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They won't say no

Published May 22, 2005|Updated Aug. 25, 2005

Despite a presidential policy of "no net loss," Florida has lost at least 84,000 acres of wetlands in the past 15 years. How hard is it to get permission to destroy these "protected" areas? Just ask. They won't say no

For 15 years, whenever a president needed an applause line for his environmental policies, he pledged to protect wetlands.

George Bush, Bill Clinton and George W. Bush all promised that the government would not allow developers to wipe out wetlands without replacing them, a policy called "no net loss."

"It's time to stand the history of wetlands destruction on its head," the first President Bush declared in a 1989 speech on the policy.

Yet since the policy took effect in 1990, at least 84,000 acres of Florida wetlands have disappeared, the St. Petersburg Times has found.

While the government says destroyed wetlands were replaced, the claims are based on creative accounting and questionable science. The result: a program that creates the illusion of environmental protection while doing little to stem the destruction.

"It's a huge scam," said Steve Brooker, who has spent 15 years reviewing wetlands destruction permits for the U.S. Army Corps of Engineers in Florida.

The no net loss policy is not being enforced in Florida because of the corps, the government agency primarily responsible for protecting wetlands.

"We're not protecting the environment," said Vic Anderson, who recently retired after 30 years with the corps. "It's a make-believe program."

The Times' investigation found:

+ The corps approves more permits to destroy wetlands in Florida than any other state, and allows a higher percentage of destruction in Florida than nationally. Between 1999 and 2003, it approved more than 12,000 wetland permits and rejected one.

+ The federal Clean Water Act and the no net loss policy say wetlands should be protected. But the corps trains its Florida staff to presume that every proposal to destroy wetlands is "in the public interest" and tells them to help developers get permits.

+ To make up for the destruction, the corps requires developers to create man-made wetlands that are usually expensive failures. Developers also can preserve wetlands under a formula that counts existing acres as if they were new. But the corps doesn't track whether most developers follow through on their permit requirements.

+ Building in wetlands costs the taxpayers. The government sometimes buys and tears down flooded houses, pays to clean up pollution and tries to replace lost sources of drinking water. In Collier County, $30-million in tax money is buying neighborhoods that flooded because of wetlands development.

Corps officials say they are doing nothing wrong.

"Our role is not to be an impediment to the development process," said Lt. Gen. Carl Strock, who oversees corps operations worldwide. "We're not the ones making decisions about where growth occurs."

The Pentagon civilian who oversees the corps is convinced all the destroyed wetlands have been replaced, but admits that's guesswork.

"The flaw is we cannot demonstrate or document we have achieved it," said Deputy Assistant Secretary of the Army John Paul Woodley Jr.

The staff is just too busy, Woodley said.

"Right now," Woodley said, "our guys are working so hard on permits that it's very challenging for them to find time to go back, reach back in the file and grab something from the last two years of files and . . . see whether that is working."

Yet developers say the corps takes too long to approve permits. "We hear homebuilders say, "I have $2-million wrapped up in this piece of property and I'm waiting a year on the corps,"' said Chandler Morse of the National Association of Home Builders.

A group of homebuilders met with Woodley last year to complain about how slowly the corps moves in Florida.

This month, to speed things up, developers persuaded the Legislature to give the state sole authority over wetlands of less than 10 acres. The bill requires federal consent, which corps and state officials say is unlikely.

A Florida tradition

From the tupelo swamps of the Panhandle to the tidal flats of the Keys, Florida boasts more wetlands than any state but Alaska, with 10.5-million acres, down from 11.2-million in the mid 1970s. It also has a greater diversity: mangrove forests where shrimp and fish spawn, freshwater marshes that feed migrating ducks, cypress domes offering refuge for wading birds.

Selling swampland to unsuspecting buyers is a Florida tradition. The state has so many wetlands that developers say they're constantly in the way.

"You can't do anything in Florida and not impact under an acre," said Morse.

It's not always easy to figure out what constitutes a wetland, and state and federal regulators don't always agree which ones deserve protection. As a general rule, the corps is supposed to protect any wetland that flows to a navigable waterway. Developers need a permit to dig up those wetlands for retention ponds or fill them in and build on top of them.

First the state must certify a project won't cause water pollution. Then the corps must determine that it is "in the public interest" with "no significant environmental impact."

