(A); 40 C.F.R. § 233.15.
2. The Endangered Species Act
States, individuals, and federal agencies must ensure that
their actions comply with the Endangered Species Act.
Congress enacted the ESA to promote “the conservation of . . .
endangered species and threatened species,” and the
“ecosystems upon which [those] species depend.” 16
U.S.C. § 1531(b). The Act provides that a species can be
“listed” as either “endangered” or “threatened.” See id. § 1533.
An endangered species is “any species which is in danger of
extinction throughout all or a significant portion of its range.”
Id. § 1532(6). A threatened species is “any species which is
likely to become an endangered species within the foreseeable
future throughout all or a significant portion of its range.” Id.
§ 1532(20). Endangered species and threatened species
receive important protections under the ESA. See id.
§§ 1538(a)(1) (listing prohibited acts for endangered species),
1533(d) (authorizing protective regulations for threatened
species).
As relevant here, the ESA prohibits the “taking” of a listed
species by individuals, states, and federal agencies. 16 U.S.C.
§§ 1538(a)(1)(B), 1532(19), 1533(d). “Taking” has an
expansive meaning — it encompasses actions that “harass” or
“harm” a protected species. Id. § 1532(19). “Harm” includes
“significant habitat modification or degradation” that “actually
kills or injures wildlife by significantly impairing essential

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behavioral patterns” like “breeding, feeding, or sheltering.” 50
C.F.R. § 17.3. Violations of the prohibition against takings
may result in a range of civil and criminal penalties. 16 U.S.C.
§ 1540(a)(1)–(2), (b). But the ESA recognizes that some
takings are “incidental” to lawful activities — that is, they
“result from, but are not for the purpose of, carrying out an
otherwise lawful activity.” 50 C.F.R. § 402.02. Incidental
takings that do not jeopardize protected species or adversely
modify or destroy their critical habitat can be exempted from
the civil and criminal penalties that otherwise would apply
under the ESA. See 16 U.S.C. § 1539(a)(1)(B).
The ESA is administered by the FWS and the NMFS. 50
C.F.R § 402.01(b). The NMFS administers the ESA for
protected marine and anadromous species (ones that migrate
between freshwater and saltwater); and the FWS administers
the ESA with respect to all other protected species. See id. We
refer to the FWS and NMFS collectively as “the Services.”
a. Biological Opinion
Under the statute and implementing regulations, an agency
must determine “at the earliest possible time” whether any
contemplated agency action “may affect” listed species or
critical habitat; and if so, the agency must enter a “formal
consultation” with the Services under Section 7 of the ESA. 50
C.F.R. § 402.14(a), (c); see also 16 U.S.C. § 1536.
The first step of a Section 7 consultation requires the
Services to prepare a written BiOp that evaluates whether the
planned agency action is “not likely to jeopardize the continued
existence” of a protected species or result in the “destruction or
adverse modification” of its critical habitat. 16 U.S.C.
§ 1536(a)(2)–(4); Nat’l Ass’n of Home Builders v. Defs. of
Wildlife, 551 U.S. 644, 652 (2007). The process of preparing a

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BiOp is a rigorous endeavor. To prepare a BiOp, the Services
must:
(1) Review all relevant information provided
by the [action] agency or otherwise available.
Such review may include an on-site inspection
of the action area with representatives of the
[action] agency and the applicant.
(2) Evaluate the current status and
environmental baseline of the listed species or
critical habitat.
(3) Evaluate the effects of the action and
cumulative effects on the listed species or
critical habitat.
(4) Add the effects of the action and
cumulative effects to the environmental
baseline and in light of the status of the species
and critical habitat, formulate the Service’s
opinion as to whether the action is likely to
jeopardize the continued existence of listed
species or result in the destruction or adverse
modification of critical habitat.
50 C.F.R. § 402.14(g). The Services also must “[f]ormulate a
statement concerning incidental take, if such take is reasonably
certain to occur.” Id. § 402.14(g)(7).
We refer to the third BiOp requirement as the “effects
analysis.” See 50 C.F.R. § 402.14(g)(3). An effects analysis
encompasses two types of effects. First, the “effects of the
action” include “all consequences to listed species . . . that are
caused by the proposed action, including the consequences of
other activities that are caused by the proposed action.” Id.

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§ 402.02. “Effects of the action may occur later in time and
may include consequences occurring outside the immediate
area involved in the action.” Id. Second, the “cumulative
effects” on the listed species include “those effects of future
State or private activities, not involving Federal activities, that
are reasonably certain to occur within the action area of the
Federal action subject to consultation.” Id. (emphasis added).
Once the Services complete the effects analysis, the next
step — which culminates in the Services issuing a “jeopardy”
or “no jeopardy” determination — is mandatory. 50 C.F.R.
§ 402.14(g)(4), (h)(iv). The Services must “[add] the effects of
the action and cumulative effects to the environmental baseline
and in light of the status of the species and critical habitat,
formulate [its] opinion as to whether the action is likely to
jeopardize the continued existence of listed species.” Id.
§ 402.14(g)(4). In other words, the Services must determine
whether the planned action “reasonably would be expected,
directly or indirectly, to reduce appreciably the likelihood of
both the survival and recovery of a listed species in the wild by
reducing the reproduction, numbers, or distribution of that
species.” Id. § 402.02. The Services must summarize the
information on which their jeopardy determination is based and
“detail how the agency action affects the species or its critical
habitat.” 16 U.S.C. § 1536(b)(3)(A); see also 50 C.F.R.
§ 402.14(h).
In the event of a “jeopardy” determination, the consulting
agency “shall suggest those reasonable and prudent alternatives
which [it] believes would not violate [Section 7(a)(2)] and can
be taken by [the action agency].” 16 U.S.C. § 1536(b)(3)(A);
see also 50 C.F.R. § 402.14(h)(3), (g)(5). “Following the
issuance of a ‘jeopardy’ opinion, the [action] agency must
either terminate the action, implement the proposed alternative,
or seek an exemption from the Cabinet-level Endangered

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Species Committee pursuant to 16 U.S.C. § 1536(e).” Nat’l
Ass’n of Home Builders, 551 U.S. at 652. Importantly, in
“formulating its biological opinion, any reasonable and prudent
alternatives, and any reasonable and prudent measures,” the
Services are required to “use the best scientific and commercial
data available.” 50 C.F.R. § 402.14(g)(8); see also 16 U.S.C.
§ 1536(a)(2) (“In fulfilling the requirements of this paragraph
each agency shall use the best scientific and commercial data
available.”).
b. Incidental Take Statement
If a Service makes a no-jeopardy determination but
concludes that incidental take is nonetheless “reasonably
certain to occur,” 50 C.F.R. § 402.14(g)(7); id. § 402.02, it
proceeds to the second step of the Section 7 consultation
process: The Service must provide an ITS. Id.; see also id.
§ 402.14(i); 16 U.S.C. § 1536(b)(4).
An ITS must:
(i) specif[y] the impact of such incidental
taking on the species;
(ii) specif[y] those reasonable and prudent
measures that the Secretary considers
necessary or appropriate to minimize such
impact;
(iii) in the case of marine mammals, specif[y]
those measures that are necessary to comply
with [incidental-take procedures specific to
marine mammals]; and
(iv) set[] forth the terms and conditions
(including, but not limited to, reporting

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requirements) that must be complied with by
the Federal agency or applicant (if any), or
both, to implement the measures specified
under clauses (ii) and (iii).
16 U.S.C. § 1536(b)(4). The implementing regulation defines
“impact” to mean “the amount or extent of such incidental
taking on the species.” 50 C.F.R. § 402.14(i)(1)(i).
Further, the action agency or applicant must “monitor the
impacts of incidental take” and “report the progress of the
action and its impact on the species to the Service as specified
in the [ITS].” 50 C.F.R. § 402.14(i)(4). The action agency
“must reinitiate consultation immediately” if the “amount or
extent of incidental taking” specified in the ITS, as required by
the regulations, “is exceeded.” Id. § 402.14(i)(5) (emphasis
added); id. § 402.16(a). Additional consultation is required in
other situations, such as “if a new species is listed or critical
habitat designated that might be affected by the identified
action.” Id. § 402.16(a)(4).
Ultimately, if the Services provide a no-jeopardy
determination and issue an ITS, then the ITS offers a safe
harbor to those who participate in the planned agency action:
Parties that comply with the terms and conditions specified in
the ITS are exempted from civil and criminal liability under the
ESA for any incidental takings, and they need not seek any
other authorization or permit under the ESA. See 16 U.S.C.
§ 1536(o)(2) (“Any taking that is in compliance with the terms
and conditions specified in [the ITS] shall not be considered to
be a prohibited taking of the species concerned.”); 50 C.F.R.
§ 402.14(i)(6) (“Any taking that is subject to [an ITS] and that
is in compliance with the terms and conditions of that statement
is not a prohibited taking under the Act, and no other
authorization or permit under the Act is required.”).

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c. Programmatic Consultation
Section 7 consultation may focus on a single agency action
or on “an agency’s multiple actions on a program, region, or
other basis.” 50 C.F.R. § 402.02. The latter is known as a
“programmatic consultation,” which allows the Services to
consult on the effects of programmatic actions, such as
“[m]ultiple similar, frequently occurring, or routine actions,”
and proposed frameworks “for future proposed actions.” Id.
Regulations recognize that such “multiple actions” might not
be ready for full Section 7 consultation at the outset and may
need to defer the required Section 7 analysis until a later time.
See, e.g., id. § 402.14(i)(7). Accordingly, the regulations
provide that “any incidental take resulting from any action
subsequently authorized, funded, or carried out under the
program will be addressed in subsequent section 7
consultation, as appropriate.” Id. But importantly, neither the
statute nor any applicable regulation provides that
“programmatic” consultations allow the Services to avoid the
rigorous requirements of Section 7 consultation entirely. See
id.
d. Section 10 Consultation
Section 10 of the ESA establishes a different procedure for
private parties, states, and other nonfederal actors to deal with
the problem of incidental takings. See 16 U.S.C. § 1539(a); 50
C.F.R. § 402.14(i)(5). Under Section 10, a nonfederal actor
may obtain a permit from the Services that allows incidental
takings to occur without subjecting the actor to liability under
the ESA. 16 U.S.C. § 1539(a)(1)(B). To obtain such a permit,
the applicant must undergo a Section 10 consultation process.
The Section 10 applicant must submit a conservation plan that
describes the impacts of potential incidental takings, the steps
the applicant will take to minimize and mitigate those impacts,

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alternatives to the planned activity, why the applicant is not
taking those alternatives, and any other measures that the
Services “may require as being necessary or appropriate.” Id.
§ 1539(a)(2)(A). The Services must publish notice of the
Section 10 permit application in the Federal Register and
provide opportunity for public comment. Id. § 1539(c),
(a)(2)(B). And the Services must make certain findings before
they can issue a permit that allows incidental takings, including
that the takings “will not appreciably reduce the likelihood of
the survival and recovery of the species in the wild,” and that
“the applicant will, to the maximum extent practicable,
minimize and mitigate the impacts of such taking.” Id.
§ 1539(a)(2)(B).
B. Factual Background
Florida is home to hundreds of endangered and threatened
species, including the Florida panther, nesting sea turtles, the
West Indian manatee, the Audubon’s crested caracara, and the
bonneted bat. The presence of such species throughout the
state is a potential barrier to development because many
construction projects affect protected species and therefore
cannot proceed without meeting the rigorous requirements of
the ESA.
Florida sought to issue permits under Section 404 of the
Clean Water Act that would allow permittees associated with
building and mining projects to discharge dredged or fill
material into U.S. waters. The Section 404 permit recipients
normally would have to obtain an additional permit from the
FWS and NMFS under Section 10 of the ESA if they wished
to avoid liability for incidental takings resulting from the
planned discharges. Florida considered that extra step
“burdensome,” “time consuming[,] and resource-intensive,”
and therefore devised a plan to eliminate it. J.A. 2033 (Florida

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White Paper, Streamlined Approach to Address Endangered
Species Act Incidental Take Coverage). Specifically, Florida
proposed to “streamline” the ESA’s permitting process and to
obtain broad, up-front ESA liability protection for all its future
CWA permittees. Under the “streamlined” approach, the EPA
would engage in a “programmatic” Section 7 consultation with
the FWS concerning the EPA’s approval of Florida’s Section
404 permitting application. The one-time Section 7
consultation would produce a “programmatic” no-jeopardy
determination and a “programmatic” ITS that would provide
take-liability protection to all future state Section 404
permittees. J.A. 2034–35.
Florida envisioned that the “programmatic” BiOp and ITS
issued pursuant to the Section 7 consultation would defer
species-specific analyses and the formulation of take
limitations to a “technical assistance process.” J.A. 2043–47.
In other words, the Section 7 analysis would not occur when
the EPA reviewed Section 404 permitting applications but
instead would be deferred until Florida started approving
individual permits. At that point, the evaluation of individual
permit applications would be conducted by Florida — not the
FWS — pursuant to a “technical assistance process” that was
less rigorous than a Section 7 consultation but would
nonetheless “provide project applicants the needed liability
protection from claims arising under the ESA even though the
activity is authorized pursuant to a state permit.” J.A. 2509
(Florida White Paper, Potential Endangered Species Act
Compromise). By getting the EPA and the FWS to approve the
“technical assistance process” during a “programmatic”
Section 7 consultation at the outset, Florida could save its
Section 404 permittees the trouble of undergoing
individualized Section 10 scrutiny on each permit while still
guaranteeing them liability protection for incidental takings,
based on the Section 7 approval of the overall program. See

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Ctr. for Biological Diversity v. Regan (CBD v. Regan), 734 F.
Supp. 3d 1, 24 (D.D.C. 2024). Florida’s proposed plan was
modeled on a similar “programmatic consultation” that was
blessed by the Second Circuit’s decision in Cooling Water
Intake Structure Coalition v. EPA, 905 F.3d 49 (2d Cir. 2018).
Florida asserted that its plan was necessary because
without it, the permittees “must avoid entirely adverse impacts
to listed species or otherwise seek an incidental take permit
under ESA Section 10 separate and apart from the Section 404
permit process, which can take years to complete in contrast to
the [programmatic] Section 7 process and is more burdensome
for all involved.” J.A. 2033. According to Florida, “around
ten percent of the Section 404 permits . . . would require some
form of incidental take coverage, including for ‘many large real
estate, mining, agriculture, and utility industry projects with
significant economic benefits to the State.’” Id.
The EPA had previously determined that Section 7
consultation was inappropriate in the context of approving state
Section 404 applications. But the EPA considered Florida’s
proposal and agreed that Section 7 consultation would make
things easier for Florida. The EPA thus sought public comment
on whether Section 7 consultation was required for its approval
of state applications to assume Section 404 permitting
authority. In response to public comments, the EPA stated that,
in its view, Section 10 consultation by individual Section 404
permittees was not “realistically feasible for states with an
abundance of ESA listed species like Florida.” J.A. 2524. In
its final decision, the EPA further stated that the “streamlined
permitting process” that the BiOp and ITS contemplated
“would reduce costs and duplication of effort by state . . . and
federal authorities and facilitate more effective and efficient
state . . . CWA Section 404 programs.” J.A. 2504. The EPA
ultimately changed its prior position and decided that the

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Section 7 consultation process does apply to the EPA’s
consideration of a state’s Section 404 permitting application.
Id.2
Before Florida submitted its Section 404 application to the
EPA, it collaborated with the FWS to design the “technical
assistance process” that would be incorporated into Florida’s
proposed permitting program. See CBD v. Regan, 734 F. Supp.
3d at 25–26 (citing ECF No. 112-5 at 170) (referring to FWS
employee’s memorialization of a February 2020 meeting that
occurred between the FWS, the EPA, and Florida, where
participants discussed features of the technical assistance
process). The FWS emphasized that the technical assistance
process would not involve additional Section 7 consultations
2 The EPA’s Section 7 consultation with the FWS was the key to
Florida’s plan to “streamline” environmental requirements. See J.A.
2033. Although the EPA decided that Section 7 applies to its
approval of Section 404 permitting applications, it is unclear whether
that conclusion was correct. Section 7 applies only when agencies
take discretionary action, see Nat’l Ass’n of Home Builders, 551 U.S.
at 663–64, but the approval of a state’s Section 404 application
arguably is not discretionary because the EPA “shall approve the
program” if it determines that the state has complied with the
relevant statutory and regulatory requirements. 33 U.S.C.
§ 1344(h)(2) (emphasis added). This issue is potentially dispositive,
but no party argues that the Section 7 consultation was improper. We
therefore assume without deciding that the EPA properly consulted
with the FWS about Florida’s Section 404 application. See
McFadden v. United States, 576 U.S. 186, 192 n.2 (2015) (“Because
we need not decide in this case whether that [statutory] interpretation
is correct, we assume for the sake of argument that it is.”); Nat’l
Ass’n of Realtors v. United States, 97 F.4th 951, 957 (D.C. Cir. 2024)
(noting that we generally “adopt the framing of the dispute that is
advanced by the parties because in our adversarial system of
adjudication, we follow the principle of party presentation” (cleaned
up)).

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when Florida issued the Section 404 permits. An FWS
employee advised Florida and the EPA to “be careful of using
words like consultation when you really mean coordination and
technical assistance.” Id. And in April 2020, an FWS
employee communicated to Florida:
After assumption [of Section 404 permitting
authority], FWS will not be issuing any project-
by-project incidental take statements [under
Section 7] for State 404 permits because the
State 404 BiOp will have a programmatic
incidental take statement that will cover any
incidental take for any state 404 permit. FWS
will merely be providing technical assistance on
the project by project reviews to [Florida]
and/or permit applicants and tracking on a
project-by-project basis any incidental take that
is anticipated to occur as the result of [Florida]
issuing any particular 404 permit.
J.A. 2546.
In August 2020, Florida formally applied to the EPA to
assume Section 404 permitting authority. See 33 U.S.C.
§ 1344(g)(1). Florida’s Section 404 application included a
draft Memorandum of Understanding (MOU), which explained
that “[u]pon assumption of the Section 404 Program,
coordination between the [FWS] and [Florida] related to the
proposed action’s effects on species will occur through the
technical assistance process, which is anticipated to be outlined
in the [FWS’s] biological opinion.” J.A. 1560. The MOU also
noted that the BiOp would be “based on information included
in the biological assessment” — a document that Florida
prepared for the EPA, which the EPA then sent to the FWS. Id.

