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Gov. Rick Scott's DEP wants to take over issuing federal wetland permits

Under Gov. Rick Scott, Florida's Department of Environmental Protection is negotiating with the Trump administration for the state to take over issuing federal wetlands permits, all in the name of making it easier to build in wetlands. At issue are developments like this one in Pasco County's Lexington Oaks, where a cypress dome was surrounded by homes. [LARA CERRI | Times (2005)]
Published Jan. 29, 2018

Clarification: An earlier version of this story said Audubon of Florida supported the bills for this takeover. Although Audubon's acting executive director called the Senate bill "appropriate," the organization has taken no official position for or against it.

For decades, Florida's builders and developers have complained about how long it takes to get a federal permit to fill wetlands.

They greatly prefer dealing with the state because it doesn't protect as many types of wetland, says yes to nearly every permit application and approves them rapidly.

Now Gov. Rick Scott's environmental regulators are negotiating with the Trump Administration for the state to take over issuing federal wetlands permits too — all in the name of making it easier to build in wetlands.

A pair of bills to make it happen — SB 1402 and HB 7043 — are rolling through the Legislature, sped along by strong support from business groups and Scott's state Department of Environmental Protection.

"If this goes through, the likelihood would be that several other states would then use this as a template," said Eric Hughes, a recently retired U.S. Environmental Protection Agency wetlands expert who spent 37 years reviewing Florida permits.

PREVIOUS COVERAGE: Read our 2005 Special Report on Florida's disappearing wetlands

Florida environmental groups are split on the issue. The Nature Conservancy supports the bills. Audubon Florida, despite its acting executive director calling the Senate bill "appropriate," has taken no position. Meanwhile the Sierra Club, Florida Wildlife Federation and Earthjustice are opposed.

"The state's program is much weaker than the federal program" for protecting wetlands, said Manley Fuller, president of the Florida Wildlife Federation.

Florida has more wetlands than any other state. While builders often see them as an impediment to their plans, wetlands are considered valuable because they absorb flood water, filter out pollution and provide habitat for important species of wildlife.

That's why wetlands are supposed to be protected by the Clean Water Act, passed by Congress in 1972. Under that law, the Corps of Engineers is in charge of issuing permits that are supposed to limit the damage to wetlands, with the EPA given veto power should any bad permits get by.

Thus developers have to get permits for wetlands destruction from both their state environmental agency and the Corps. In the 45 years since the Clean Water Act passed, only two states have taken over issuing the federal permits too: New Jersey and Michigan. All the rest have said no thanks.

In 2005, a lobbyist for Florida developers said a state takeover of federal wetlands permitting would be "the Holy Grail." The following year, the state DEP looked into such a takeover, but ended up dropping the idea. Florida had three reasons for ditching the proposal then, according to a report by the Association of State Wetland Managers:

• Florida builders were requesting so many permits already that taking over that workload would overwhelm the state agency.

• The DEP decided it would need help from the Corps to make sure the permits' requirements were being followed to the letter. The state didn't have enough people working enforcement.

• Finally, the DEP decided it would need federal money to pay for all the extra work and employees it would take.

Since Scott took office in 2011, the size of the DEP has shrunk by more than 600 employees, dropping from about 3,500 to 2,900. He slashed funding for the state's water management districts, which also issue some wetland permits, and vetoed funding for the regional planning councils that helped guide growth.

In a 2014 speech, Scott praised the DEP for cutting the amount of time it takes to get any permit to a mere two days — down from 44 days when Jeb Bush was governor.

Yet, during a Senate committee hearing last week on one of the bills, the sponsor, Sen. David Simmons, R-Longwood, said the DEP "has assured us it has the personnel and the local expertise to be able to efficiently review and make permit decisions."

To Simmons, who public records show has received thousands of dollars in campaign contributions from builders and developers and their political action committees, the advantage of putting the state in charge of all wetlands permitting is that it increases efficiency.

"Working with one agency will eliminate duplication," Simmons said. "The DEP can make a permit decision more quickly." That, he said, "will provide a benefit to the permit applicants."

But Scott's cutbacks at the DEP have taken a toll on the agency's ability to issue its own permits, said Connie Bersok, who retired as the DEP's top wetlands expert last year after 30 years.

"The permitting staff is bare-bones right now," she said. "To think they could take on any new responsibilities is ridiculous."

Complicating matters even further, she said, is the fact that the DEP has a mandatory deadline for making a decision on a wetlands permit. A missed deadline means the permit is automatically approved. The Corps' permit reviewers have no such deadline.

"It used to be 90 days and then they changed it to 60 days, and internally there's been a push to make it even less — 30 days," Bersok said. "I don't think it's realistic to expect a proper permit review to be done in a 60-day time frame with the same staff that's there now."

Although no one in the hearing had accused Simmons of trying to give builders a leg up by letting them kill more wetlands, the senator contended that no one should make that argument.

"I have the strongest record of environmental protection," he said.

DEP spokeswoman Lauren Engel said the legislation, if passed, would only open the door for a possible state takeover, not finish the whole process, as the state sought to take over issuing both permits.

"Before any changes are made, the public and all stakeholders will have ample time to comment and provide input in a transparent rulemaking process," Engel said. "This will ensure environmental protections remain just as stringent, if not more stringent, than the federal government's."

She also said that because the DEP's regulations cover isolated wetlands, while the federal government's rules do not, the state would protect more wetlands than the Corps does. However, state regulations do not cover a common type of wetland called pine flatwoods, which are considered essential habitat for endangered panthers and other wildlife. The Corps does protect those.

"We're talking about potentially a very large difference" in acres protected, said Hughes, the retired EPA wetlands expert.

Although neither bill has passed yet, the DEP has already drafted legal documents for the transfer and sent them to both the EPA and the Corps to read over. A Corps spokeswoman said the agency is "considering the request." So is the EPA.

"As part of our commitment to cooperative federalism, EPA is ready to assist Florida with their effort to assume the program," an agency spokeswoman said.

Times senior news researcher Caryn Baird contributed to this report. Contact Craig Pittman at craig@tampabay.com. Follow @craigtimes.

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