Local and state agencies need corps permits if their roads, schools or other public facilities destroy wetlands. Tampa Bay Water needed permits for its new Hillsborough County reservoir because it destroyed 185 acres of wetlands.

When Congress passed the federal Clean Water Act 30 years ago, it intended that getting permits for destroying wetlands should be difficult.

"The bottom line was to try to stem what the scientific evidence of the day showed was a problem: the dramatic reduction in wetlands habitat around the nation," said Jim Range, who helped write the law as chief counsel for then-Sen. Howard Baker, R-Tenn.

But in Florida the law hasn't stopped the corps from approving nearly every permit.

"If they really applied that in Florida, they couldn't develop the hell out of everything," said Lesley Blackner, a Palm Beach lawyer who has repeatedly sued the corps.

The corps hasn't compiled last year's data, but in 2003 the corps approved more than 3,400 wetlands permits in Florida, more than any other state. It denied none.

John Hall, who ran the corps' Florida permit program for 15 years before retiring in January, says counting permits is a poor way to measure the agency's work. Instead, he said, consider how his agency modifies proposals to save wetlands.

The corps says it saved 20 percent of the nation's wetlands targeted for destruction. But in Florida in 2003, the corps saved less than 6 percent.

Of the 3,282 acres proposed for destruction, the corps said yes to all but 185.

Thousands of acres lost

The corps didn't even start keeping complete records of how many acres of wetlands it has permitted for destruction in Florida until two years ago.

So to gauge Florida's wetland losses, the Times analyzed satellite images of the state.

Between 1990 and 2003, about 84,000 acres of wetlands disappeared, the analysis shows. That's an area about the size of St. Petersburg converted into subdivisions, stores, parking lots and roads.

The greatest losses were in areas where the population grew by more than 3-million: South Florida, Southwest Florida, Orlando and Jacksonville.

The analysis did not include wetlands destroyed by mining and farming, so the actual losses likely exceed 100,000 acres.

Hall said he was not surprised, but contended only the least valuable wetlands were lost.

"Through the years, maybe the more marginal, marginally valuable wetlands have been the first to attract attention of developers," he said. "These kinds of pieces of property I think are getting harder to find in Florida."

That doesn't necessarily mean the corps will now deny more permits, Hall added.

Many wetlands destroyed over the past 15 years were small. Others were massive.

Three years ago, the corps approved requests by limestone mining companies to destroy 5,400 acres of wetlands at the edge of the Everglades. What's left are lifeless lakes 90 feet deep that are "probably not nearly as valuable as the wetland that was there before they dug the hole," Hall said.

Corps officials in other states are stunned when they hear about permits like that one, said Charles "Chuck" Schnepel, a 30-year corps employee who runs the Tampa office. When they ask how corps officials in Florida can say yes to wiping out so many acres, he said, the answer is simple.

"The regulatory program doesn't say we're out here to deny permits," Schnepel said. "It says we're out here to process them."

No time for inspections

The corps' Florida permitting headquarters is on the third floor of a Jacksonville office building with a view of the St. Johns River, where the chairs, blinds and computers all come in shades of gray.

Its annual budget for wetlands regulation in Florida is $11-million, which Col. Robert Carpenter, who oversees the corps in Florida, contends is about $5-million less than what his staff needs to keep up with its crushing load of permit applications.

The corps' 100 regulatory employees are so overwhelmed _ some juggle more than 200 permits, Hall said _ they seldom inspect wetlands.

They trust the applicants.

"We rely on verbal descriptions, aerials and photographs," Schnepel said. "We don't have time to go out and do three-hour inspections."

They also don't check back on most permits after they're issued, even though that's a crucial step in assuring the no net loss policy is working.

In 1999, Wal-Mart proposed a supercenter on 28 acres near the Cypress Lakes development in Oldsmar. Smack in the middle was a five-acre wetland that Wal-Mart said had to go.

The corps ordered something called "mitigation," the linchpin of the no net loss policy. It generally requires offsetting losses by creating new wetlands. But man-made wetlands frequently fail, a fact corps officials are well aware of.

"Mitigation is a fraud," said Anderson, the retired corps permit reviewer.

Some kinds of mitigation can work, experts say, but it's tricky. You can't just dig a hole and fill it with water, said Ann Redmond, the state's top mitigation expert through the 1990s who served on a National Academy of Sciences panel that studied the corps' wetlands program. You have to ensure it's connected to groundwater and has the right vegetation and soil.