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In September 2020, the EPA submitted a request for a
formal consultation with the FWS under Section 7 concerning
the EPA’s consideration of Florida’s Section 404 application.
In November 2020, the FWS concluded its consultation and
published its Programmatic BiOp, comprising its BiOp and
ITS. Specifically, the FWS determined that the EPA’s
approval of Florida’s Section 404 permitting application would
not jeopardize protected species or harm critical habitats; and
it included a programmatic ITS that conferred on Florida’s
permittees liability protection for incidental takings.
In making its no-jeopardy determination, the FWS stated
that it was “not feasible, nor [was] it required, to conduct a
meaningful site-specific and species-specific effects analysis in
this BiOp.” J.A. 2655. Because of the “lack of information
and uncertainties surrounding the location, timing, frequency,
and intensity” of permit actions, the FWS based its “effects
analysis” on “a number of key assumptions.” J.A. 2656. Most
significant were its assumptions about the “technical assistance
process.” J.A. 2669.
Under the technical assistance process, Florida would have
the authority to approve the Section 404 permit applications.
Permit applicants would be required to include a description of
the proposed activity, the “specific areas” affected by the
activity, a description of protected species and habitats in the
area and ways in which they might be affected, analysis of any
cumulative effects, and other “relevant information,”
including, “[w]hen needed, proposed project designs and . . .
conservation measures that would avoid and minimize the
expected impacts to listed species and their habitats.” J.A.
2617. Based on that information, Florida (and not the FWS)
would decide whether protected species or habitats would be
adversely affected if the permit were granted.

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The FWS would play a largely advisory role, with the
option of overriding Florida’s effects determination and
requiring the permittees to take additional protective measures.
The FWS would “[r]eceive” and “[r]eview” “all the 404 permit
applications,” which would be “sent by [Florida].” J.A. 2621.
The FWS could then participate in the approval process if it
chose to do so. If the FWS declined to make comments, its
silence would not indicate “concurr[ence] with any effect
determinations made by [Florida].” Id. But if the FWS decided
to weigh in and found that an application “may cause an
adverse effect to [a] species,” then that decision “would be
determinative,” and the project would be required to “include
additional protective measures or Florida [would] reject the
permit.” J.A. 2620, 2631. The EPA also could object to a
permit’s approval based on the FWS’s analysis, and the permit
could not be issued until Florida resolved the EPA’s objections.
See 40 C.F.R. § 233.50(f).3 In addition, the FWS could, if it
wished, “provide [Florida] with technical information . . . and
recommended measures that would avoid or minimize effects.”
J.A. 2621; see also J.A. 2669 (explaining that the FWS would
“be provided an opportunity to review all State 404 permit
applications,” provide technical assistance “with respect to
avoiding and minimizing effects on ESA-listed species and
their critical habitats,” and make “monitoring and reporting
recommendations” (emphasis added)).
The FWS reasoned that the “assum[ed]” coordination
between the FWS and Florida in the technical assistance
3 The FWS also was tasked with determining whether each permit
application “ha[d] the required information needed to assess”
whether “issuing the permit is likely to jeopardize” protected species
or their habitats, and the FWS agreed to notify Florida if it believed
that information was missing. J.A. 2621. If the FWS “ha[d]
information that would disconfirm [Florida’s] effect determination,”
the FWS would provide it to Florida. Id.

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program was “as protective as the section 7 interagency
consultation process.” J.A. 2657. Relying on that supposed
efficacy, the FWS concluded that the EPA’s approval of
Florida’s program was not “likely to jeopardize the continued
existence of [protected] species” or “destroy or adversely
modify designated critical habitat.” J.A. 2669. It concluded
that Florida’s program was “sufficiently structured” to avoid
jeopardy to ESA-listed species. J.A. 2655; see also J.A. 2656–
57 (“[S]ite-specific and species-specific information will
be . . . assessed through the technical assistance process.”).
The FWS then proceeded to determine whether incidental
takings were “reasonably certain” to occur due to the
permitting program. 50 C.F.R. § 402.14(g)(7). The FWS
concluded that some incidental take was “reasonably certain,”
and thus issued a “programmatic” ITS. J.A. 2670.
Although the implementing regulation requires the FWS
to estimate the take amount resulting from Florida’s permitting
program, 50 C.F.R. § 402.14(i), the FWS did not do so in its
ITS. According to the FWS, it could not make such an estimate
because it was “not possible for FWS to know what permits
would issue and where throughout the life of the program, let
alone specific amounts of take resulting from those permits.”
J.A. 2670–71. Instead, the FWS stated that Florida would
estimate incidental-take amounts on a permit-by-permit basis
and that the FWS would track anticipated take amounts of
listed species on a permit-by-permit basis.
Typically, the estimated take amount for the agency action
under review functions as a trigger for the action agency to
reinitiate a Section 7 consultation. 50 C.F.R. § 402.14(i)(5).
But the ITS provided that Florida (not the EPA) would
reinitiate consultation with the FWS if Florida found that its
own permit-level incidental-take estimates were exceeded.

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The ITS also required Florida to take the initiative to reopen
permits and to “coordinate” with the FWS if new information,
such as the listing of a new protected species, showed that
impacts to listed species would be greater or different from
what Florida had anticipated at the time that an individual
permit issued. J.A. 2673. The ITS made clear that any renewed
consultations contemplated by the ITS would not be the same
as the reinitiated Section 7 consultations required under
applicable regulations. A reinitiated Section 7 consultation
would revisit whether the overall permitting program complied
with the ESA, but the ITS explained that Florida’s issuance of
Section 404 permits was not a federal action subject to Section
7 review. The ITS further provided that compliance with its
terms would confer ESA liability protection for incidental
takings of protected species that occurred as a result of Section
404 permitted activity. The ITS required Florida to participate
in the technical assistance program described above.
In sum, at the end of the Section 7 consultation, Florida
received (1) EPA approval of its application to issue permits to
discharge pollutants into certain waters in Florida under
Section 404 of the CWA; (2) a finding by the FWS that
Florida’s permitting program would not jeopardize listed
species or their habitats, as long as Florida engaged in the
“technical assistance process” for individual permits; and
(3) liability protection for individual permittees, conditioned
on compliance with the provisions of the ITS, which required
Florida to participate in the technical assistance program.

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C. District Court Proceedings
In January 2021, a coalition of environmental groups filed
suit against the EPA, the Corps, the FWS, the NMFS, and
various federal officials.4 The plaintiffs challenged the EPA’s
approval of Florida’s Section 404 permitting application and
the Programmatic BiOp, including the BiOp and ITS, prepared
by the FWS. In relevant part, the plaintiffs raised claims under
the ESA and the APA, arguing that the agencies violated the
statutory and regulatory requirements of the ESA. The district
court granted Florida’s unopposed motion to intervene to
defend the challenged federal actions.
The district court granted summary judgment to the
plaintiffs and concluded that the actions of the EPA and the
FWS were unlawful. The court held that the FWS’s BiOp and
ITS must be set aside because both the no-jeopardy conclusion
and the ITS failed to comply with applicable standards under
the ESA. The court also concluded that the EPA impermissibly
relied on the BiOp and the ITS in approving Florida’s Section
404 application.
The district court held that the FWS was not “free to
disregard” Section 7’s requirements by basing its no-jeopardy
conclusion on later analysis performed in a “technical
assistance” process that itself would not be subject to Section
7’s requirements. CBD v. Regan, 734 F. Supp. 3d at 49. The
district court also concluded that the FWS’s ITS was faulty,
because it omitted the “essential term” of a take limit and did
not provide a “clear standard for when the level of anticipated
take has been exceeded.” Id. at 52. The district court noted
4 These environmental organizations were the Center for
Biological Diversity, Defenders of Wildlife, Sierra Club,
Conservancy of Southwest Florida, Miami Waterkeeper, St. Johns
Riverkeeper, and Florida Wildlife Federation.

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that the ITS unlawfully provided that federal agencies would
“not reinitiate formal consultation” even if the EPA’s approval
of Florida’s Section 404 program resulted in excess take or
otherwise jeopardized the continued existence of listed species.
Id. at 54 (emphasis in original). Moreover, the district court
rejected the FWS’s argument that it lacked sufficient
information to perform the required analyses under Section 7,
explaining that the statute does not create exceptions for
uncertainty or “require perfect foresight” of the FWS. Id. at
46. The district court noted that the ESA requires that wildlife
agencies use the best available data, 16 U.S.C. § 1536(a)(2),
and that the FWS had “reams of data from previous Section 7
consultations” in Florida. CBD v. Regan, 734 F. Supp. 3d at
46.
Additionally, the district court held that the EPA
impermissibly relied on the FWS’s actions to approve Florida’s
program, given that the FWS “entirely fail[ed] to address
essential questions.” CBD v. Regan, 734 F. Supp. 3d at 57.
The EPA also unlawfully concluded that it did not need to
formally consult with the NMFS under Section 7 regarding its
proposed approval of Florida’s permitting program.
Thus, the district court vacated the EPA’s approval of
Florida’s permitting program and the FWS’s BiOp and ITS.
The court held that vacatur was warranted because the
agencies’ ESA violations were serious and incapable of being
cured by additional explanation on remand. And although the
defendants complained that vacatur would result in a
“prolonged delay” in issuing Section 404 permits, the court
held that setting aside unlawful agency action almost always
results in some disruption and the type of disruption that the
defendants invoked was inherent in the Section 404 approval
process. CBD v. Regan, 734 F. Supp. 3d at 63.

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The Federal Appellants and Florida appeal. We have
jurisdiction under 28 U.S.C. § 1291.
II.
Before turning to the merits, we consider two arguments
challenging justiciability: (1) Florida argues that Appellees
lack standing to challenge the FWS’s and the EPA’s actions in
approving its permitting program; and (2) the Federal
Appellants argue that Appellees’ challenge to the Incidental
Take Statement is not ripe. We disagree.
A. Standing
We begin with standing. The “irreducible constitutional
minimum of standing” requires that plaintiffs demonstrate, for
each claim, that they have (1) “suffered an injury in fact,”
(2) that is “fairly . . . trace[able] to the challenged action of the
defendant,” and (3) that it is “likely . . . that the injury will be
redressed by a favorable decision.” Lujan v. Defs. of Wildlife,
504 U.S. 555, 560–61 (1992) (cleaned up). An organization
may assert “associational standing” to sue on behalf of its
members. Hunt v. Wash. State Apple Advert. Comm’n, 432
U.S. 333, 343 (1977). Associational standing requires that:
(1) at least one member of the association
has standing to sue in her own right
(based on a showing of harm, causation,
and redressability), (2) the interests the
association seeks to protect by suing on its
members’ behalf are germane to its
purpose, and (3) neither the asserted claim
nor the relief requested requires
individual members to participate in the
litigation.

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26
Ctr. for Biological Diversity v. EPA (CBD 2022), 56 F.4th 55,
66 (D.C. Cir. 2022) (citing Hunt, 432 U.S. at 343).
Florida contests only the first element of associational
standing: It contends that Appellees have not suffered an injury
in fact.5 But Appellees establish that they have standing to sue
because the FWS and the EPA caused classic procedural
injuries to their members by failing to take steps required by
regulations. Appellees also demonstrate that those procedural
injuries caused their members substantive injuries, which can
be redressed by requiring the agencies to follow the steps that
they omitted.
An agency’s failure to meet its statutory consultation
requirement is the “archetypal procedural injury.” Ctr. for
Biological Diversity v. EPA (CBD 2017), 861 F.3d 174, 182
(D.C. Cir. 2017); see also CBD 2022, 56 F.4th at 67 (“A claim
of failure to fulfill the statutory consultation obligation under
the ESA is at least in significant part a claim of procedural
injury.” (citing Nat’l Ass’n of Home Builders, 551 U.S. at
667)). Here, Appellees allege that the FWS failed to comply
with procedural steps required in a Section 7 consultation and
that the EPA failed to consult with the NMFS.
When plaintiffs allege procedural injuries to support
standing, we also require an adequate “connection between the
alleged procedural injury and a substantive injury that would
otherwise confer Article III standing.” Nat’l Ass’n of Home
Builders v. EPA, 667 F.3d 6, 15 (D.C. Cir. 2011) (cleaned up).
5 We are satisfied that Appellees also meet the second and third
requirements of associational standing. Their missions “include the
protection of . . . diverse species and habitats, including listed species
in Florida,” and neither the claims asserted nor the relief sought
requires the participation of individual members. CBD 2022, 56
F.4th at 66.

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To establish that connection, a plaintiff must show “[1] a causal
connection between the government action that supposedly
required the disregarded procedure and [2] some reasonably
increased risk of injury to its particularized interest.” Fla.
Audubon Soc. v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996).
And the plaintiff also must demonstrate that “a revisitation of
the [procedural requirement] would redress [the alleged] injury
because the [agency] could reach a different conclusion.” CBD
2017, 861 F.3d at 185 (emphasis added).
Appellees have satisfied all those requirements. They
demonstrate that their members had an aesthetic and
recreational interest in minimizing the loss of protected
species, including the Florida panther and nesting sea turtles.
And they connect the agencies’ alleged procedural failures to a
substantive injury to their interest: The FWS’s “bypassing of
its ESA obligations” and the EPA’s failure to consult with the
NMFS allegedly caused the EPA’s approval of Florida’s
permitting program, which authorized incidental takings of
listed species “without due attention to the risks posed to those
species.” J.A. 1328. The FWS conceded that the EPA’s
approval of Florida’s program was “‘reasonably certain’ to
result in some take of all 139 listed species in the State.” J.A.
2670 (quoting 16 U.S.C. § 1536(b)(4)). Moreover, were it not
for the alleged procedural violations, the FWS may not have
made its no-jeopardy determination and issued the
accompanying ITS, and the EPA may not have approved
Florida’s permitting program.
Florida’s arguments to the contrary are not persuasive.
First, Florida claims that Appellees cannot establish causation
because the EPA and the FWS will prevent any potential harm
through federal oversight. But in evaluating standing, we
“assume on the merits the [Appellees] would be successful in
their claims.” City of Waukesha v. EPA, 320 F.3d 228, 235

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(D.C. Cir. 2003). We therefore must accept Appellees’
allegation that federal oversight will be insufficient because the
approved technical assistance process is less protective than the
procedures required by the ESA.
Florida also errs in suggesting that Appellees must wait
until Florida issues permits to projects and those projects
actually harm protected species before bringing their
complaint. We require plaintiffs to demonstrate only a
“substantial probability” that the government’s procedural
failures will cause injury to their concrete interest. CBD 2017,
861 F.3d at 184. Here, the alleged procedural failures create a
“substantial probability” of harm to endangered species and
habitats because they resulted in the approval of a permitting
program that relaxes the ESA’s statutory protections.
B. Ripeness
The Federal Appellants argue Appellees’ challenge to the
Incidental Take Statement is not ripe. They contend that
Appellees may challenge the ITS only after the FWS
unlawfully fails to reinitiate consultation as required by the
ITS, with respect to individual Florida permits. We disagree.
“The ripeness inquiry encompasses both the fitness of the
issues for judicial decision and the hardship to the parties of
withholding court consideration.” Bellion Spirits, LLC v.
United States, 7 F.4th 1201, 1209 (D.C. Cir. 2021). Whether a
challenge to agency action is “fit for judicial decision” depends
both upon whether it “involve[s] final agency action” and
whether “judicial intervention would . . . inappropriately
interfere with further administrative action.” Id. (cleaned up)
Here, the issuances of the BiOp and ITS, which together
constitute the Programmatic BiOp, are final agency actions.
Those issuances marked the completion of the Section 7
consultation, which led to the approval of Florida’s Section 404

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application. No further agency action must occur to allow
Florida’s Section 404 permittees to avoid liability under the
ESA for incidental takings. Thus, the ITS “constitute[d] a
definitive statement of [the] agency’s position, has direct and
immediate effect on the complaining parties, and has the status
of law.” Clean Air Council v. Pruitt, 862 F.3d 1, 6 (D.C. Cir.
2017). And judicial review would not “inappropriately
interfere with future administrative action.” Bellion Spirits, 7
F.4th at 1209. The parties give us no reason to believe that we
are “prematurely meddling with an agency policy decision that
is currently undergoing change.” Great Lakes Gas
Transmission Ltd. P’ship v. FERC, 984 F.2d 426, 432 (D.C.
Cir. 1993). Further, withholding our consideration would
injure Appellees and their interests. The ITS creates legal
rights that make it easier for permittees to take protected
species that Appellees are interested in preserving.
III.
A. Standard of Review
The APA “sets forth the procedures by which federal
agencies are accountable to the public and their actions subject
to review by the courts.” Franklin v. Massachusetts, 505 U.S.
788, 796 (1992). We review a “Service’s ESA findings under
the APA” because the ESA does not specify a standard of
review. See Union Neighbors United, Inc. v. Jewell, 831 F.3d
564, 574 (D.C. Cir. 2016); see also Gerber v. Norton, 294 F.3d
173, 178 & n.4 (D.C. Cir. 2002).
Under the APA, a reviewing court must set aside agency
action that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
And a reviewing court must set aside agency action undertaken
“without observance of procedure required by law.” Id.
§ 706(2)(D). The question of whether agency action is

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arbitrary and capricious is a legal one generally made on the
administrative record and resolved on summary judgment. See,
e.g., Nat’l Ass’n of Home Builders v. U.S. Army Corps of
Eng’rs, 417 F.3d 1272, 1277, 1282 (D.C. Cir. 2005). This
court reviews such a determination de novo. Child.’s Hosp.
Ass’n of Tex. v. Azar, 933 F.3d 764, 769 (D.C. Cir. 2019).
It is well settled that an agency must “adhere to its own
regulations,” Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d
533, 536 (D.C. Cir. 1986), and “an agency action may be set
aside as arbitrary and capricious if the agency fails to comply
with its own regulations,” Nat’l Env’t Dev. Ass’n’s Clean Air
Project v. EPA, 752 F.3d 999, 1009 (D.C. Cir. 2014) (cleaned
up). Moreover, an agency action that “violates [a statute] is
‘not in accordance with law’ within the meaning of [the APA].”
Chrysler Corp. v. Brown, 441 U.S. 281, 318 (1979).
B. Analysis
In this case, the state of Florida, the EPA, and the FWS
collaborated to develop and implement an innovative approach
to complying with certain mandatory requirements of the ESA
that are designed to protect endangered and threatened species.
With the explicit goal of “streamlining” the ESA’s procedures
and making them less “burdensome,” Florida proposed a state-
run permitting program under Section 404 of the CWA, under
which permit recipients could discharge pollutants into Florida
waters while also avoiding liability for incidental takings of
protected species under the ESA. Florida proposed that the
requirements of the ESA be deferred to a “technical assistance
process” that would be administered by Florida, with optional
input from the FWS. The key to Florida’s proposal was
securing ESA approval of the overall Section 404 permitting
program up front — through a “programmatic consultation”
under Section 7 of the ESA — which would obviate the need

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31
for individual permittees to seek further approval under the
ESA for incidental takings associated with the activity
approved by their Section 404 permits.
The question before the court is whether the EPA and the
FWS’s Section 7 approval of Florida’s permitting
program — including the agencies’ reliance on the technical
assistance process and a programmatic ITS — comported with
the requirements of the ESA.
In Judge Pan’s view, the FWS’s BiOp, including its no-
jeopardy determination, was erroneous and must be set aside,
and the EPA violated the ESA by relying on the deficient BiOp
to approve Florida’s permitting program. See infra Part III.B.1.
Judge Wilkins agrees that the BiOp must be set aside, though
he reaches that conclusion for a different reason, and he agrees
that the EPA violated the ESA by relying on the deficient BiOp.
See Opinion of Wilkins, J. Judge Henderson dissents from
those conclusions. See Opinion of Henderson, J., concurring
in part and dissenting in part. The court unanimously holds that
the FWS violated Section 7 regulations when it issued a
programmatic ITS that weakened the protections of Section 7
while conferring protection from take liability on Florida and
its Section 404 permit recipients, see infra Part III.B.2; and a
divided court holds that the EPA violated the ESA by relying
on that ITS to approve Florida’s permitting program, see id.;
Opinion of Henderson, J. The court unanimously holds that the
EPA erred in failing to consult with the NMFS under Section
7. See infra Part III.B.3. The court further holds that the
agency’s errors require vacatur of the EPA’s approval of
Florida’s Section 404 application. See infra Part IV; Opinion
of Wilkins, J.

