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Environmental groups to sue over feds handing endangered species duties to state

Florida scrub-jay (threatened)
Published Mar. 29, 2013

With no public hearings or fanfare, the U.S. Fish and Wildlife Service last year handed over to a state agency its authority for clearing the way for development permits that might hurt Florida panthers and other endangered species.

The move to hand that authority to the Florida Fish and Wildlife Conservation Commission had strong support from developers and others who seek such permits, according to a former Fish and Wildlife Service official. The lack of fanfare was at the request of state officials who wanted to "lay low" and avoid controversy, according to internal emails.

Florida is now the only state with that authority. "This is the only one that's ever been done," said Dave Hankla, who recently retired as the head of the Jacksonville office of the federal wildlife agency.

But on Thursday a pair of environmental groups notified the federal government that they intend to sue, arguing that handing off that authority violates the Endangered Species Act.

They contend that Congress never meant for a state like Florida to have the authority to hand out what are known as "incidental take" permits, said Jacki Lopez of the St. Petersburg office of the Center for Biological Diversity, which has teamed up with the Conservancy of Southwest Florida to fight the move.

The groups worry the federal agency could try doing the same thing in other states unless someone objects in Florida. They also fear the state wildlife commission will be too generous with the permits to "take" endangered wildlife.

The reason: Of the seven gubernatorial appointees in charge, four are connected to the development industry. Two are developers, one is a paving contractor, and one is a land-use attorney who works for developers. The remaining three members are a libertarian think-tank employee, a Panhandle lobbyist and an Immokalee cattle rancher who has repeatedly lost calves to panthers.

"The commission itself is made up of commissioners with a direct interest in the outcome of endangered species rulemaking," said Andrew McElwaine of the Conservancy.

The Fish and Wildlife Service has 60 days to negotiate a settlement. If no settlement is reached, the environmental groups can sue. Officials with both the U.S. Fish and Wildlife Service and the Florida Fish and Wildlife Conservation Commission declined to comment. But Nick Wiley, executive director of the state wildlife agency, acknowledged that the state assuming this permitting responsibility is unusual.

"We're careful about entering into the regulatory arena because it comes with a lot of sensitivities," he said.

The wildlife commission has been hesitant to limit development, the environmental groups contended. Between 2005 and 2007, the state agency was invited to comment on proposed developments more than 1,000 times and responded only 238 times. Most of the time, the responses were no more than a short paragraph, they noted.

They also noted that from 1991 to 2007, the state agency let developers who wanted to build in gopher tortoise habitat simply write a check and then bulldoze the tortoises' burrows. An estimated 94,000 tortoises were suffocated with the agency's blessing. The state has since declared the tortoise to be a "threatened" species and halted the pay-to-pave program.

At issue is who should issue what are known as "incidental take" permits for development in areas where gopher tortoises, panthers, scrub jays and other imperiled Florida species live. Federal officials have 67 Florida wildlife species listed as either endangered or threatened, and a total of 133 are on the state's list of imperiled creatures.

Before last year, it was up to the federal agency to determine whether a project could be built even if it resulted in an "incidental take" —- in other words, the injury or death — of an endangered species. The standard was whether the size of the incidental take would be so damaging that it would send the overall population into a tailspin.

Developers complained that getting permission from the federal agency could take years. They greatly preferred working with the state, said Hankla, who led the yearlong negotiations because he saw a major benefit to handing over the federal authority.

"It was an opportunity for streamlining," Hankla said. He pointed out that the state's process would require not just a limit on incidental take but also what the rules call a "net conservation benefit" from any permitted project. What that would be remains undefined, however.

Why didn't either agency hold any public hearings on the change? "Nobody asked for one," Hankla said. "There were very few objections."

In fact, in emails exchanged in 2011 between state and federal officials while setting up the new system, state wildlife officials were quoted as saying they "just want to sign (the agreement) and lay low." They appeared to be concerned with how the incoming administration of Gov. Rick Scott would react, given Scott's opposition to regulations that limit business.

McElwaine said the wildlife agency's decision to hand over permitting authority to Florida mirrors a recent move by the U.S. Environmental Protection Agency to let Florida's Department of Environmental Protection regulate nutrient pollution in the state's waterways. The Obama administration has now twice deferred to the Scott administration on environmental regulation, he pointed out.

In this instance, though, the state has yet to exercise its authority, Hankla said. He blamed state budget cuts for that: "Nobody has any room to take on additional work."

Wiley said it's just the complexity involved, explaining: "There are a lot of details to work out."

Craig Pittman can be reached at craig@tampabay.com.

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