Getting it right can take several tries, she said. And even then it might take 20 years to mimic the wetland it replaced.

But the corps' permits don't take all that into account, Redmond said.

In Oldsmar, Wal-Mart created three wetlands around the parking lot, including one that required the demolition of several apartment buildings.

The company transplanted the vegetation from the natural wetland it was destroying, even 70-foot-tall cypress trees. Wal-Mart's environmental consultant, Kimley-Horn and Associates, talked of building a "mini-ecosystem" with a "dense canopy."

Wal-Mart also promised to preserve 26 acres of wetlands north of the store by donating them to the public.

The corps approved the permit in 2000. Five years later, many of the transplanted trees are dead. Rainstorms send polluted water from the parking lot flowing into the largest man-made wetland, which doubles as a retention pond.

Even if the water were clean the trees would be in trouble. Cypress can tolerate a few inches of water, but the man-made wetlands hold three feet or more.

And the preserved wetland? Without the corps' knowledge, Wal-Mart tried to sell it for development. Only after a civic group protested did the the corps force Wal-Mart to donate the land to Pinellas County.

The Wal-Mart case is no aberration.

"Virtually every study finds significant problems with the execution of wetland mitigation projects," said Redmond. "They're trying to create a wetland where Mother Nature never intended one to be."

James Connaughton, President George W. Bush's top environmental adviser, acknowledges that "sometimes some of these projects don't work out the way we think they should."

He acknowledged that Florida has lost thousands of acres of wetlands but said spending billions on restoring the Everglades "will be a key component" in offsetting those statewide losses.

Mitigation, he said, balances environmental protection with needed development.

"People need homes to live in, hospitals to go to when they're sick and stores to buy food," Connaughton said. "As long as we support a growing population in America, there will be a need for land. We need to minimize the impact to valuable wetlands, but where we do have impact, mitigation is the answer."

Anderson, though, says mitigation is merely a way to make it appear the corps is achieving no net loss when it's not.

"It's all just a big shell game," Anderson said. "Who's kidding whom? The only conclusion you can draw is we're losing it on purpose."

Little public scrutiny

The corps does its work largely outside public view. It conducts no public debate and requires no vote in an open meeting.

It does mail notices about some permits to adjoining property owners and posts the information on its Web site. On any given day, its Web site features dozens of permit requests.

Last July 1 it had 56 notices. Many were for an acre or less, but when added together they totaled more than 800 acres. Nearly a year later, more than half have been approved.

When the public doesn't object, approving permits can be relatively easy, say corps employees. But to deny a permit can take months, requiring a lot of paperwork, a legal opinion and a decision by the colonel in charge.

Denials are more difficult because the corps knows a developer might sue, said Hall. The corps would probably deny more permits if its staff had the time, he said.

Because they are so rushed, Brooker said, many projects are approved that shouldn't be.

"It's best to take the best compromise you can get and move on to the next one," Brooker said. "If you put in the effort it takes to deny every one you needed to, we'd be buried."

Besides, the corps' training manual for Florida says that, despite what the Clean Water Act requires, projects that wipe out wetlands are presumed to be in the public interest. Hall compared it to the presumption of innocence in court.

"A permit will be granted unless the (colonel) determines that it would be contrary to the public interest," the training manual says. "Thus to deny a permit . . . the burden of proof is on the corps to show a proposal is contrary to the public interest."

But experts on wetlands law say the manual has it backward. The corps' own regulations say that "most wetlands constitute a productive and valuable public resource, the unnecessary alteration or destruction of which should be discouraged as contrary to the public interest."

Yet the corps regards developers as its customers, and sends "customer satisfaction" surveys with permits. So when a developer struggles to win corps approval, the agency helps rewrite the application.

"We work with them until we get an acceptable solution," said Strock, the corps' chief engineer.

Federal regulations say development that doesn't need to be near water should not destroy wetlands. To get a permit, a developer is supposed to show there's no alternative site that will work.

That's where the corps' help comes in, Hall said:

"Most people would say a residential golf community doesn't have to be located in wetlands. So we work with the applicant on the purpose: "A middle-income residential development built around a . . . 9-hole or 18-hole championship golf course.' Also they're targeting it for a particular demographic, right? I want to define the project purpose (to include that) and say "in the greater metropolitan Jacksonville area.' "

Making the project purpose so specific leaves no alternative but destroying wetlands.