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1. Biological Opinion
As previously explained, in a Section 7 consultation, the
Services are required to take several actions before making a
no-jeopardy determination. See 50 C.F.R. § 402.14(g). Among
those requirements, the Services “shall include” a “detailed
discussion of the effects of the action on listed species or
critical habitat” in the BiOp, id. § 402.14(h), and must “[a]dd
the effects of the action and cumulative effects to the
environmental baseline” to determine “whether the action is
likely to jeopardize the continued existence of listed species,”
id. § 402.14(g). Furthermore, the Services must “use the best
scientific and commercial data available” in making those
assessments. 16 U.S.C. § 1536(a)(2); see also 50 C.F.R.
§ 402.14(g)(8). Those actions did not happen here.
It is undisputed that the FWS did not evaluate how the
approval of Florida’s permitting program would affect listed
species or critical habitat. Instead, the FWS stated in the BiOp
that it was “not feasible, nor [was] it required, to conduct a
meaningful site-specific and species-specific effects analysis in
this BiOp,” because the consultation was “on a programmatic
action.” J.A. 2655. The BiOp reasoned that Florida’s program
was “sufficiently structured” to avoid jeopardy to ESA-listed
species, id., and opined that the “technical assistance process”
that was “built in[to]” the program would be “as protective” as
the requirements of Section 7 of the ESA, J.A. 2657; see also
J.A. 2656 (“[S]ite-specific and species-specific information
will be . . . assessed through the technical assistance process.”).
Based on those findings, the FWS concluded that Florida’s
permitting program was not “likely to jeopardize the continued
existence of [protected] species” or “destroy or adversely
modify designated critical habitat.” J.A. 2669.

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But the FWS’s reasoning was demonstrably incorrect. The
technical assistance program was not “as protective” as the
Section 7 consultation process. In fact, the technical assistance
process was specifically designed to be “streamlined” and less
“burdensome,” and therefore omitted the precise analytical
steps that must be taken before a Service may issue a no-
jeopardy determination under Section 7. Those steps include
evaluating the program’s effects and then adding the effects to
the environmental baseline to assess whether any listed species
or critical habitat will be jeopardized. 50 C.F.R. § 402.14(g).
By contrast, the technical assistance process requires only that
Florida share permit applications with the FWS, which has the
option of weighing in to overturn Florida’s effects
determinations. The FWS also may, but is not required to,
“provide [Florida] with technical information . . . and
recommended measures that would avoid or minimize effects.”
J.A. 2621. And Florida and the FWS need not “use the best
scientific and commercial data available” in evaluating each
Section 404 permit, as the FWS would be required to do in
carrying out a proper Section 7 consultation. 16 U.S.C.
§ 1536(a)(2); see also 50 C.F.R. § 402.14(g)(8). The technical
assistance program is therefore far less demanding than what is
required under Section 7.6
6 Appellees also contend that the FWS did not, as required,
analyze the environmental baseline of species because it did not
evaluate the conditions of individual protected species that live in
Florida at a sufficiently specific level of detail. See 50 C.F.R.
§ 402.14(g), (h)(ii) (requiring the BiOp to include a “detailed
discussion of the environmental baseline and critical habitat”). The
district court agreed, concluding that the FWS failed to undertake
“any species-specific analysis” in assessing the environmental
baseline. CBD v. Regan, 734 F. Supp. 3d at 42 (emphasis in
original). That may not be entirely accurate — in assessing the

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To be clear, the Services may engage in “programmatic”
consultations. See, e.g., 50 C.F.R. § 402.14(i)(7). But
undertaking a programmatic consultation does not excuse the
Services from performing an effects analysis that is consistent
with Section 7’s requirements. See id. § 402.14(g); see also N.
Slope Borough v. Andrus, 642 F.2d 589, 608–09 (D.C. Cir.
1980) (holding that analysis under the Outer Continental Shelf
Lands Act could replace a “[m]andatory stage-by-stage
review” process under the ESA because that substitution
“ma[de] ESA requirements more likely to be satisfied both in
an ultimate and a proximate sense”). Indeed, ESA regulations
that govern “programmatic” consultations make clear that such
consultations may delay but may not avoid the requirements of
Section 7 regulations. See, e.g., 50 C.F.R. § 402.14(g) (creating
no exception to Service responsibilities for programmatic
consultations), (i)(7) (contemplating that “incidental take
statement[s]” for framework programmatic actions are not
required at the programmatic level because incidental takings
“will be addressed in subsequent section 7 consultation, as
appropriate” and requiring ITSs only for “those program
actions that are . . . not subject to further section 7
consultation”).
Appellants’ reliance on the Second Circuit’s decision in
Cooling Water Intake Structure Coalition, 905 F.3d at 49, to
reach a contrary conclusion is unpersuasive. Florida modeled
its permitting program on the one approved in Cooling Water,
environmental baseline, the FWS apparently adopted analysis from
the EPA that performed a species-level baseline analysis. But
because we conclude that the BiOp’s no-jeopardy conclusion fails to
perform the necessary effects analysis, we need not address the
environmental baseline evaluation. See Capitol Servs. Mgmt., Inc. v.
Vesta Corp., 933 F.3d 784, 793 (D.C. Cir. 2019) (“This court can
affirm a district court’s judgment on any basis supported by the
record.”).

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and Appellants concede that Cooling Water “stands alone as the
only case concerning, much less approving, a programmatic
biological opinion and incidental take statement of this sort.”
CBD v. Regan, 734 F. Supp. 3d at 47. But Cooling Water does
not bind us, see Brink v. Continental Ins. Co., 787 F.3d 1120,
1125–26 (D.C. Cir. 2015) (“We [are] not . . . bound to follow
the decisions of other circuits.”); and its reasoning is at odds
with applicable regulations and our own precedents, see 50
C.F.R. § 402.14(g), (i)(7); N. Slope, 642 F.2d at 609.7 A
technical assistance process that sets standards less protective
than those prescribed by the ESA cannot displace the ESA
itself.
Neither the ESA nor its implementing regulations permit
the FWS to dilute the requirements of Section 7, yet that is
precisely what the FWS sought to do. The BiOp’s no-jeopardy
determination was thus unlawful: It was arbitrary and
capricious because it violated applicable regulations, see Nat’l
Env’t Dev. Ass’n’s Clean Air Project, 752 F.3d at 1009, and it
was developed “without observance of procedure required by
law,” 5 U.S.C. § 706(2)(A), (D). The EPA’s reliance on the
7 The term “programmatic consultation” is undergirded by the
definition of “[f]ramework programmatic action,” which means “a
framework for the development of future action(s) that are . . . carried
out at a later time,” where “any take of a listed species [will] not
occur unless and until those future action(s) are . . . carried out and
subject to further section 7 consultation.” 50 C.F.R. § 402.02
(emphasis added); see also id. (“Mixed programmatic action means,
for purposes of an incidental take statement, a Federal action that
approves action(s) that [1] will not be subject to further section 7
consultation, and also approves [2] a framework for the development
of future action(s) [for which . . .] any take of a listed species [will
be . . . ] subject to further section 7 consultation.” (emphasis added)).

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36
unlawful BiOp to approve Florida’s permitting application was
unlawful for the same consequential reasons. Id.
Our dissenting colleague would deem the BiOp consistent
with statutory and regulatory requirements. In her view, “the
parties’ dispute boils down to a simple question: can the FWS
rely on structural safeguards in Florida’s program to reach a no-
jeopardy determination without conducting an analysis of
potential harm to each individual species and habitat?”
Opinion of Henderson, J., at 14. In her view, the FWS “plainly
can.” Id. at 14. And here, she says, the technical assistance
process is sufficient because it “guarantees eventual site- and
species-specific assessments.” Id. at 16; see also id. at 32. But
even if structural safeguards in the form of deferred site- and
species-specific assessments might be sufficient in some
circumstances, that is not the case here. What the dissent fails
to acknowledge is that the deferred assessments contemplated
by the technical assistance process plainly will not meet
Section 7’s exacting requirements — indeed, the technical
assistance process was specifically designed to be
“streamlined” and less “burdensome” than Section 7. At
bottom, such a watered-down procedure does not comport with
agency regulations on programmatic approvals, which
expressly subject deferred actions to “further section 7
consultation.” 50 C.F.R. § 402.02.
2. Incidental Take Statement
Section 7 of the ESA and its implementing regulations
envision a multistep, iterative process for monitoring and
protecting against excessive incidental takings. When
evaluating a contemplated agency action, the Services are
directed to estimate the incidental-take amount that is deemed
acceptable and to include measures in the ITS to minimize the
effect of incidental take. See 50 C.F.R. § 402.14(i)(1)(i) (The

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37
ITS must “[s]pecif[y] the impact of incidental taking as the
amount or extent of such taking.”); id. § 402.14(i)(1)(ii) (The
ITS must “[s]pecif[y] those reasonable and prudent measures
that the [FWS] considers necessary or appropriate to minimize
such impact of incidental taking on the species.”). The
Services normally monitor the levels of incidental take by
requiring the consulting agency to “report the progress of the
action and its impact on the species.” Id. § 402.14(i)(4). And
if the actual incidental takings exceed the estimated incidental-
take amount, the agency must reinitiate consultation with the
Services “immediately.” See id. §§ 402.14(i)(5), 402.16. Thus,
the initial estimate of “the amount or extent” of incidental take
is an important feature of any ITS because that take amount
triggers immediate reinitiation of consultation between the
Services and the action agency under Section 7. See Am. Rivers
v. FERC, 895 F.3d 32, 48–49 (D.C. Cir. 2018) (stressing the
need for a trigger to reinitiate formal consultation). The
Services also must engage in reinitiated agency consultations
when “a new species is listed or critical habitat designated that
may be affected by the action.” 50 C.F.R. § 402.16.
Here, the ITS violates several applicable regulations.
First, the ITS does not quantify “the amount or extent” of
incidental take of ESA-listed species, due to an asserted
“inability to anticipate the locations of future State 404 permit
applications,” which “did not allow the [FWS] to conduct site-
and species-specified analyses to estimate the number of
individuals that might be affected by the permitted activities.”
J.A. 2670. Instead, the ITS provides that “the amount and
extent of incidental take anticipated from the[] proposed
activities will be quantified and evaluated on a project-specific
basis through the technical assistance process conducted
between the [FWS] and [Florida].” Id.

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38
Second, the ITS fails to identify specific “reasonable and
prudent measures” to minimize the impact of incidental take.
50 C.F.R. § 402.14(i)(1)(ii). Rather, it (1) generally instructs
the EPA, Florida, and other agencies to minimize impacts on
protected species, and (2) “assume[s] that through technical
assistance with the State, appropriate measures to minimize
incidental take and detrimental effects associated with
activities regulated by the State 404 program will be developed
by the [FWS], and that these measures will ensure that each
permit will minimize adverse effects and thereby avoid
jeopardy to ESA-listed species and avoid destruction or
adverse modification of critical habitat.” J.A. 2671 (emphasis
added).
Third, the ITS relieves the FWS of any mandatory duty to
participate in reinitiated Section 7 consultations. Applicable
regulations require the reinitiation of agency consultation if
expected take levels are exceeded, 50 C.F.R. § 402.14(i)(5), or
if a new species or habitat is deemed protected, id. § 402.16.
But the ITS addresses excessive-take levels through the
technical assistance process, which falls short of a renewed
Section 7 consultation. See J.A. 2671 (If incidental take occurs
after “implementation of recommended minimization
measures,” the FWS will “quantify” the amount or extent of the
take, and then “review reports and track the levels of the
estimated take through the technical assistance process.”).
Moreover, the ITS explicitly states that “the listing of a new
species or critical habitat shall not trigger reinitiation of
consultation on this action (approval of Florida’s assumption
of the CWA 404 program).” J.A. 2674 (emphasis added).
Indeed, the FWS contends it would have “no obligation” to
conduct further Section 7 consultations “because [Florida’s]
issuance of . . . a permit is not a Federal Action.” Id.

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39
The FWS defends its failure to set an estimated incidental-
take amount, in violation of the applicable regulation, by
arguing only that it was unable to make that determination
because it did not know the geographic locations that would be
affected by Florida’s permits. But that assertion of
impossibility is dubious. The FWS surely could have
attempted to make the required estimate: The ESA mandates
only that the FWS use the “best available information.” 16
U.S.C. § 1536(a)(2); see also 50 C.F.R. § 402.14(g)(8). As the
district court pointed out, the FWS had “reams” of information
about protected Florida species at its disposal, gleaned from
numerous BiOps that it had previously prepared. CBD v.
Regan, 734 F. Supp. 3d at 54. Indeed, as the district court
suggested, “[i]f there are about 150 panthers left in Florida . . .
it is not difficult to imagine a cumulative take limit per year for
the entire State (or for particular regions of the State).” Id. at
52. Moreover, if the FWS faced difficulty estimating an
incidental-take amount when preparing the ITS, the FWS could
have deferred the required analysis to a subsequent Section 7
consultation. See 50 C.F.R. § 402.14(i)(7) (noting that an
“incidental take statement” may not be required at the
programmatic level when “any incidental take . . . will be
addressed in subsequent section 7 consultation”).
The FWS’s rationale for skirting mandatory reinitiation of
Section 7 consultations when expected take levels are
exceeded, 50 C.F.R. § 402.14(i)(5), and upon the listing of a
new species or the designation of a new critical habitat, id.
§ 402.16(a)(4), is equally unavailing. The FWS contends that
it has no obligation to engage in further Section 7
consultations — such as when expected take levels are
exceeded — because Florida’s subsequent permitting decisions
are not federal actions. That argument, though, does not justify
end-running Section 7 and instead suggests that programs like
this one are a poor fit for Section 7 consultation. See supra n.2.

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40
Under the FWS’s reasoning, Florida would obtain the benefits
of a Section 7 consultation (i.e., a programmatic ITS that
provides permittees with incidental-take liability protection),
without the attendant costs (i.e., continued monitoring, with the
possibility of reinitiated Section 7 consultations, to protect
listed species or critical habitats).
Because the ITS openly violates applicable regulations
regarding take amounts and the reinitiation of consultation, it
is arbitrary and capricious. See Nat’l Env’t Dev. Ass’n’s Clean
Air Project, 752 F.3d at 1009. It also violates the APA because
the FWS developed the ITS “without observance of procedure
required by law.” 5 U.S.C. § 706(2)(D). And the EPA violated
the ESA and APA by relying on the deficient ITS to approve
Florida’s permitting-program application. Id.
3. Consultation with the NMFS
The EPA also erred by failing to formally consult with the
NMFS under Section 7. The EPA decided that it need not
consult with the NMFS because it believed Florida’s permitting
application would not affect protected species under the
NMFS’s jurisdiction. That decision was erroneous because the
EPA neglected to assess the downstream or indirect effects of
the permitting program in all areas to be affected directly or
indirectly by the program. See 50 C.F.R. § 402.02 (defining
“action area” and “effects of the action”).
As previously discussed, whenever an agency’s
discretionary action “may affect” a listed species in a
contemplated “action area,” the agency must consult with the
NMFS, the FWS, or both, if the affected species are within the
relevant Service’s jurisdiction. See 16 U.S.C. § 1536. The
agency must first coordinate with the Services to determine
whether the proposed agency action would have any impacts
on listed species, such that formal consultation under Section 7

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41
is required. 50 C.F.R. § 402.14(b)(1). The agency may forgo
formal consultation with a Service if it determines, “with the
written concurrence of the [relevant Service], that the action is
not likely to adversely affect listed species or critical habitat”
under the Service’s jurisdiction. Id.; see also id. § 402.13(c).
The “action area” is defined as “all areas to be affected directly
or indirectly by Federal action and not merely the immediate
area involved in the action.” Id. § 402.02. Moreover, the
“effects of an action” are not temporally or geographically
limited, and “may occur later in time and may include
consequences occurring outside the immediate area involved in
the action.” Id.
Here, the NMFS provided an advisory letter to the EPA,
which stated that “[protected] species under NMFS’[s]
jurisdiction do not occur in waters that are assumable by
[Florida].” J.A. 2196. Based on the advisory letter, the EPA
informed the NMFS that it would “conclude consultation [with
the NMFS] on this action.” J.A. 2174. But importantly, neither
the NMFS nor the EPA recognized that the advisory letter was
insufficient in its scope: It focused on the “immediate area
involved in the action” instead of “all areas to be affected
directly or indirectly.” 50 C.F.R. § 402.02 (definition of
“action area”). In fact, the required effects analysis had to
encompass “all consequences to listed species or critical habitat
that are caused by the proposed action, including . . . effects
[that] may occur later in time and may include consequences
occurring outside the immediate area involved in the action.”
Id. (definition of effects of the action).
The EPA’s failure to consult with the NMFS was likely
significant. The record suggests that Florida’s program might
indirectly affect listed species under the NMFS’s jurisdiction.
For example, the BiOp notes that “freshwater eventually makes
its way to the nearly 2,000 miles of Florida coastline and

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42
marine ecosystem,” suggesting that discharge into Florida’s
freshwaters might eventually affect marine species like the
Gulf sturgeon, Atlantic sturgeon, and shortnose sturgeon, all of
which are under the NMFS’s jurisdiction. J.A. 2643.
Consequently, the EPA’s determination that it need not
consult with the NMFS was arbitrary, capricious, and contrary
to law.
IV.
When an agency’s action is unlawful, “vacatur is the
normal remedy.” Allina Health Servs. v. Sebelius, 746 F.3d
1102, 1110 (D.C. Cir. 2014). That is because Congress has
directed us to “hold unlawful and set aside agency action” that
is “not in accordance with law[.]” 5 U.S.C. § 706(2)(A). Our
precedents “permit a court to remand without vacating the
agency’s action in limited circumstances,” but doing so is an
“exceptional remedy.” Am. Great Lakes Ports Ass’n v. Schultz,
962 F.3d 510, 518–19 (D.C. Cir. 2020) (citing Allina Health
Servs., 746 F.3d at 1110). To determine whether remand
without vacatur is warranted, we consider the factors set forth
in Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commission,
namely: (1) the “the seriousness of the order’s deficiencies (and
thus the extent of doubt whether the agency chose correctly),”
and (2) the “disruptive consequences of an interim change that
may itself be changed.” 988 F.2d 146, 150–51 (D.C. Cir. 1993)
(cleaned up). The second factor “is weighty only insofar as the
agency may be able to rehabilitate its rationale.” Env’t Def.
Fund v. FERC, 2 F.4th 953, 976 (D.C. Cir. 2021) (citation
omitted).
As explained above, we hold that four agency actions
violate the ESA and the APA — i.e., the BiOp, the ITS, the
EPA’s failure to consult with the NMFS, and the EPA’s
approval of Florida’s permitting program. Each of those

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43
unlawful agency actions requires the normal remedy of
vacatur.
First, the deficiencies of each action are serious and the
EPA cannot sufficiently explain its actions on remand. See
Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 985
F.3d 1032, 1052 (D.C. Cir. 2021) (The inquiry is “whether the
agency could, with further explanation, justify” its procedural
failures.). The FWS based its BiOp’s no-jeopardy
determination on a flawed effects analysis and inaccurate
assumptions about the efficacy of the technical assistance
process. Moreover, the flawed ITS would allow Florida’s
Section 404 permittees to claim exemptions from take liability,
without requiring those permittees to meet applicable
requirements under either Section 7 or Section 10 of the ESA.
In addition, the EPA erroneously determined that consultation
with the NMFS was not required under Section 7. All of those
errors fatally undermine the EPA’s approval of the permitting
program, and that decision cannot be salvaged with additional
explanation. See N.J. Conservation Found. v. FERC, 111 F.4th
42, 64 (D.C. Cir. 2024) (vacatur appropriate where deficiencies
went to the core of an agency’s findings and were unlikely to
be cured with more explanation); Standing Rock, 985 F.3d at
1052 (vacatur appropriate where procedural violations “lead us
to doubt that the ultimate action will be approved”); Env’t Def.
Fund v. FERC, 2 F.4th 953, 976 (D.C. Cir. 2021) (vacatur
appropriate where agency action was informed by deficient
proceedings).
Second, vacatur would not likely cause undue “disruptive
consequences” from “an interim change that may itself be
changed.” Allied-Signal, 988 F.2d at 150–51. It is not at all
clear that Appellants will be able to reinstate the contemplated
permitting program consistent with the requirements of the
ESA. Moreover, it is not unduly disruptive for Section 404

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44
permitting authority to revert to the Corps, which was
responsible for issuing such permits before Florida
implemented the program under review. And finally, our
vacatur of each agency action is prospective and should not call
into question previously issued Section 404 permits.
Our dissenting colleague would not vacate the EPA’s
approval of Florida’s permitting program because, in her view,
the BiOp permissibly defers FWS site- and species-specific
assessments and the ITS “had no bearing on the EPA’s transfer
decision.” See Opinion of Henderson, J., at 39. But even
assuming that she is correct about the BiOp, the concededly
deficient ITS independently requires vacatur because it was an
important aspect of the EPA’s approval process. See J.A. 2670;
see also 50 C.F.R. § 402.14(g), (i)(1) (ITS must be formulated
during the formal consultation process and “with the biological
opinion”). Without a valid procedure for dealing with
incidental takings, the EPA could not have approved Florida’s
permitting program consistent with the ESA and its
regulations. See, e.g., 16 U.S.C. § 1536(b)(4); 50 C.F.R.
§ 402.14. Moreover, the dissent’s remedy analysis overlooks
the EPA’s concededly erroneous failure to consult with the
NMFS. Because the mandated consultation did not occur,
there is no way to discern whether the NMFS would have
issued a BiOp with a “no jeopardy” determination that would
have allowed the EPA to approve Florida’s novel permitting
program. Those serious deficiencies cannot be addressed with
further explanation on remand, and it is unclear whether the
program’s approval can be rehabilitated. Thus, the normal
remedy of vacatur is warranted.
* * *

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45
For the foregoing reasons, we affirm the judgment of the
district court.8
So ordered.
8 Appellees conditionally cross-appealed the district court’s
dismissal of their CWA claims. Because the cross-appeal is
conditional and we need only reach it if we reverse the district court’s
judgment, we dismiss the cross-appeal as moot. See Sea-Land Serv.,
Inc. v. Dep’t of Transp., 137 F.3d 640, 649 (D.C. Cir. 1998).

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WILKINS, Circuit Judge, concurring in part and concurring in
the judgment:
I concur in the judgment affirming the District Court. I
join Sections II, III.B.2, and III.B.3, and concur in the judgment
as to Sections III.B.1 and IV of the Majority Opinion.
Specifically, I agree that the Court should affirm the District
Court’s grant of summary judgment to Environmental
Appellees as to Counts 4 and 10–11 of the Complaint.
Counts 4 and 10 of the Amended Complaint alleged that
the Biological Opinion (“BiOp”) as a whole, including the
Incidental Take Statement (“ITS”), violated the Endangered
Species Act (“ESA”) and the Administrative Procedure Act
(“APA”) because, among other things, the ITS did not specify
the amount and extent of incidental take of listed species “and
fail[ed] to specify a take-based trigger for reinitiating
consultation[.]” J.A. 39, 155, 168. For the reasons stated in
Sections III.B.2 and III.B.3 of the Majority Opinion, and as
further explained below, the plaintiffs were entitled to
summary judgment on those counts.
Count 11 alleged that the Environmental Protection
Agency (“EPA”) arbitrarily and capriciously failed to consult
with the National Marine and Fisheries Service (“NMFS”)
because EPA failed to consider that Florida’s Section 404
program would have an indirect effect on species within
NMFS’s jurisdiction. J.A. 170–71. Since EPA has now
conceded that the District Court properly granted summary
judgment in favor of Environmental Appellees as to Count 11
because Florida’s 404 program may affect three ESA-listed
species in NMFS’s jurisdiction: the (1) Atlantic sturgeon, (2)
Shortnose sturgeon; and (3) Smalltooth sawfish, I would affirm
the District Court as to Count 11. See EPA Opening Br. 50.
I also agree that the Court should affirm the vacatur of the
Incidental Take Statement as deficient, which results in vacatur

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2
of the Biological Opinion because its no jeopardy finding is
dependent upon the deficient ITS. I also agree that the Court
should affirm the vacatur of the EPA’s approval of Florida’s
Section 404 program, see 33 U.S.C. §§1344(g)–(h), because
such approval was dependent upon the now-vacated Biological
Opinion. To avoid undue disruption, I would not disturb any
of the permits that have already been granted under the
program.
I.
I write separately because my view of the statutory scheme
differs a bit from my colleagues.
A.
I begin with the framework that applies to our analysis of
the ESA challenge to this programmatic action, which is guided
by National Association of Home Builders. See Nat’l Ass'n of
Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007).
In National Association of Home Builders, the Court held
that the Clean Water Act (“CWA”) and the ESA must be
construed in manner that gives effect to both statutes’ specific
mandates if possible. 551 U.S. at 662–63. As the Court
explained, Section 7(a)(2) of the ESA can co-exist with Section
402 of the CWA and “[t]he transfer of permitting authority to
state authorities—who will exercise that authority under
continuing federal oversight to ensure compliance with
relevant mandates of the [ESA] and other federal
environmental protection statutes—was proper.” Id. at 649–
50, 673. Because implied repeals are disfavored, National
Association of Home Builders teaches that we have an
obligation to interpret Section 404 of CWA in the same
manner, so that we give effect to all provisions of the ESA and

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3
Section 404, if at all possible. This perspective was explicitly
stated by Congress in the ESA. See 16 USC § 1531(c)(2) (“It
is further declared to be the policy of Congress that Federal
agencies shall cooperate with State and local agencies to
resolve water resource issues in concert with conservation of
endangered species.”). Thus, we have a duty to construe the
ESA harmoniously with Section 404 wherever we can do so
without nullifying any provision of the ESA.1
B.
Here, the way Florida and the federal agencies attempted
to implement Section 404 nullified two very clear and specific
requirements of the ESA.
First, the ESA requires that a BiOp includes an ITS when
the U.S. Fish and Wildlife Service (“FWS” or “Service”)
concludes that the action will result in take of such a protected
species. The ITS must “specif[y] the impact of such incidental
taking on the species,” 16 U.S.C. § 1536(b)(4)(i), and “the
amount or extent” of such taking. 50 C.F.R. § 402.14(i)(1)(i).
Second, ESA regulations mandate that the parties must monitor
the impact of the action on protected species, and if the amount
of take exceeds the limit set forth in the ITS, “the Federal
agency must reinitiate consultation immediately.” See 50
C.F.R. §§ 402.14(i)(4)–(5). The Florida/EPA Agreement does
not comply with either of these ESA requirements.
1 I do not think that the framing of the issues in Judge Pan’s opening
hypothetical is quite apt. See Majority Op. at 3. Because Florida
will not be the party applying for permits, it is not fair to equate the
sovereign’s role in a Section 404 program with that of a regulated
party, such as a truck owner seeking to pass inspection from the
Department of Motor Vehicles.

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4
The ITS in the present case did not include any take limits
at all. Instead, the ITS stated “the amount and extent of
incidental take anticipated from these proposed activities will
be quantified and evaluated on a project-specific basis through
the technical assistance process conducted between the
USFWS and the State.” J.A. 2670. The ITS justified the
absence of any take limits because the “inability to anticipate
the locations of future state 404 permit applications did not
allow the Service to conduct site- and species-specific analyses
to estimate the number of individuals that might be affected by
the permitted activities.” Id. As the District Court found,
without a clear and enforceable incidental take limit, the ITS
violates the ESA. See Am. Rivers v. FERC, 895 F.3d 32, 48–
49 (D.C. Cir. 2018) (holding that the requirement to reinitiate
consultation if “the amount or extent of incidental take is
exceeded” did not provide enough guidance, rendering
biological opinion unlawful); see also Oregon Nat. Res.
Council v. Allen, 476 F.3d 1031, 1041 (9th Cir. 2007) (“The
salient point here, however, is that no matter what kind of
limitation on take the FWS chooses to place in the Incidental
Take Statement, it cannot be so indeterminate as to prevent the
Take Statement from contributing to the monitoring of
incidental take by eliminating its trigger function.”). Neither
the statute nor the regulations allow the action agency to state
that take limits will be determined at a later time, and then deem
Section 7 consultations finished.
To make matters worse, the ITS states that even if a later-
specified take limit is exceeded, the federal agencies were not
required to reinitiate consultation. See J.A. 2674.2 Thus, even
2 Indeed, the federal agencies effectively conceded this point,
Fed. Appellant Br. 47–48 & n.7, but they say in a footnote that
the issue is not ripe, id. The federal agencies cite no authority

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5
though the ESA regulations mandate that when a take limit is
exceeded, “the Federal agency must reinitiate consultation
immediately,” see 50 C.F.R. §§ 402.14(i)(5), the EPA is not
required to do so here. Instead, Florida is required to re-open
the permit and coordinate further protective measures with the
FWS as part of the technical assistance process, but there is no
reinitiation of Section 7 consultation. This is wrong. The
Section 404 program cannot be implemented in a way that
impliedly repeals this bedrock requirement of the ESA. Rather,
the ITS was required to state, in some measurable manner, how
to determine when the program was allowing too much take
and to mandate the re-initiation of consultation if the take limit
were ever exceeded. This is critical, because the take immunity
expires when re-initiation of consultation begins, since the
BiOp is no longer valid. See Center for Biological Diversity v.
U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1115 (9th Cir.
2012).
The federal agencies do not dispute that the absence of
concrete take limits in the ITS conflicts with ESA regulations,
but they assert that “the regulation does not speak to what the
agency must do when neither the amount of anticipated take
nor any surrogate is knowable at the time the statement must
issue[.]” See Fed. Appellant Br. 47. Not so. The ESA
regulations include a provision for issuing BiOps in
incremental steps, which requires further Section 7
consultation when an additional step is needed to determine an
incidental take limit. See 50 C.F.R. § 402.14(k). The
regulations also include an “expedited consultation” provision,
which can be used to quickly complete further consultation
needed to specify a take limit for a specific permit. See 50
in support of that proposition, and I do not find their one-
sentence conclusory argument persuasive.

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6
C.F.R. § 402.14(l). See also U.S. Fish & Wildlife Service and
National Marine Fisheries Service, Endangered Species
Consultation Handbook, pp. 5-6 to 59 (1998) (describing
streamlined consultation procedures for programmatic actions
and incremental step consultations). The BiOp does not
explain why neither of these regulations could be employed
here. Neither do Florida or the federal agencies. For its part,
Florida argues that a rulemaking proceeding relating to
incidental take statements for programmatic actions
contemplated “other types” of programmatic actions that do not
fit within the definitions provided in the regulations. See Fla.
Appellant Br. 32–33 (citing 80 Fed. Reg. 26832, 26835 (May
11, 2015)). But that language does not help them, because the
rulemaking did not purport to exempt any such “other type” of
programmatic consultations from ESA regulations.
Florida and the federal agencies ask us to follow Cooling
Water Intake Structure Coalition v. EPA, 905 F.3d 49, 77 (2d
Cir. 2018), where the court rejected an ESA challenge to an
ITS that, like here, did not include take limits and instead relied
upon a subsequent “technical assistance” process to set them.
The Second Circuit held that the “justification for not
immediately qualifying take [wa]s adequate,” given the lack of
information at the programmatic consultation stage about
specific future sites and how particular species might be
affected. Id. I do not find this reasoning persuasive, given that
the court never addressed the conflict with the explicit mandate
in the ESA regulation that the ITS “will provide . . . a statement
concerning incidental take that . . .[s]pecifies the impact of
incidental taking as the amount or extent of such taking.” 50
C.F.R. § 402.14 (i)(1)(i) (emphasis added). The court cited
cases and legislative history for the proposition that Congress
anticipated that a numerical take limit would not always be
practicable, but those authorities merely support using a
surrogate (such as members of another species or a habitat

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7
element like food, cover or water quality) to quantify take when
it is impracticable to quantify the protected species. See
Cooling Water, 905 F.3d at 77. None of those authorities
countenanced failing to set a take limit in the ITS at all. Indeed,
one of the cases relied upon by Cooling Water invalidated an
ITS because the FWS had removed the take limit in its revised
BiOp so that “no number of dead or vanished [protected
species] . . . will trigger re-consultation.” See Miccosukee
Tribe of Indians of Fla. v. U.S. Fish and Wildlife Service, 566
F.3d 1257, 1275 (11th Cir. 2009) (cited in Cooling Water, 905
F.3d at 77). Furthermore, Cooling Water’s reasoning cannot
be squared with longstanding agency procedure that “a
programmatic consultation will not substitute for an individual
project consultation, unless the programmatic analysis lays out
the species-specific standards within which all individual
activities will be conducted.” Endangered Species
Consultation Handbook, p. E-17.
In short, Florida and the federal agencies wanted to create
take immunity even though the ITS did not specify any clearly
identifiable take limits, conclude the required Section 7
consultation, and not bind themselves to reinitiate Section 7
consultation if any later-imposed take limits were exceeded.
That is not how the ESA statutory and regulatory scheme
works.
One other incongruity of the ITS results from the fact that,
if Florida’s position is correct, none of the federal agency
action occurring during the technical assistance process would
ever require Section 7 consultation because the permits are
issued by the state, rather than the federal government. See Fla.
Appellant Br. 34–35 (arguing that when Florida administers the
Section 404 permits, this is “not a ‘phase’ of the federal action
triggering additional Section 7 consultations[.]”). Recall that
the technical assistance process can involve a federal agency

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8
deciding whether to object to a permit or to express a take limit
using a number or a surrogate, actions that appear to be
inherently discretionary. See Arkansas v. Oklahoma, 503 U.S.
91,99 (1992) (describing the EPA’s power to veto a state
permit as an act “in its discretion”); Nat. Res. Def. Council v.
Houston, 146 F.3d 1118, 1123, 1125–26 (9th Cir. 1998) (where
U.S. Bureau of Reclamation had authority to renew water
contracts on “mutually agreeable” terms, the federal agency
had discretion within the meaning of the ESA). Given that
Section 7 consultation “applies to every discretionary agency
action—regardless of the expense or burden its application
might impose,” see Nat’l Ass’n of Home Builders, 551 U.S. at
671 (emphasis removed) (citing TVA v. Hill, 437 U.S. 153
(1978)), I do not see how the entirety of the technical assistance
process falls outside of Section 7’s consultation requirements.
See id. at 672, n.11 (observing that following the transfer of
permitting authority to the state under Section 402 of the CWA,
“EPA will retain . . . the power to object to proposed permits,”
and “the fact that the EPA may exercise discretionary oversight
authority . . . may trigger Section 7(a)(2)’s consultation and no-
jeopardy obligations[.]”). This seems to be another way in
which this use of federal “technical assistance” to implement
Section 404 of the CWA impliedly repeals provisions of ESA
Section 7, which it cannot lawfully do.
Because these errors require vacatur of the BiOp, the ITS
and EPA’s approval of Florida’s Section 404 program, we can
affirm the District Court on this basis, and we have no need to
reach the remaining issues. For this reason, and because my
view of the remaining issues differs slightly from my
colleagues, I will leave it there.