That displays a basic misunderstanding of the Clean Water Act, said Joy Zedler, a University of Wisconsin professor who chaired the National Academy of Sciences panel that studied the corps.

"Their job is to regulate," Zedler said, "not to simply rubber-stamp."

A flawed formula

Corps officials say some wetlands can be wiped out with no consequences.

"When we mitigate, we calculate the quality of the wetlands as a part of the permit," Col. Carpenter said.

The corps relies on a complex formula that can convert minuses to pluses and counts preservation as if it were creating something new.

When the state Department of Transportation built the 42-mile Suncoast Parkway, the corps allowed it to wipe out more than 200 acres of wetlands in Hillsborough, Pasco and Hernando counties. Instead of creating new wetlands, it then spent $26-million to buy 10,000 acres of undeveloped land and preserve it.

That saved 3,352 acres of existing wetlands, which the corps counted as if it were a gain. The corps also didn't account for future losses, declaring the road "will not be a major cause for development."

But as soon as the parkway opened in 2001, developers lined up for wetlands permits of their own. Yet the corps official who approved the Suncoast, Mike Nowicki, says, "There really isn't any development spurred by the road."

Now, to accommodate growth, Pasco wants to extend Ridge Road through the preserved land, wiping out another 48 acres of wetlands.

Sometimes the corps simply ignores its formula.

Last year the developers of Connerton in Pasco sought to build on 17 acres of wetlands. Even though the developers proposed creating 19 acres of new wetlands and preserving 288 acres, the formula said it would not sufficiently offset the losses.

So the corps ignored the formula and issued the permit anyway, relying instead on the reviewer's "best professional judgment."

That's because the calculations aren't really reliable, said Hall. Permitting decisions are based more on intuition than calculation.

"You're trying to come up with some kind of number that you hope translates your gut into a measurable value system," he said.

Tax dollars at work

In the 1990s, the population of Lee and Collier counties boomed. The corps issued permits to erase nearly 4,000 acres of wetlands in the western Everglades. It ordered the creation of less than 500 acres, resulting in huge losses.

The new roads and upscale subdivisions around Bonita Springs choked off wetland sloughs that carried away excess water. In 1995, floods forced more than 1,000 people to evacuate.

So now the state and federal governments are spending $30-million to move people out and tear down their homes.

"Wetlands get dried up with money," said Danny Curran, a Bonita Springs shrimper whose house was targeted for demolition.

The Federal Emergency Management Agency has repeatedly objected to permits likely to cause flooding. "The corps appears to make no effort to determine whether proposed projects are located in the floodplain," FEMA told the corps in 2001.

"They'd like to see the corps deny all permits in the . . . floodplain," said John Studt, who at the time was chief of the corps' regulatory division nationwide. "We told them we couldn't do that."

Flooding is the concern of water management districts, not the corps, he said. FEMA officials say they are powerless to stop the corps.

The U.S. Fish and Wildlife Service also tried to get the corps to change. Four years ago the agency accused the corps of doing a poor job protecting the western Everglades. It cited 24 permits in Lee and Collier counties that it said the corps should not have issued.

Hall told wildlife officials they were wrong, and the agency dropped the matter.

"At that point it just became something I didn't think we would be able to move forward," said Jay Slack, the top wildlife official in South Florida.

The one federal agency that could stop the corps doesn't. The Clean Water Act gives the Environmental Protection Agency veto power that it hasn't used in Florida since 1988.

Carol Browner, a Florida native who led the EPA under Clinton, said she often "struggled with the corps" and says it should deny more permits. But her agency, she said, always worked out its problems without vetoing a permit.

The EPA's regional administrator under the Bush administration, Jimmy Palmer, says he hasn't vetoed any Florida permits because state officials approved the projects.

"It's not appropriate for the federal government to run roughshod over decisions by the states," he said.

Hall and other corps officials say the loss of wetlands is not their fault. They blame the EPA and other federal agencies for failing to give them reasons to say no. They blame the state for not blocking development that harms water quality. They blame local officials for approving zoning changes for new development.

"Nobody," said Hall, "has the guts to draw the line."

Postscript

After the Times asked corps officials about the loss of Florida's wetlands, the corps denied four permits over the past two weeks.

"When they require outright denial, they get denied," Carpenter explained.

Asked if the Times' inquiries had anything to do with it, he said, "Absolutely, categorically no."