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KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in part and dissenting in part: In 2020, after years of effort, the
Environmental Protection Agency (EPA) transferred Clean
Water Act (CWA) permitting authority from the Army Corps
of Engineers to the State of Florida. Despite a statutory
preference for state control of CWA permitting, this was only
the third successful federal-to-state handoff in the half-century
life of the permitting program. The reasons for states’
reluctance are many but at least one roadblock is arduous
environmental review. Even after a state clears the CWA’s
procedural hurdles, it must meet other federal laws and
regulations that can trip up even the most punctilious actor.
Nevertheless, Florida picked up the baton. For years, it built
an administrative apparatus, enacted legislation, promulgated
regulations, hired and trained personnel and worked hand-in-
hand with partner federal agencies to satisfy the environmental
laws. Its effort finally bore fruit when, in December 2020, the
EPA handed it control of the CWA program in Florida. But
“no sooner do agencies approve new [action] than they find
themselves under a tidal wave of litigation from environmental
groups.” Appalachian Voices v. FERC, 139 F.4th 903, 916–17
(D.C. Cir. 2025) (Henderson, J., concurring).
Within weeks of the EPA’s transfer, environmental groups
sued to stop Florida’s CWA assumption. On summary
judgment, the district court vacated the EPA’s transfer due to
alleged procedural violations of the Endangered Species Act
(ESA), violations that, on my reading, appear nowhere in the
statute. Nor can they be found in any agency regulation.
What follows is a technical, in-the-weeds discussion of
various overlapping environmental laws. But at a macro level,
the issue is remarkably simple. The ESA requires federal
agencies to assess the impact of any “final action” on
endangered species. Because the relevant “action” is Florida’s
ongoing assumption of CWA permitting, the relevant federal
agencies could not reliably predict or quantify the effects of the

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2
transfer on endangered species. To comply with both laws, the
CWA and the ESA, the Government required Florida to consult
with it on each permit Florida plans to issue.1 These
consultations entailed built-in conditions to mitigate any
potential harm an individual permit might cause to a protected
species. Based on these structural safeguards, the Government
concluded that its action—CWA transfer to Florida—was
unlikely to jeopardize endangered species. The central
question is whether the Government can rely on future permit-
by-permit consultation to measure harm to endangered species
or whether, at the time of transfer, it has to divine the full
impact of permitting across the entire state of Florida for all
time.
Remarkably, the district court held the latter, breaking
from statutory text, context and the holding of a sister circuit.
As detailed infra, I believe the Congress has not required
federal agencies to make remote, perhaps improbable,
predictions in conducting their ESA review. And courts should
stop short of demanding that they try to do so. Accordingly, I
respectfully dissent in part.
I. BACKGROUND
A. Statutory and Regulatory Background
In the 1960s and 70s, a national push for greater
environmental protection led to a slew of environmental laws.
In 1966, the Congress enacted the Endangered Species
Preservation Act, which directed the Secretary of the Interior
to create a list of threatened and endangered species and to
1 I use “the Government” to refer collectively to the relevant
federal agencies: the EPA, the Services and the Army Corps of
Engineers. The remaining Appellants are officers of these agencies
respectively.

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3
purchase land important for conservation. Pub. L. No. 89-669,
80 Stat. 926 (1966). A companion statute, the Endangered
Species Conservation Act, prohibited the import of most
endangered species. Pub. L. No. 91-135, 83 Stat. 275 (1969).
These measures proved inadequate and, in 1973, the Congress
enacted the Endangered Species Act, which made it the policy
of all federal agencies to conserve and protect endangered and
threatened species. Pub. L. No. 93-205, § 2, 87 Stat. 884
(1973), codified as amended at 16 U.S.C. § 1531(c). Like its
forebears, the ESA creates a list of “endangered” and
“threatened” species subject to legal protection.2 When a
species is listed, the Fish and Wildlife Service (FWS) and the
National Marine Fisheries Service (NMFS) (collectively, the
Services) must designate a critical habitat “to the maximum
extent prudent and determinable” and “develop and implement
plans . . . for the conservation and survival” of that species.3 16
U.S.C. § 1533(f); see 50 C.F.R. § 402.01(b) (tasking FWS and
NMFS with administering the Act).
Under § 7 of the ESA, every federal agency must consult
the Services if any action it authorizes, funds or carries out may
affect a listed species or critical habitat to ensure that the action
does not jeopardize the continued existence of the species or its
2 An endangered species is “any species which is in danger of
extinction throughout all or a significant portion of its range.” 16
U.S.C. § 1532(6). A threatened species is one “which is likely to
become an endangered species within the foreseeable future
throughout all or a significant portion of its range.” Id. § 1532(20).
3 The Secretary of Commerce is responsible for marine species
and administers the ESA through the NMFS. The Secretary of
Interior is responsible for terrestrial species and administers the ESA
through the FWS. 16 U.S.C. § 1532(15); 50 C.F.R. §§ 17.11,
402.01(b).

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4
habitat. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a).
Consultation requires the agency to prepare a Biological
Assessment, which identifies any protected species or habitats
likely to be affected by the proposed agency action. 16 U.S.C.
§ 1536(c).4 The Services then prepare a Biological Opinion
(BiOp) detailing how the species or critical habitat may be
affected. Id. § 1536(b)(3). If the Services determine that the
agency’s action is likely to jeopardize the continued existence
of a listed species or destroy or adversely modify a critical
habitat, the Services must propose reasonable and prudent
mitigation measures. Id. § 1536 (a)(2), (b)(3); see 50 C.F.R
§ 402.14(g)(4), (h)(3) (detailing the process). The agency, for
its part, must either terminate the action, adopt the Services’
proposal or seek an exemption. Weyerhaeuser Co. v. FWS, 586
U.S. 9, 15 (2018). The regulations implementing § 7 apply to
“all actions in which there is discretionary Federal involvement
or control.” 50 C.F.R. § 402.03.
Under § 9 of the ESA, no individual, private entity or
government may “take” a protected species, subject to civil and
criminal penalties. 16 U.S.C. §§ 1538(a)(1), 1540(a)–(b); see
also id. § 1532(13). To “take” a species is to “harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect” it or
to attempt to do so. Id. § 1532(19). But if a taking is incidental
to an otherwise lawful activity, the Services may exempt the
activity, subject to a conservation plan. Id. § 1539(a)(2); 50
C.F.R. § 402.02. If the Services conclude that an action is not
likely to jeopardize a listed species or habitat but that
“incidental take” is reasonably likely to occur, they must
prepare an Incidental Take Statement (ITS), which authorizes
4 If the Biological Assessment leads the agency to conclude that
its proposed action is not likely to adversely affect a listed species or
habitat, it can avoid formal consultation with the Services. 50 C.F.R.
§ 402.14(b)(1).

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5
the taking subject to applicable conditions. 16 U.S.C.
§ 1536(b)(4), (o)(2). Only federal agencies can obtain
exemption from ESA take requirements through § 7
consultations; states and private individuals must apply for an
individual permit under § 10, which authorizes “any taking
otherwise prohibited by” the ESA. Id. § 1539(a)(1)(B).
Around the time the ESA became law, the Congress also
enacted the Clean Water Act (CWA) to “restore and maintain
the chemical, physical, and biological integrity of the Nation’s
waters.” 33 U.S.C. § 1251(a). The CWA prohibits “the
discharge of any pollutant” into the waters of the United States
absent a permit. Id. §§ 1311(a), 1362(7). Section 404
authorizes the Army Corps of Engineers to issue permits “for
the discharge of dredged or fill material” into the waters of the
United States.5 Id. § 1344(a). If a permit affects a protected
species, the Corps must engage in a § 7 consultation under the
ESA.
The CWA codifies a congressional preference for “the
states . . . [to] implement the [CWA’s] permit programs.” Id.
§ 1251(b). To that end, states and tribal governments may
apply to the EPA to assume permitting authority over certain
waters—those not “presently used, or . . . susceptible to use . . .
as a means to transport interstate or foreign commerce
shoreward,” id. § 1344(g)(1), colloquially known as “assumed
waters.” Permitting for “interstate” waterways—also known
as “retained waters”—is retained by the federal agencies even
after a state assumes § 404 permitting authority. The
presumption is in favor of transferability. See id. § 1344(h)(3)
5 Dredging is the excavation of material from waters of the
United States and filling is the depositing of material into waters of
the United States. 33 C.F.R. § 323.2(c)–(f).

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6
(deeming any application not acted on within 120 days
approved).
Before the EPA approves a transfer of authority, however,
it must conclude that a state can satisfy all § 404 requirements.
Id. § 1344(h)(1)–(2). One requirement prohibits any discharge
that “[j]eopardizes the continued existence of [ESA] species
. . . or results in likelihood of the destruction or adverse
modification of a [critical] habitat.” 40 C.F.R. § 230.10(b)(3).
Post-transfer, a state must continue to notify the EPA of any
permit it approves and the EPA may object to or require that
additional conditions attach to an assumed-waters permit. 33
U.S.C. § 1344(j).
To sum up, whenever a federal agency authorizes, funds
or carries out any action, it must assess whether that action may
affect endangered or threatened species or their habitats. To do
so, the agency consults with the Services—the Fish and
Wildlife Service and the National Marine Fisheries Service—
under § 7 of the Endangered Species Act. As part of the
consultation, the Services prepare a Biological Opinion that
details whether the agency action is likely to jeopardize the
continued existence of a protected species or habitat. If the
answer is no, the agency action may proceed; if the answer is
yes, it generally cannot absent an exemption. Even if the
Services make a no-jeopardy determination, they must
separately assess whether the proposed action will result in
incidental take, i.e., cause injury to a protected species or its
habitat. If so, the Services then prepare an Incidental Take
Statement under § 7(o)(2) that exempts the action from take
liability under § 9. Individuals and states must go through a
separate process under § 10 to obtain a take exemption.
Dredging or filling (removing or adding) materials into
waters of the United States also requires a § 404 CWA permit.

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7
Permitting is managed by the Army Corps of Engineers but it
can authorize a state to manage permitting for non-interstate
waters of the United States. Before a state assumes § 404
permitting, it must demonstrate its own compliance with
several environmental laws and regulations. And, as described
below, the EPA has determined that a CWA § 404 transfer is a
federal action requiring ESA review.
B. Factual Background
In August 2020, Florida applied to the EPA to assume
CWA § 404 permitting authority. See Florida’s Request to
Assume Administration of a Clean Water Act Section 404
Program, 85 Fed. Reg. 57,853 (Sept. 16, 2020). But Florida
feared that once it assumed § 404 responsibilities, it and its
permittees would risk ESA liability for any incidental take of
an endangered or threatened species. Unlike a federal agency,
Florida could not consult the Services to obtain a § 7 ITS. To
avoid incidental take liability, it would be forced to obtain a
permit-by-permit exemption under § 10, a process that was
“burdensome” and could “take years.” J.A. 2033. So Florida
proposed a novel solution: the EPA could issue a “one-time
ESA Section 7 programmatic consultation in connection with
EPA’s initial review of a state application to assume the
Section 404 program.”6 Id. Florida’s plan works like this:
6 As defined by the Services, a programmatic consultation is:
A consultation addressing an agency’s multiple
actions on a program, region or other basis [about]
the effects of programmatic actions such as:
1. Multiple similar, frequently occurring, or
routine actions expected to be implemented in
particular geographic areas; and

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8
Section 7 requires a federal agency to consult the Services to
determine if agency action is likely to jeopardize a listed
species or critical habitat. 16 U.S.C. § 1536(a)(4). The EPA’s
approval of Florida’s § 404 assumption constitutes agency
action that would affect listed species and therefore triggers § 7
consultation. 50 C.F.R. § 402.14(a). At the end of that
consultation, the Services could issue a “programmatic” BiOp
and ITS that pulls every subsequent Florida permit under the
§ 7(o)(2) liability exemption. Under this plan, an individual
permittee would not need to go through the cumbersome § 10
process to obtain a one-off exemption for incidental take.
Instead, the Services would preemptively exempt all future
permits from incidental take liability, subject to protections
prescribed by the Services.
Florida’s request faced an immediate roadblock: the
EPA’s then-prevailing view was that a § 404 transfer of
permitting authority did not require § 7 consultation. Section
402 of the CWA contains a similar permitting program subject
to state assumption once qualifying conditions are met.
Applying Chevron deference, the Supreme Court upheld the
EPA’s conclusion that a § 402 transfer does not require § 7
consultation. The Court explained that two features of § 402—
its “mandatory” command that the EPA “shall approve” a
transfer and its “exclusive” list of qualifying conditions to
approve a transfer—meant that approval is non-discretionary
and thus agency regulations could reasonably exempt § 402
approvals from § 7 ESA consultation. Nat’l Ass’n of Home
Builders (NAHB) v. Defs. of Wildlife, 551 U.S. 644, 661–64
(2007). Section 404 similarly requires that the EPA “shall
2. A proposed program, plan, policy, or
regulation providing a framework for future
proposed action
50 C.F.R. § 402.02.

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9
approve” a transfer once a list of qualifying criteria is satisfied.
33 U.S.C. § 1344(h)(1)–(2). The EPA had therefore concluded
that its § 404 duties are likewise ministerial and not subject to
ESA § 7.7
Florida urged the EPA to revisit its position, arguing that
the text, legislative history and unique characteristics of § 404
made it discretionary in contradistinction to § 402. In May
2020, the EPA initiated a 45-day public-comment period on the
issue. See Request for Comment on Whether EPA’s Approval
of a Clean Water Act Section 404 Program Is Non-
Discretionary for Purposes of Endangered Species Act Section
7 Consultation, 85 Fed. Reg. 30,953 (May 21, 2020). After
reviewing the comments, the EPA concluded that “NAHB . . .
does not control . . . CWA Section 404” and, accordingly,
deemed § 404 a discretionary function. J.A. 2501. It then
approved Florida’s proposal that the Services issue a
programmatic BiOp and ITS.
In September 2020, the EPA submitted its Biological
Evaluation to FWS and requested ESA § 7 consultation. The
7 NAHB did not a fortiori control the EPA’s duties under § 404.
Not only is § 404 a separate—albeit similar—provision from the one
the Court construed in NAHB, but its holding also depended upon the
now-defunct Chevron framework. See Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 412 (2024). In NAHB, the Court reviewed
the Services’ regulation harmonizing the ESA and the CWA by
rendering § 7 applicable only to those “actions in which there is
discretionary Federal involvement or control.” 50 C.F.R. § 402.03.
Four justices thought the regulation conflicted with the plain text of
§ 7. See NAHB, 551 U.S. at 673–74 (Stevens, J., dissenting). The
five-justice majority held that the regulation was a reasonable
interpretation of the ESA under Chevron and that, because § 402
transfers were not discretionary, the regulations permissibly
exempted transfers from § 7 of the ESA. Id. at 673.

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10
EPA did not conduct consultations with NMFS because it
concluded that no species within NMFS’s jurisdiction lived in
assumed waters.8 In November 2020, FWS issued its BiOp,
which concluded that the EPA’s approval of Florida’s
permitting application was not likely to jeopardize any
protected species or critical habitat. Due to “substantial
uncertainty about the number, location, timing, frequency, and
intensity of regulated activity,” J.A. 2644, FWS could not
provide a “detailed analysis of potential effects.” J.A. 2658.
Instead, FWS summarized the types of activities that Florida
might permit and the areas where permits could be issued. It
then assessed the effect of these activities on “guilds” of
species, i.e., groups of species, including mammals and birds,
with similar traits and habitats.
FWS’s no-jeopardy determination rested on a myriad of
structural safeguards. Pursuant to a memorandum of
understanding (MOU) between FWS and Florida, FWS would
offer technical assistance to Florida to identify risks to listed
species and habitats and propose mitigation measures for those
risks. FWS would undertake that identify-and-mitigate process
for each permit Florida issued. After FWS’s review, Florida
would have two, and only two, choices: either incorporate
FWS’s proposed measures as terms and conditions of the
permit or deny the permit. Florida also amended its
administrative code to require coordination with FWS on a
permit-by-permit basis. See Fla. Admin. Code R. 62-331.051–
53.
8 The EPA subsequently revisited its position. In July 2023, it
requested consultation with NMFS after concluding that the indirect
effects of Florida’s assumption of authority could affect three NMFS
species. See ESA Biological Evaluation for CWA Section 404
Assumption by the State of Florida, § 8.3, p. 83–84 (July 2023)
[https://perma.cc/E9AX-662T].

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11
Pursuant to regulation, the EPA retains the right to review
and submit objections to state CWA permits unless review is
waived. See 40 C.F.R. §§ 233.50(a)–(b), 233.51. The EPA’s
memorandum of agreement (MOA) with Florida waives
federal review except for eight categories, one of which
includes “[d]ischarges with reasonable potential for affecting
endangered or threatened species as determined by []FWS.”
J.A. 1573; see 40 C.F.R. § 230.10(b)(3) (prohibiting such
discharges). Like FWS, the EPA can compel Florida to
incorporate the EPA’s prophylactic measures as a condition of
issuing a permit. 40 C.F.R. § 233.50(f). With two federal
agencies superintending Florida’s CWA program for ESA
compliance, FWS concluded that Florida’s § 404 assumption
was not likely to jeopardize listed species or critical habitats.
FWS also issued an ITS that exempted the EPA, Florida
and future permittees from ESA liability for any incidental take
pursuant to a state-issued permit. Like the BiOp, the ITS
concluded that it was infeasible to measure anticipated future
take across the life of the permitting program; accordingly,
FWS indicated that it would track future take on a permit-by-
permit basis and Florida offered to reopen permits if actual
impact on affected species deviated from projections.
With the programmatic BiOp and ITS in hand, the EPA
approved Florida’s § 404 application on December 17, 2020,
effective five days later. See EPA’s Approval of Florida’s
CWA Section 404 Assumption Request, 85 Fed. Reg. 83,553
(Dec. 22, 2020). The EPA’s approval was only the third
approval of a state’s assumption of § 404 authority, following
Michigan in 1984 and New Jersey in 1994. See 40 C.F.R.
§ 233.70–71.

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12
C. Procedural Background
Within weeks of the EPA’s decision, a collection of
environmental groups sued to challenge the EPA’s approval of
Florida’s application, FWS’s BiOp and ITS and the Corps’ list
of retained waters. On summary judgment, the district court
concluded that FWS’s BiOp and ITS “were facially and legally
flawed” and that the “EPA unreasonably relied on those
documents in approving Florida’s assumption application.”
Ctr. for Biological Diversity v. Regan, 734 F. Supp. 3d 1, 58
(D.D.C.), judgment entered, 729 F. Supp. 3d 37 (D.D.C. 2024).
As to the BiOp, the court fashioned a bespoke rule: that is,
a BiOp cannot assess species at the guild level. It reasoned that
the BiOp impermissibly deferred resolution of an essential
question—the impact on individual species—to the technical
assistance process, which “does not occur until after the federal
action [CWA transfer] is complete and . . . lacks a trigger for
reinitiating consultation.” Id. The court noted that a condition
precedent of § 7 consultation is a finding that agency action—
the EPA’s § 404 approval—is likely to adversely affect listed
species or critical habitats. Id. at 44. Having made that finding,
FWS could not then decide not to conduct a species-specific
analysis. Id.
As to the ITS, the court explained that it lacked a
“numerical take limit” or “clear standard for determining when
the level of anticipated take has been exceeded.” Id. at 52
(quoting 50 C.F.R. § 402.14(i)(1)(i)). As with the § 7
consultation, FWS could not issue an ITS unless it determined
“that incidental ‘take is reasonably certain to occur.’” Id. at 50
(quoting 50 C.F.R. § 402.14(g)(7)). Yet FWS specified no
species impact. Id. The coup de grâce for the EPA was its
failure to consult with NMFS. The court held that the EPA’s
failure was arbitrary and capricious because the EPA did not

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13
consider indirect effects on listed species in contravention of
agency regulations. Id. at 59–60 (citing 50 C.F.R. § 402.02).
Based on these purported defects, the court vacated the BiOp,
the ITS and the EPA’s approval of Florida’s application. Id. at
63–64.
II. ANALYSIS
I believe appellees’ challenges to the Biological Opinion
are wrong in fact and law. Legally, the ESA violations they
identify are absent from the plain text of the Act. Factually, the
BiOp checks all the statutory and regulatory boxes and its
bottom-line conclusion is neither arbitrary nor capricious.9
As a roadmap to the reader, § II.A.1 walks through a
nearly identical BiOp and permitting scheme that was upheld
by the Second Circuit and that served as the template for FWS
and Florida here. Section II.A.2 explains why the granular
species-specific analysis insisted on by the district court—and
pressed by appellees—has no statutory hook. Section II.A.3
explains that the BiOp is not contrary to law and § II.A.4
endorses the BiOp’s bottom-line conclusion. Because I agree
with my colleagues that the ITS is defective, § II.B discusses
what, in my view, should be the appropriate remedy. Finally,
§ II.C underscores the dangers of judge-made, atextual rules
that, in my view, conflict with principles of federalism.
A. The Biological Opinion
Section 7 of the ESA requires federal agencies to consult
the Services to ensure that their action “is not likely to
9 I agree with the majority that the ITS does not comply with the
ESA and its implementing regulations and that the EPA, as it now
concedes, erred in failing to consult with NMFS. My dissent is
therefore limited to the BiOp and the EPA’s resulting § 404 transfer.

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14
jeopardize the continued existence of any endangered species
or threatened species” or to destroy or adversely modify a
critical habitat. 16 U.S.C. § 1536(a)(2). Once an agency
concludes that its action “may adversely affect a listed species,
it must engage in a formal consultation.” Rancho Viejo, LLC
v. Norton, 323 F.3d 1062, 1064 (D.C. Cir. 2003) (citing 50
C.F.R. § 402.14). When consulted, the Services prepare a
BiOp that “detail[s] how the agency action affects the species
or its critical habitat.” 16 U.S.C. § 1536(b)(3)(A). As the name
implies, a Biological Opinion must give the Services’ bottom-
line opinion as to whether the proposed action is or is not likely
to jeopardize listed species or their critical habitat. Id.
The EPA asked FWS to render a programmatic § 7
consultation: one in which FWS assessed “multiple similar . . .
actions” and a “proposed program, plan, policy, or regulation
providing a framework for future proposed actions.” 50 C.F.R.
§ 402.02. FWS therefore properly focused its inquiry on
whether Florida’s “program, regulation, processes, and
procedures insure that EPA’s approval and [Florida’s]
subsequent assumption and implementation of the 404 program
is not likely to” jeopardize listed species and their habitats. J.A.
2608. The parties exchange endless volleys aimed at whether
FWS’s BiOp—and the EPA’s reliance thereon—was proper.
But at bottom, the parties’ dispute boils down to a simple
question: can FWS rely on structural safeguards in Florida’s
program to reach a no-jeopardy determination without
conducting an analysis of potential harm to each individual
species and habitat? In my view, it plainly can.
1. Cooling Water
Although ESA § 7 directs federal agencies to avoid
jeopardizing listed species and critical habitat, the statute is
silent on how agencies meet that obligation. See Gifford

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15
Pinchot Task Force v. FWS, 378 F.3d 1059, 1067 (9th Cir.
2004) (“[T]he ESA does not prescribe how the jeopardy prong
is to be determined”). It is therefore “for the agencies to
determine how best to structure consultation to fulfill Section
7(a)(2)’s mandate.” Defs. of Wildlife v. Dep’t of the Navy, 733
F.3d 1106, 1121 (11th Cir. 2013). Given the rarity of state-
controlled § 404 permitting, Florida chose to model its program
on a comparable scheme upheld by the Second Circuit in
Cooling Water Intake Structure Coalition. v. EPA, 905 F.3d 49
(2d Cir. 2018).
Cooling Water involved a nearly identical CWA
permitting scheme under the previously-discussed neighboring
provision, § 402. There, the EPA promulgated a new
regulation governing the requirements for cooling water intake
structures. Id. at 58. The rule was to be implemented through
state-issued CWA permits. Because cooling water intake
structures can kill many aquatic species each year, the EPA
sought ESA § 7 consultation with the Services, which then
prepared a BiOp approving the rule change. Id. There, as here,
the Services relied on a programmatic approach because it was
infeasible to analyze the innumerable permits that a state might
issue in the future. Id. at 71. There, as here, the Services
reached a no-jeopardy determination based on a technical
assistance process that allowed the relevant federal agencies to
review individual state permit applications and supplement
them with necessary safeguards to shield at-risk species. Id. at
72, 74. And there, as here, environmental groups claimed that
the Services violated the ESA “by deferring analysis of the
[agency action’s] impact on jeopardy to the permit-specific
review stage.” Id. at 73.
The Second Circuit swept their challenge aside. As it
noted, the environmentalists’ claims were “really challenges to
the Services’ ‘programmatic’ approach to the biological

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opinion,” an approach that it correctly deemed consistent with
the statute. Id. at 71. The court explained that nothing in the
ESA requires a BiOp to assess every future phase—i.e., future
permits—of an agency action on a site- or species-specific
basis. Id. at 73 (citing Defs. of Wildlife, 733 F.3d at 1121).
Instead, the Services were free to point to the procedural
safeguards that attach to future permits—the technical
assistance process that guarantees eventual site- and species-
specific assessments—as a basis for its no jeopardy finding. Id.
Appellees seek to distinguish Cooling Water on two grounds.
Neither suffices.
a. Cooling Water is Not Distinguishable
First, Appellees contend that there was “little, if any data
available [in Cooling Water] to inform species analysis at the
programmatic level” but, here, FWS has “ample data.” Red Br.
65; see also Regan, 734 F. Supp. 3d at 46 (asserting that FWS
possessed “reams of data from previous Section 7
consultations”). That contention misunderstands Cooling
Water. The salient question is not what data FWS possessed;
it is how FWS was required to use that data. In Appellees’
view, FWS should have used available data from federally
issued § 404 permits to conduct a species-by-species analysis.
In no uncertain terms, Cooling Water rejected that approach.
See Cooling Water, 905 F.3d at 75 (holding that FWS could
“defer[] evaluation of [the agency action]’s effects on the
species” rather than analyze then-available data).
Second, Appellees argue that, unlike in Cooling Water, the
technical assistance process here is “not codified” and therefore
not “legally binding.” Red. Br. 66; see also Regan, 734 F Supp.
3d at 47 (expressing a similar concern that the technical
assistance procedure appears in the BiOp, not in the Federal
Register). But how FWS and the EPA choose to memorialize

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their technical assistance program is of no moment. FWS
signed a binding MOU with Florida memorializing the
“processes and procedures that [govern] . . . Florida’s
assumption of the CWA 404 program,” including the technical
assistance process. J.A. 1556. The EPA likewise entered an
MOA with Florida that fixed those procedures in contract. And
Florida amended its administrative code to codify both
agencies’ requirements. See Fla. Admin. Code R. 62-331.051–
.053.
The Government’s and Florida’s adherence to these
agreements is “entitled to the presumption of regularity.”
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402,
415 (1971), abrogated on other grounds by Califano v.
Sanders, 430 U.S. 99 (1977); accord FDA v. Wages & White
Lion Invs., L.L.C., 145 S. Ct. 898, 922 (2025) (rejecting the
argument that an agency might secretly act contrary to its
public pronouncements, relying on the presumption of
regularity); El Puente v. Army Corps of Eng’rs, 100 F.4th 236,
255–56 (D.C. Cir. 2024) (relying on NMFS’s “promise” that it
would diligently act under a comparable monitoring plan to
uphold its determination that agency action was unlikely to
affect endangered species).
Indeed, Appellees’ (and the district court’s) concern was
squarely addressed and rejected by Cooling Water. There the
challengers similarly bemoaned that there was “no formal
assurance” that the Services would hew to the technical
assistance program. Cooling Water, 905 F.3d at 72 (citation
omitted). The Second Circuit disagreed. The court (i) cited a
Ninth Circuit decision treating comparable memoranda as
enforceable, (ii) quoted a Services ESA Handbook echoing that
implementation of such agreements is required and
(iii) explained that the procedures were mandatory because the
Services conditioned their no-jeopardy finding on compliance

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and represented to the court their commitment to the
procedures. Id. In my view, the same result should obtain here.
b. Cooling Water was Correctly Decided
Notwithstanding the district court’s attempt to distinguish
Cooling Water, see Regan, 734 F Supp. 3d at 47, its conclusion
was that Cooling Water was wrongly decided, see id. at 48
(“Cooling Water is at odds with the statute, regulations, and
caselaw”). According to the district court, the “critical
misstep” in the Second Circuit’s reasoning was conflating two
distinct concepts. Id. Cooling Water explained—and the
district court accepted—that a BiOp “need not ‘assess every
future’ species-specific effect” at the outset. Id. (quoting
Cooling Water, 905 F.3d at 73). But, the district court
explained, “a phased approach to consultation” is permissible
only if “complete and adequate” § 7 consultation “occur[s] at
some point.” Id. (citation modified). That is, a programmatic
approach allows the Services either to conduct a species-
specific BiOp at the outset of the consultation or to conduct a
future § 7 consultation; nevertheless, the Services cannot rely
on a non-§ 7 process—like technical assistance—to satisfy the
species-specific analysis the court thought critical. Id.
Yet the district court committed the very mistake it
ascribed to Cooling Water: it disregarded the statute and its
regulations. No party disputes that the Services must comply
with § 7. The Government’s contention was and is that it did
comply and, having satisfied its § 7 obligations—in part based
on future implementation of procedural safeguards—it did not
need to reengage in § 7 consultations for each future action.
Neither regulation nor statute says otherwise.
First, the regulations. The district court construed the
Services’ “programmatic consultation” regulations to exclude
categorically future state involvement. Id. at 49. This was so,

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19
the court explained, because the “phrase is defined in the
regulations” as “‘a consultation addressing an agency’s
multiple actions,’ 50 C.F.R. § 402.02—not a single agency
action followed by state-licensing decisions . . . that . . . do not
constitute federal action subject to Section 7 consultation.” Id.
That is wrong twice over. Factually, there are several agency
actions here: the EPA’s transfer of permitting authority and the
EPA’s and FWS’s subsequent reviews of individual state
permits. Legally, the court’s concerns were misguided. It
insisted that any follow-on technical assistance was deficient
because it would not be subject to another round of § 7
consultations. But the regulations expressly recognize that
programmatic actions sometimes involve scenarios in which
future “action(s) will not be subject to further section 7
consultation.” 50 C.F.R. § 402.02. If the Services reached a
proper programmatic determination on the front end, nothing
requires FWS to retrace a path to § 7 on the back end.
Next, the statute. The district court believed that a
programmatic consultation cannot “defer[] detailed, species-
specific analysis” to the technical assistance process. Regan,
734 F Supp. 3d at 49; see also id. at 42 (“[A]nalysis at the guild-
level fails the statutory and regulatory demand to assess the . . .
effects at the species-level”). Put another way, the court read
the ESA to mandate a detailed, species-specific analysis as part
of § 7 consultation. But nothing in the statute commands such
a granular assessment for § 7 consultations generally and so
none can be grafted onto a programmatic consultation. Cooling
Water’s holding flows naturally from the ESA’s text and
implementing regulations.
2. A Guild-Based Approach is Consistent with the ESA
To assess the environmental impact of the EPA’s transfer
of permitting authority, FWS’s BiOp used a guild-based

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20
approach. A guild is “a group of organisms that use the same
ecological resources in the same way.” Guild (n.), additional
sense, Oxford Eng. Dictionary, https://doi.org/10.1093/
OED/7855507680 [https://perma.cc/4RGX-ZTK2]. But
Appellees’ argument—and the district court’s reasoning—is
that FWS must instead, on a species-by-species basis, detail the
effects of the EPA’s transfer. The ESA contains no such
mandate.
Start with the text. Section 7 requires a Biological Opinion
“detailing how the agency action affects the species or its
critical habitat.” 16 U.S.C. § 1536(b)(3)(A). Appellees latch
on to two statutory phrases—“detailing” and “the species or its
critical habitat”—that they claim bar analysis at the guild level.
From this textual pinhead, they attempt to poke a fatal hole in
FWS’s BiOp. Their attempt fails.
The statute does not otherwise define “detailing” so it
carries its “ordinary or natural meaning.” HollyFrontier
Cheyenne Ref., LLC v. Renewable Fuels Ass’n, 594 U.S. 382,
388 (2021). Dictionaries contemporaneous with the ESA’s
enactment define the phrase as (i) “to report minutely and
distinctly: specify,” Detail (vt), sense 1, Webster’s New
Collegiate Dictionary (1973), and (ii) “to relate in particulars”
or “enumerate, specify,” Detail (v), senses 1 & 2, Webster’s
Third New Int’l Dictionary of the Eng. Language Unabridged
(1976). As these definitions manifest here, “detailing” has a
dual meaning: both a description of the act of recording and the
specificity with which that record should be made. At a
minimum, then, BiOps must explain the Services’
understanding of how agency action will affect listed species
and habitats in a manner that is not “too vague, too general and
too conclusory.” Silva v. Lynn, 482 F.2d 1282, 1284 (1st Cir.
1973) (quoting Env’t Def. Fund, Inc. v. Froehlke, 473 F.2d 346,
348 (8th Cir. 1972)) (explaining the requirements of the

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21
National Environmental Policy Act (NEPA)’s similarly
phrased “detailed statement” requirement). Put another way,
the BiOp must explain “its course of inquiry, its analysis, and
its reasoning” in a manner that “permits the court to ascertain
whether the agency has made a good faith effort” to comply
with the statute. Id. (quoting Ely v. Velde, 451 F.2d 1130, 1139
(4th Cir. 1971)).
Precisely “[h]ow much information is enough . . . . is not a
question to which” the ESA provides an answer. Alaska v.
Andrus, 580 F.2d 465, 473 (D.C. Cir. 1978) (describing
NEPA’s similar language), vacated in part on other grounds
sub nom. W. Oil & Gas Ass’n v. Alaska, 439 U.S. 922 (1978).
“Detail” is a word of degree lacking any checklist or bright-line
rule. And so, although “the meaning of ‘detailed’ is a question
of law . . . . what details need to be included in any given
[BiOp] . . . . involves primarily issues of fact” to which we owe
robust “judicial deference.” Seven Cnty. Infrastructure Coal.
v. Eagle Cnty., 145 S. Ct. 1497, 1512 (2025) (citation omitted).
Sometimes, a species-by-species analysis may prove necessary
to weigh the effects of the agency action. But in other
circumstances, a guild-based grouping is sufficient.10 The
question is not one of statutory interpretation so much as the
application of arbitrary and capricious review, according to
which we owe an “extreme degree of deference” to the
agency’s scientific expertise. City of Waukesha v. EPA, 320
F.3d 228, 247 (D.C. Cir. 2003) (citation omitted); see also Balt.
Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87,
103 (1983) (emphasizing that courts must be at their “most
deferential” when reviewing an agency’s “scientific
determination”).
10 For example, if a proposed agency action uniformly affects
similarly situated species or habitats, the Services can “detail” the
effects at the guild level.