Times researcher Caryn Baird contributed to this report. Craig Pittman can be reached at craigsptimes.com or (727) 893-8530. Matt Waite can be reached at waitesptimes.com or (727) 893-8568.

COMING MONDAY

How politics influences wetland permits.

The Bonita Springs home of Danny and Brenda Curran never flooded, but the government forced them to sell it and they moved out in September 2004. State and federal agencies are spending $30-million to buy homes and tear them down to restore wetlands for flood control.

WHY WETLANDS MATTER

Florida has more wetlands than any other state besides Alaska, and a greater variety than anywhere else in America. There are mangrove forests where shrimp and fish spawn, freshwater marshes that feed migrating ducks and cypress domes where herons and egrets find refuge. For 200 years, Florida tried to get rid of its wetlands, but now everyone recognizes their value. Here is how they work, and what can happen when they are destroyed.

HOW A WETLAND WORKS

1. Rain water and agricultural runoff are absorbed into the ground.

2. Vegetation and natural minerals in the ground filter out many of the nitrates, phosphorus and other contaminants.

3. When the water reaches the wetland, it floods the basin for an amount of time called the "hydroperiod." The wetland holds the flood water and releases it slowly.

LOSS OF LIFE CYCLES

A wetland contains hundreds of different life cycles. The slightest disruption in any one of the delicate links can create a domino effect that can disrupt other life cycles.

WHEN A WETLAND IS FILLED IN

1. Surrounding uplands continue the natural cycle of draining water into the water basin. Urban development in this area will also increase water runoff at the ground's surface.

2. The basin, now filled in with dirt, becomes saturated with the incoming water runoff.

3. Because it is unable to contain the water, the basin can flood more quickly and may flood yards and houses in areas that were once protected.

Bacteria and fungi decompose dead foliage, animal waste and carcases both in the ground and in the water.

Insects, both as adults and larval stages, feed off the bacteria and fungi.

Fish or amphibians, such as frogs and salamanders, eat the insects. Fish, such as largemouth bass and crappies, also rely on these insects for food.

Snakes and alligators eat the frogs and salamanders.

Birds, such as egrets and herons, eat the snakes and fish.

Wetland creatures die, adding to the mass of leaves and other plant material that is decomposed by the bacteria and fungi at the base of the food web.

Sources: Southwest Florida Water Management District and University of Florida

HOW WAL-MART BUILT IN OLDSMAR

1995: A 5-ACRE WETLAND

2004: A WAL-MART SUPERCENTER

In 1999, Wal-Mart proposed a supercenter on 28 acres that included a 5-acre wetland Wal-Mart said had to go. The Army Corps of Engineers required Wal-Mart to create wetlands on the site and buy 26 acres of wetlands to give to the public. Five years later, the cypress trees moved from the natural wetland to the man-made wetlands are dying.

Source: U.S. Army Corps of Engineers, Florida Department of Environmental Protection; ESRI, GDT

PENDING PERMITS

1. 2,000 acres of wetlands for a new Panama City airport

2. 500 acres of wetlands for a new town on the Duval-St. Johns county border

3. 56 acres of wetlands for Cypress Creek Town Center shopping mall

4. About 600 acres of wetlands for a golf course community

HOW YOU GET A WETLANDS PERMIT

1. GET AN ENVIRONMENTAL RESOURCE PERMIT from the state Department of Environmental Protection or a water management district that says the project should not cause water pollution. A rejection is rare.

2. APPLY FOR A FEDERAL PERMIT from the U.S. Army Corps of Engineers to fill or dredge a wetland.

3. IF THE PROJECT affects less than half an acre of wetlands, you are eligible for a nationwide permit that can be approved quickly with little study.

4. IF THE PROJECT DESTROYS more than half an acre, you must get an individual permit. A corps official helps you word your application, then posts a notice on the corps Web site and notifies adjacent property owners.

5. THE PUBLIC SELDOM COMMENTS ON PERMITS, but other federal agencies do. The Environmental Protection Agency, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service can recommend whether it should be issued, or what conditions should be set.

6. IF THE PROJECT might affect endangered species, the Fish and Wildlife Service must comment, which can delay the permit, but seldom derails it.

7. THE CORPS ISSUES THE PERMIT, along with a Finding of No Significant Environmental Impact. The EPA can veto the permit, but has not done so since 1989.

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