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22
The surrounding statutory context confirms as much. The
Services’ jeopardy determination is to be driven by “the best
scientific and commercial data available.” 16 U.S.C.
§ 1536(a)(2). The Congress thus understood that as available
inputs might fluctuate, so might the specificity of outputs. That
does not mean, as Appellees contend, that the meaning of
“detail” will “vary” to mean “different[] [things] at different
times.” Red Br. 52. The meaning of “detailing” is fixed—but
that fixed meaning is a standard whose application varies
depending on the facts. Nothing in the ordinary meaning of
“detailing” compels the level of analysis that Appellees seek to
impose. Instead, their “contentions boil down to questioning
the degree of detail rather than the lack of it.” Sierra Club v.
Morton, 510 F.2d 813, 825 (5th Cir. 1975).
Appellees find no more support in the remainder of the
text. They emphasize that § 7 speaks to “‘the species’ and ‘its
habitat,’” purportedly making plain that the Congress intended
individualized assessments. Red Br. 49–50. That conclusion
does not follow. A focus on harm to individualized species is
also consistent with an approach that groups species facing
similar risks. In other words, the agency must consider all
listed species and propose “reasonable and prudent
alternatives” if agency action jeopardizes the continued
existence of any listed species. 16 U.S.C. §§ 1536(a)(2),
(b)(3)(A). But in “detailing how the agency action affects”
listed species, id. § 1536(b)(3)(A), agencies can group together
species that are affected in a comparable manner.11
11 Indeed, the statute does not logically cohere under the
Appellees’ reading that “the species” and “its habitat” can mean only
the singular. A BiOp may describe how agency action affects
potentially hundreds of species or one species across multiple
habitats. These phrases must therefore sometimes carry a plural

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Finally, Appellees tout—and the district court relied on—
a non-binding and out-of-circuit district court decision that,
they claim, rejected a guild-level analysis. See Red Br. 50–51
(citing Forest Serv. Emps. for Env’t Ethics v. Forest Serv., 726
F. Supp. 2d 1195 (D. Mont. 2010)); Regan, 734 F Supp. 3d at
46, 55 (similarly relying on Forest Service Employees). There,
FWS used a similar guild-level approach to a programmatic
BiOp. See Forest Serv. Emps., 726 F. Supp. 2d at 1202, 1204.
FWS argued that its approach was necessary based on the
number of affected species (387) and the scope of the affected
area (192 million acres). Id. at 1224. The court nevertheless
deemed the BiOp inadequate, explaining that convenience
could not excuse compliance. Id. From Forest Service
Employees, Appellees derive the mistaken proposition that
BiOps must include species-specific analyses. That misreads
the district court’s holding.
In Forest Service Employees, FWS applied a process it
termed a “coarse filter” to prepare its BiOp. The filter worked
like this: FWS grouped 387 species into guilds, then applied a
four-step risk profile to assess whether each species was likely
to be jeopardized by the Forest Service’s action. Id. at 1204.
FWS (i) assumed that well-distributed, population-dense
species were at low risk of jeopardy; (ii) considered the
likelihood that some species would be exposed to the agency
action; (iii) asked whether exposure was likely to result in take;
and (iv) assessed whether the amount of take would likely
jeopardize a species’ continued existence. Id. Coarse filtering
removed more than half of the species from FWS’s list. Id.
The remainder were then subject to more detailed analysis.
The failure in FWS’s approach was not its guild-level grouping
but its neglect of the effects on critical habitats. As the court
meaning—as the Dictionary Act sensibly commands. See 1 U.S.C.
§ 1 (instructing that singular words import the plural and vice versa).

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noted, “[n]one of the four [coarse filter] prongs deals with the
value of critical habitat for recovery.” Id. at 1224. There were
several species for which critical habitat analysis was
“nonexistent.” Id. The failure to consider critical habitats—
not the guild-level approach of the BiOp—is what proved fatal.
Indeed, the court went on to reject precisely the argument
Appellees try to extract: “Defendants correctly point out that
the law does not impose an artificial obligation to include a
section expressly discussing recovery for every species.” Id. at
1225 (citation modified). In other words, Forest Service
Employees agreed that FWS could group like-species
together—it simply could not use that grouping to excuse a
failure to assess differences in critical habitats. Insofar as the
case can be read to stand for anything more, it offers no
controlling or persuasive reason to impose atextual species-
specific requirements on FWS.
The district court’s insistence that FWS tick off each and
every species with its own separate analysis is simply a judge-
made requirement that obfuscates the critical inquiry: whether
FWS assessed how the relevant action under review will affect
species and habitats and reached a bottom-line conclusion that
is neither arbitrary nor capricious.
3. The BiOp Satisfies ESA Procedures
FWS’s statutory obligation is remarkably succinct: it need
only “detail[] how” the EPA’s transfer of § 404 authority
“affects [listed] species or [their] critical habitat.” 16 U.S.C.
§ 1536(b)(3)(A). By regulation, the Biological Opinion must
include a (1) a “summary of the information on which the
opinion is based;” (2) a “detailed discussion of the
environmental baseline;” (3) a “detailed discussion of the
effects of the action on listed species or critical habitat;” and
(4) FWS’s opinion on whether the action is likely “to

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25
jeopardize the continued existence of a listed species or result
in the destruction or adverse modification of critical habitat.”
50 C.F.R. § 402.14(h). No party disputes that the BiOp
includes the requisite first step summary; the remaining three
factors—and the failure of Appellees’ contrary to law
challenge—are discussed in turn.
a. The Environmental Baseline
A BiOp must discuss the environmental baseline in detail.
Id. The environmental baseline is the condition of the species
or habitat before the proposed action, including “the past and
present impacts of all Federal, State, or private actions . . . in
the action area.” Id. § 402.02. The district court did not pass
on the correctness of FWS’s baseline assessment, see Regan,
734 F. Supp. 3d at 43–44, but Appellees argue that the BiOp
gave short shrift to this step in the process.12
Appellees do not dispute that the BiOp adequately
documented past and present actions and the condition of
Florida’s habitats. Instead, they argue that FWS did not explain
how both affect listed species. The BiOp itself does not discuss
the condition of any species but that is because the BiOp
incorporates by reference the EPA’s Biological Evaluation.
The Biological Evaluation contains an eighty-page table of all
listed species in the affected area and their known
environmental stressors along with further information on the
critical habitats and their historic degradation.
Appellees complain that the baseline assessment does not
meticulously describe how past and present activities affect
each of the 235 documented species but they raise this point in
12 Appellees preserved the argument for review. They argued
below that the baseline was inadequate—the district court simply
declined to reach the issue given the other defects it identified.

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26
a single sentence. See POM Wonderful, LLC v. FTC, 777 F.3d
478, 499 (D.C. Cir. 2015) (noting that arguments made “in
conclusory fashion and without visible support” may be
deemed forfeited) (citation omitted). Appellees’ primary
complaint is that FWS simply “copied [the EPA’s] Biological
Evaluation’s baseline section” and the EPA, in turn, lifted
significant portions of its assessment from “a Biological
Assessment Florida had prepared for EPA.” Red Br. 40.
FWS’s efficiency-based process should be lauded—not
lambasted.
Environmental review is arduous, often involving
hundreds if not thousands of pages of analysis. See
Appalachian Voices, 139 F.4th at 918 n.1, 922–23 (Henderson,
J., concurring). For that reason, agencies often incorporate by
reference the work of another agency. See, e.g., City of
Sausalito v. O’Neill, 386 F.3d 1186, 1214 (9th Cir. 2004)
(noting an environmental statement incorporated external data
by reference); Hughes River Watershed Conservancy v.
Glickman, 81 F.3d 437, 445 n.6 (4th Cir. 1996) (“A federal
agency may adopt an [environmental statement] prepared by
another federal agency”); Christian Broad. Network, Inc. v.
Copyright Royalty Tribunal, 720 F.2d 1295, 1306 (D.C. Cir.
1983) (“[A]n agency may explain itself by incorporating by
reference parts of the record”). The purpose of a BiOp “is not
to generate paperwork . . . but to foster excellent action.” Dep’t
of Transp. v. Pub. Citizen, 541 U.S. 752, 768–69 (2004). As
judges are acutely aware, excellent results can—and often
are—achieved by incorporating the work of others. See
generally today’s opinions; compare Alexander Hamilton,
Final Version of An Opinion on the Constitutionality of an Act
to Establish a Bank (Feb. 23, 1791), reprinted in 8 The Papers
of Alexander Hamilton, 97, 97–134 (Harold C. Syrett. ed.,
1965), with McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,
332–34 (1819) (parroting Hamilton’s reasoning).

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27
Of course, incorporation cannot be used as a backdoor for
wholesale abdication of an agency’s statutory duties. But FWS
did not “delegate its responsibility” to reach an independent
opinion. Gerber v. Norton, 294 F.3d 173, 185 (D.C. Cir. 2002).
The environmental baseline is simply a factual compilation of
the status quo ante. FWS rendered an independent no-jeopardy
determination based on its assessed risks to species; it simply
relied, in part, on the data of the EPA (and Florida) to capture
baseline conditions. Nothing in the ESA requires FWS to
gather that information independently. See Sw. Ctr. for
Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C. Cir.
2000). To the contrary, FWS must rely on the “the best . . .
data available” whatever the data’s origin. 16 U.S.C.
§ 1536(a)(2).
b. Effects of the Action
A BiOp must also include “[a] detailed discussion of the
effects of the action on listed species or critical habitat.” 50
C.F.R. § 402.14(h). The effects of the action are broadly
defined by regulation to include “the consequences of other
activities that are caused by the proposed action,” even if
“outside the immediate area involved in the action.” 50 C.F.R.
§ 402.02. Again, Appellees fault FWS for taking a guild-based
approach rather than conducting a species-specific analysis.
And again, their argument fails under the regulation for the
reasons it failed under the functionally identical statutory text:
the granularity Appellees demand is nowhere in law.
Appellees next fault FWS for assessing the effects of
dredge-and-fill activities on guilds “at the 30,000-foot level.”
Red Br. 41. Their altimeter might ring true but they use the
wrong sight line.
FWS was charged with measuring the effects of “the
action” on listed species and habitats. 50 C.F.R. § 402.14(h)

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28
(emphasis added). The relevant action is not any individual
dredge or fill. Indeed, it is not any current action that may
affect a species or habitat. Instead, FWS must compare one
speculative future to another: a world in which the Army Corps
retains § 404 authority and a world in which Florida assumes
control. As it explained, “uncertainties surrounding the
location, timing, frequency, and intensity of State 404 permit
actions” necessarily rendered FWS’s task an exercise of
informed conjecture. J.A. 2656. Nevertheless, FWS gave a
more than adequate account of the discernible effects of the
EPA’s transfer. Based on the best available evidence, FWS
determined that transfer “is not expected to increase or
decrease the future number of CWA section 404 regulated
activities.” J.A. 2657. FWS further determined that the
technical assistance process it designed would be “as
protective” of listed species and critical habitat “as the section
7 interagency consultation processes that occur in the operation
of [the Corps’] 404 Program.” Id. Accordingly, FWS used
historic § 7 data to guide its approach.
FWS first identified 235 species that could be affected by
Florida’s assumption of § 404 permitting. It then explained the
types of activities that could lead to dredge or fill permits,
including agriculture, commercial development and mining,
among others. It delineated between the retained and assumed
waters of the United States and described the habitats contained
therein. It also categorized different types of effects on listed
species, which FWS termed “stressors.” It then discussed how
these stressors would affect guilds of species at the “macro”
level, explaining that the approach taken was “intentionally
broad” because “[i]mpact analysis on the species level” was
contained in a separate table. J.A. 2660–66; see J.A. 2426–76
(individualizing the species).

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29
Appellees contend that FWS’s approach cloaked
meaningful differences within guilds. Their argument is belied
by the record. Take mammals. FWS divided the “mammals”
guild—consisting of just twenty-two animals—into seven
different subgroups based on their environment:
wetland/marsh, forest/grasslands/swamps, tropical hardwood
hammock/mangrove, caves, pine rockland, beach/scrub dune
and aquatic. It then assessed the anticipated effects of the
EPA’s transfer on each subgroup based on potential dredge and
fill activities in their shared habitats. FWS’s approach was
meticulous. It concluded that seventeen mammals were likely
to be adversely affected by the action but the remaining five
were not. Even within subgroups, FWS reached differing
outcomes for individual species. For example, FWS concluded
that the Red Wolf was not likely to be adversely affected but
the Florida Panther was, despite both occupying the
“forests/grasslands/swamps” subgroup. Similar fine-tuned
distinctions are found throughout the BiOp.13
As evidence to the contrary, Appellees highlight that
“FWS lumped together the threatened key largo woodrat with
the endangered Florida bonneted bat” when “[h]abitat loss is
the predominant threat to the woodrat, while the bonneted bat
is also affected by water quality changes.” Red Br. 41–42.
This is precisely the sort of “flyspeck[ing]” of an agency’s ESA
determinations that we have repeatedly rejected. El Puente,
100 F.4th at 246 (quoting Sierra Club v. DOE, 867 F.3d 189,
196 (D.C. Cir. 2017)); accord City of Waukesha v. EPA, 320
13 Although FWS analyzed individual species to assess whether
they were likely to be affected by the EPA’s action, its no-jeopardy
determination looked exclusively at species guilds because the
protections of the technical assistance process protected each species
in a similar manner. As explained supra II.A.2., an exclusively
guild-based assessment is consistent with the EPA if groups of
species will be similarly affected (or protected).

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30
F.3d 228, 247 (D.C. Cir. 2003) (per curiam) (noting the
“extreme degree of deference” we accord to an agency
“evaluating scientific data within its technical expertise”)
(citation omitted). But even accepting Appellees’ proffered
evidence, they are hoist on their own petard. FWS identified
three listed mammals inhabiting the “tropical hardwood
hammock/mangrove” habitat. Two of these mammals—the
Florida Bonneted Bat and the Key Largo Woodrat—were both
listed as likely to be affected but for differing reasons. The
third—the Key Largo Cotton Mouse—was deemed unlikely to
be affected by the EPA’s transfer due to the species’ restricted
range. Appellees’ own evidence, apparently unintentionally,
manifests the fastidious approach FWS took in the Biological
Opinion.
c. FWS’s Opinion
Finally, FWS was required to include its opinion on
whether the EPA’s transfer of § 404 authority is likely “to
jeopardize the continued existence of a listed species or result
in the destruction or adverse modification of critical habitat.”
50 C.F.R. § 402.14(h). Appellees contend that FWS violated
that final step because it “did not analyze the baseline or
effects” and therefore lacked “a substantive basis to” reach its
no-jeopardy determination. Red Br. 42. As explained above,
FWS analyzed both the baseline and the effects. There is no
dispute that FWS offered an opinion; Appellees simply
disagree with it. That is an issue subject to arbitrary and
capricious review, which is addressed next.
4. The BiOp’s Substantive Determination is not
Arbitrary or Capricious
Appellees have a tough row to hoe. To prevail, they must
show that the BiOp “is not a product of reasoned
decisionmaking”—“a heavy burden, since State Farm entails a

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very deferential scope of review that forbids a court from
substituting its judgment for that of the agency.” Van Hollen,
Jr. v. FEC, 811 F.3d 486, 495 (D.C. Cir. 2016) (citation
modified). That principle is no less true when an agency deals
with unavoidable uncertainty, as “[v]irtually every decision
must be made under some uncertainty; the question is whether
[FWS’s] response, given uncertainty, is supported by
substantial evidence and not arbitrary and capricious.” Dept of
Interior v. FERC, 952 F.2d 538, 546 (D.C. Cir. 1992). If data
is uncertain, the Court must “proceed with particular caution,
avoiding all temptation to direct the agency between rational
alternatives.” Am. Wildlands v. Kempthorne, 530 F.3d 991,
1000 (D.C. Cir. 2008) (citation omitted).
Appellees spill lots of ink explaining that programmatic
consultation cannot be used as an end-run around § 7. But no
one says it can. The question is whether FWS properly reached
a no-jeopardy determination in light of future structural
safeguards.
On the merits, FWS reasonably reached a no-jeopardy
determination. As FWS emphasized from the outset,
“substantial uncertainty” attached to any good-faith effort to
predict how Florida’s assumption of permitting authority
would affect individual listed species and habitats. J.A. 2644.
Rather than engage in rote speculation about future Floridian
permits—or simply assume away the problem wholesale—
FWS sensibly crafted a mechanism for follow-on review to
ensure ESA protections permit-by-permit. And based on that
permit-by-permit review, FWS reasonably concluded that it
was not “more likely than not” that the EPA’s transfer would
“jeopardize a species.” Me. Lobstermen’s Ass’n v. Nat’l
Marine Fisheries Serv., 70 F.4th 582, 595 (D.C. Cir. 2023).

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Appellees insist that uncertainty does not authorize FWS
to defer to a later date a species-by-species assessment of the
harms emanating from transfer. They argue that FWS should
have given its best account of projected harms, “even if [the
data] is ‘quite inconclusive.’” Red Br. 46–47 (quoting Babbitt,
215 F.3d at 60). But Babbitt simply rejected the argument that
the Services are required to independently generate better data
if the data is inconclusive. Babbitt, 215 F.3d at 60–61. It did
not hold that agencies possessing only inconclusive data must
nevertheless project the consequences of their action ad
infinitum. To the contrary, if we required perfect foresight of
the “relevant environmental effects” “before action may be
taken, . . . it is doubtful that any project could ever be initiated.”
Andrus, 580 F.2d at 473 (quoting Jicarilla Apache Tribe of
Indians v. Morton, 471 F.2d 1275, 1280 (9th Cir. 1973)); see
also Me. Lobstermen’s Ass’n, 70 F.4th at 596 (“To say
uncertainty is a reason to veto a federal action is to say that
many valuable activities must cease, even if the risk of
jeopardy is not ‘likely’”); cf. Hamilton, supra (“If the abuses of
a beneficial thing are to determine its condemnation, there is
scarcely a source of public prosperity, which will not speedily
be closed”). There is sometimes “no substitute for reviewing
the actual results of a regulatory action.” Elec. Consumers Res.
Council v. FERC, 407 F.3d 1232, 1238 (D.C. Cir. 2005)
(citation omitted). That does not mean that FWS may forego
ESA assessment before the relevant agency action is complete.
It simply means that FWS’s conclusion must utilize the tools at
hand. Here, FWS properly accounted for post-action
safeguards built into Florida’s permitting scheme.
Our Court has repeatedly relied on an agency’s future
oversight as a basis for present-day approval. See Blumenthal
v. FERC, 552 F.3d 875, 882 (D.C. Cir. 2009) (“FERC
reasonably relied on its continuing oversight of the market”);
Elec. Consumers Res. Council, 407 F.3d at 1239 (“[T]he

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deference the court affords the Commission is based on the
understanding that the Commission will monitor its experiment
and review it accordingly”). That principle applies with added
vigor in the environmental context. See, e.g., El Puente, 100
F.4th at 255 (upholding ESA no-jeopardy determination based
on “the agencies’ reliance on a [future] monitoring plan and a
promise to take action”); Theodore Roosevelt Conservation
P’Ship v. Salazar, 616 F.3d 497, 517 (D.C. Cir. 2010)
(upholding “adaptable mitigation measures . . . in light of the
inherent uncertainty of environmental impacts”).
The protections of the technical assistance process more
than justify FWS’s no-jeopardy determination. Indeed, as
shown below, the protections are comprehensive:
J.A. 1568.

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First, Florida modeled its § 404 scheme on FWS-approved
permitting guidance used by the Army Corps of Engineers in
its CWA program. Second, Florida designated state officials
to participate in a technical team that, alongside FWS, managed
the species coordination process and assisted in the federal-to-
state handover. Third, the relevant state agencies’ staffs were
trained on species-review procedures, using training material
jointly developed by Florida and FWS. These first three
safeguards operated before any federal handover of permitting
authority. Fourth, all § 404 applications submitted to Florida
were forwarded to FWS for independent review. Fifth, FWS
offered mitigation measures necessary to avoid jeopardizing
protected species or habitats and Florida was required to either
accept these measures or deny the permit. Sixth, even when
Florida successfully runs this regulatory gauntlet, the EPA
retains independent oversight to veto any permit that provides
insufficient protection to listed species or critical habitats.
Together, these procedures make any differences in net
environmental impact between state- and federal-led
permitting processes highly unlikely and more than satisfy “our
narrowly defined duty” to police FWS’s compliance with
“minimal standards of rationality.” Ethyl Corp. v. EPA, 541
F.2d 1, 36, (D.C. Cir. 1976) (en banc).
Precedent proves the point. In Salazar, our Court upheld
a species mitigation procedure comparable to the one at issue.14
There, the Bureau of Land Management (BLM) reviewed a
single project that would form the genesis for “approximately
2000 new natural gas wells . . . over the span of 30 to 50 years.”
Salazar, 616 F.3d at 505. As with FWS here, BLM could not
14 Salazar involved review of an Environmental Impact
Statement under NEPA but its disposition applies here. The relevant
agency was obligated to conserve and improve the condition of a
protected species and its habitat and the contemplated action affected
both. Salazar, 616 F.3d at 505.

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feasibly measure the innumerable downstream consequences
so it adopted an oversight plan to monitor and mitigate adverse
impacts to wildlife on an application-by-application basis. Id.
at 506. BLM “outlined the basic conditions of approval for
drilling applications” but “left many specific . . . decisions for
a case-by-case determination.” Id.; see also id. at 516
(acknowledging that BLM’s program was “flexible,” could be
“modif[ied]” and that “exact application of mitigation
measures” would be fleshed out “on a site-specific basis” only).
We not only deemed these protections adequate; we called the
plan “a responsible decision in light of the inherent uncertainty
of environmental impacts.” Id. at 517.
Appellees urge that our analysis should disregard the
technical assistance process. They assert that FWS
insufficiently committed itself to the technical assistance
process. This is so, in their view, because the BiOp states that
FWS “may” provide assistance and “may or may not” suggest
measures “as needed.” That argument has no purchase. FWS’s
commitment is “entirely voluntar[y]” only if one reads the
BiOp with a blinkered eye. Red Br. 57. FWS was emphatic: it
“will participate in [the] State 404 program,” it “will
collaborate on developing . . . training material,” Florida “shall
. . . forward” § 404 applications to FWS after which the state
“will incorporate as permit conditions all recommend[ations]
. . . provided by the []FWS.” J.A. 2668–69, 2672 (emphasis
added). The “mays” that Appellees emphasize are no more
than a recognition that not every § 404 permit will affect a
listed species or critical habit and thus FWS “may or may not”
need to impose additional restrictions. And, as noted supra
II.A.1.a, the Government’s adherence to these protections is
entitled to the presumption of regularity.
Appellees insist that the presumption carries no weight
because it “does not render a discretionary future commitment

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mandatory.” Red Br. 59–60. As previously discussed, FWS
has no license to shirk its ESA duties and “[w]e generally
presume that government agencies comply with the law.”
WildEarth Guardians v. Conner, 920 F.3d 1245, 1261 (10th
Cir. 2019); accord FCC v. Schreiber, 381 U.S. 279, 296 (1965)
(same). The Court has relied on less binding commitments
than the one here to sustain agency action. See El Puente, 100
F.4th at 255 (“a promise” from NMFS); Salazar, 616 F.3d at
516 (BLM’s commitment “to strive for” performance goals);
Wheaton Coll. v. Sebelius, 703 F.3d 551, 552 (D.C. Cir. 2012)
(per curiam) (the “word” of the government at oral argument);
see also Cooling Water, 905 F.3d at 72 (same).
* * *
Environmental review is already one of the most arduous
hills for federal agencies to climb. We should not erect
additional barriers beyond those prescribed by law. See Vt.
Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,
435 U.S. 519, 557–58 (1978). A BiOp often includes a species-
by-species analysis but that need not always be so. Context is
key and the context here sometimes supports analysis at the
guild level. FWS took a sensible approach to a novel challenge.
It made the requisite findings under the ESA and reasonably
concluded that listed species and critical habitat are not at
jeopardy because FWS would directly monitor Florida’s
permitting scheme to impose protections as needed. That
approach is fully consistent with the statute and is not arbitrary
and capricious. Nor is the EPA’s reliance on FWS’s BiOp
arbitrary and capricious. I believe the district court erred by
holding to the contrary.
B. Remedy
Remedies are often an afterthought in APA litigation.
After all, in plain terms the statute states that a reviewing court

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“shall . . . hold unlawful and set aside agency action, findings,
and conclusions . . . not in accordance with law.” 5 U.S.C.
§ 706(2). There is thus often little for a court to do but vacate
the underlying rule or action once it is invalidated. But three
discrete agency actions are at play here: the ITS, the BiOp and
the EPA’s decision to transfer § 404 permitting authority to
Florida. As noted supra, I join the majority’s invalidation of
the ITS. On the other hand, I believe the BiOp is procedurally
and substantively sound. That leaves the question of § 404
authority and the court’s remand with vacatur.
Even when an agency errs, the APA requires us to take
“due account . . . of the rule of prejudicial error.” 5 U.S.C.
§ 706. As the Attorney General’s seminal 1947 manual on the
APA explains, the prejudicial error rule codified the well-
developed doctrine of “harmless error,” under which a court
may “disregard[]” “errors which have no substantial bearing on
the ultimate rights of the parties.” U.S. Dep’t of Justice,
Attorney General’s Manual on the Administrative Procedure
Act 110 (1947); see also Ctr. for Biological Diversity v. U.S.
Int’l Dev. Fin. Corp., 77 F.4th 679, 690 (D.C. Cir. 2023)
(“Error is harmless when it clearly had no bearing on the
procedure used or the substance of decision reached”) (citation
modified). I believe the BiOp properly concluded that
transferring § 404 authority to Florida is not likely to
jeopardize listed species or destroy or adversely modify critical
habitat. That finding was key. Nothing in the EPA’s bottom-
line decision to transfer § 404 authority hinged on the flawed
ITS. The ITS simply extends incidental take liability to Florida
and individual permittees when a permit will result in
incidental take.
The district court thought it uncertain “whether the EPA
would have approved—or Florida would have asked the EPA
to approve—an assumption application that did not provide

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incidental take protection to Florida permittees through the
programmatic ITS.” Regan, 734 F. Supp. 3d at 64. That
conclusion is belied by the record. As the district court
acknowledged, “a large percentage of the permits at issue will
have no effect on listed species.” Id. at 63–64. Even that
concession is an understatement. The record indicated that
somewhere between 90 to 98.6% of Florida’s CWA permits do
not require incidental take coverage. Id. Both the EPA and
Florida vigorously contest the decision to vacate the EPA’s
transfer. The EPA has defended its actions across two
administrations and would likely reapprove Florida’s
application if presented with the question afresh. And
Appellees can show no prejudice if Florida retains § 404
authority because vacatur of the ITS—but not the EPA’s § 404
transfer—would cure any injury that could be traced to FWS’s
error.
Additionally, our precedent at times permits us to remand
to an agency without vacating its action under the two-part
framework set out in Allied-Signal, Inc. v. Nuclear Regulatory
Commission, 988 F.2d 146 (D.C. Cir. 1993). That framework
looks to “the seriousness of the [action’s] deficiencies” and the
likely “disruptive consequences of vacating.” Id. at 150–51. I
believe the “seriousness of the [transfer decision’s]
deficiencies” is de minimis. Allied-Signal, 988 F.2d at 150.
The BiOp properly reached a no-jeopardy determination and
the ITS had no bearing on the EPA’s transfer decision. While
FWS corrects the ITS, Florida could seek an incidental take
exemption under § 10 or simply decline to issue a CWA permit
in the narrow sliver of actions likely to result in incidental take.
When “nothing in the record suggests that significant harm
would result from allowing the approval to remain in effect
pending the agency’s further explanation,” vacatur can be—
and here, is—too virulent a cure for the alleged infraction. A.L.
Pharma, Inc. v. Shalala, 62 F.3d 1484, 1492 (D.C. Cir. 1995).

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The “disruptive consequences of an interim change that
may itself be changed,” however, are manifold. Allied-Signal,
988 F.2d at 150–51 (citation omitted). Florida has been
administering § 404 permits for over three years and investing
resources in the program for twice as long. Floridians have
reasonably relied on a state administrative apparatus that is
now made inoperative. State administrators hired and trained
to process CWA permits will likely be idled until the EPA re-
dots its § 7 i’s and crosses its § 9 t’s. Numerous local
businesses have already warned of the immense on-the-ground
costs of the district court’s ruling. I see no reason to perpetuate
those costs. We have previously remanded without vacatur in
analogous circumstances. See, e.g., City of Oberlin v. FERC,
937 F.3d 599, 611 (D.C. Cir. 2019) (remanding without vacatur
because a pipeline was “currently operational” and vacatur
“would be quite disruptive”); Oglala Sioux Tribe v. Nuclear
Regul. Comm’n, 896 F.3d 520, 538 (D.C. Cir. 2018)
(remanding without vacatur even given “serious[] . . .
deficiencies” in the agency’s reasoning because a party
“reasonably relied on the [agency]’s ruling” and faced financial
burdens from vacatur but challengers would “not suffer harm”
from keeping the approved action in place); Black Oak Energy,
LLC v. FERC, 725 F.3d 230, 244 (D.C. Cir. 2013) (remanding
without vacatur to avoid “significant transaction costs” from
“the whole cycle . . . repeat[ing] itself”). I believe the same
result should obtain here.
C. ESA In Context
Today’s case involves only the third successful federal-to-
state handoff of § 404 permitting authority in the more than
half-century existence of the program. And now my colleagues
scuttle that years-in-the-making success, notwithstanding the
Congress’s expressed desire for “the states . . . [to] implement
the [CWA’s] permit programs.” 33 U.S.C. § 1251(b).

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Expansive interpretations of the ESA—divorced from its
text—have negated reasonable agency action,15 become the
15 The most infamous example involved an injunction against
construction of a multiyear, multimillion dollar dam backed by both
the Congress and the Executive to protect a species that later
evidence would reveal was simply invented to halt development. See
Tennessee Valley Authority (TVA) v. Hill, 437 U.S. 153, 157, 163–
64, 172–73 (1978); Jason Nark, How a Mistaken Identity Halted a
Dam’s Construction, N.Y. Times, Jan. 4, 2025, at A13. Although
the Congress swiftly repudiated TVA’s notion that the ESA should
be enforced “whatever the cost,” id. at 184; see ESA Amendments
of 1978, Pub. L. No. 95-632, §§ 2, 3, 11, 92 Stat. 3751, 3753, 3764,
3766 (1978), it presaged a judicial approach that has emphasized the
ESA’s broad purpose over its far more sparing text.
For example, one court held that the Services must protect a
species any time it no longer occupies a geographic range that it once
historically did—regardless of any threat of extinction— leading to
the confusing result that almost every North American species could
be considered threatened or endangered. See Defs. of Wildlife v.
Norton, 258 F.3d 1136, 1145 (9th Cir. 2001). Another held that any
activity causing some de minimis impact on listed species constitutes
unlawful take. See Defs. of Wildlife v. EPA, 882 F.2d 1294, 1300–
01 (8th Cir. 1989). A third placed such stringent requirements on
when the Forest Services must reinitiate § 7 consultation that it
effectively stopped hundreds of projects meant to preserve
endangered species. See Cottonwood Env’t L. Ctr. v. Forest Serv.,
789 F.3d 1075, 1084–88 (9th Cir. 2015). Meanwhile, several circuits
concluded that the ESA categorically resolves the balance of the
equities and the public interest in favor of injunctive relief, see
Strahan v. Coxe, 127 F.3d 155, 160 (1st Cir. 1997) (quoting Nat’l
Wildlife Fed’n v. Burlington N. R.R., 23 F.3d 1508, 1510 (9th Cir.
1994)), and that any ESA violation is almost per se irreparable, see
Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985), abrogated as
recognized in Cottonwood Env’t L. Ctr., 789 F.3d at 1090–91.

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bête noire of landowners across America16 and threatened
cooperative federalism.
16 For example, the Services used the now discredited Chevron
framework to expand the meaning of “take” beyond centuries of
common law understanding to reach the actions of private
landowners who adversely modify a species’ habitat—even
inadvertently. See Babbitt v. Sweet Home Chapter of Cmtys. for a
Greater Or., 515 U.S. 687, 692–95 (1995). The cost to landowners
is staggering: once their property is listed as a critical habitat, it is
subject to severe land-use restrictions, a thicket of procedural
requirements, litigation risk and a dramatic diminution in value. See,
e.g., Christy v. Hodel, 857 F.2d 1324, 1327–28 (9th Cir. 1988)
(upholding thousands of dollars in fines against a farmer for
defending his livestock from a bear mauling his grazing flock);
Megan Seymour, Biological Opinion for the Issuance of a Section
10(a)(1)(B) Incidental Take Permit 2–7 (2003)
[https://perma.cc/6EQG-RMFZ] (property owner forced to
relinquish a third of its property and $50,000 in in-kind services as a
condition to build a residence because of the presence of a protected
water snake).
The cost extends far beyond mere dollars and cents: landowners
risk criminal prosecution for ordinary uses of their property. See
Kimberly L. Mayhew, Comment, United States v. Wang-Lin
Company: The Kangaroo Rat and Criminal Prosecution Under the
Endangered Species Act, 6 San Joaquin Agric. L. Rev. 193, 194–96
(1996) (discussing the prosecution of a farmer for inadvertently
modifying the habitat of the Tipton kangaroo rat while preparing his
farmland for planting); United States v. Nguyen, 916 F.2d 1016,
1017–20 (5th Cir. 1990) (upholding the conviction of a fisherman
who inadvertently snagged a protected turtle in a shrimp net without
proof of knowledge that he knew what the creature was or that it was
protected); United States v. McKittrick, 142 F.3d 1170, 1176–77 (9th
Cir. 1998) (similarly concluding that a defendant could be criminally
convicted for killing a protected species notwithstanding he thought
it was a different and unprotected animal).

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Both the CWA and the ESA evince the Congress’s desire
that the states play a leading role. See 33 U.S.C. § 1251(b) (“It
is the policy of Congress that the States . . . implement the
[CWA’s] permit programs”); 16 U.S.C. §§ 1535(a), (c)
(requiring the Services to “cooperate to the maximum extent
practicable with the States” and creating a program for
cooperative state-federal ESA agreements). Yet it is unclear
how any state, particularly one as ecologically diverse as
Florida, can ever clear the regulatory hurdles kept in place by
today’s holding. Recall, only two states have ever assumed
§ 404 authority: Michigan in 1984 and New Jersey in 1994.
See 40 C.F.R. §§ 233.70–71. Michigan’s program underwent
no ESA analysis under the Government’s then-prevailing
understanding of the law. The district court pointed to the
“New Jersey model” as evidence that its interpretation did not
set the CWA and the ESA at irreconcilable variance. Regan,
734 F.Supp.3d at 62–63; see id. at 22–23. But I believe New
Jersey makes my point.
New Jersey spent years in negotiations with the EPA to
take over § 404 permitting. Although the EPA favored
transfer, New Jersey’s application was opposed by FWS and a
collection of environmental groups on ESA grounds. See
Susan Lockwood, Assumption, New Jersey Style, Nat’l
Wetlands Newsletter (Env’t L. Inst. 1994), at 6–7
[https://perma.cc/6JW9-2CP8]. After much ESA wrangling,
New Jersey entered into a Memorandum of Agreement (MOA)
with the EPA and FWS, pursuant to which the state agreed to
identify any CWA permit that might affect a listed species. See
Memorandum of Agreement Among the U.S. Fish and Wildlife
Service, U.S. Environmental Protection Agency, and New
Jersey Department of Environmental Protection and Energy 3–
4 (1993) [https://perma.cc/ELC7-DUR7]. Per the MOA, FWS
then screens the identified permit and decides whether it should
be approved, denied or amended. Id. at 4. The Government

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retains final authority over whether a CWA permit can issue.
Id. at 6. In other words, New Jersey provides the precise model
that Florida adopted and that the majority now rejects.
When confronted with “two statutes [that] cover, in whole
or in part, the same matter,” our obligation is to “give effect to
both.” Frost v. Wenie, 157 U.S. 46, 58 (1895). As numerous
Amici states have warned, the district court’s approach places
“onerous burdens on the states and federal agencies” and
“severely hinders the ability of other States to pursue 404
assumption.” State Br. 9. Their warning is sound: a program
that the Congress crafted for the states’ lead will remain in
federal hands—and over the Government’s opposition. ESA
review has become a procedural morass divorced from the text.
The species-specific requirement is another “atextual legal
rule[]” that “distort[s] the underlying statutory text, impose[s]
unnecessary burdens on litigants, and cause[s] confusion for
courts.” Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 313
(2025) (Thomas, J., concurring).
* * *
Because I believe the ESA contains no species-specific
requirement, FWS’s BiOp properly reached a no-jeopardy
conclusion and the EPA’s § 404 transfer is sound, I respectfully
dissent regarding these issues.

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