Handing federal wetlands permitting to FL DEP is an idea that’s all wet

September 17, 2020 7:00 am

Roseate spoonbills are pictured at the Blackpoint Drive Wildlife Refuge on Merritt Island. Credit Michael Seeley via Wikimedia Commons

Florida is best known for its gorgeous beaches, but we also have a lot of wetlands. Bogs, swamps, marshes, you name it, we’ve got ’em — more than any other state besides Alaska.

Some are famous — everyone’s heard of the Everglades — but most are just anonymous soggy spots that help recharge our underground aquifer, filter pollution, soak up floodwaters, and provide valuable habitat for a whole lot of species.

Not everyone is a fan, of course. When John James Audubon visited Florida in 1832, he was blown away by the flocks of roseate spoonbills and other wading birds he found, but he couldn’t deal with how wet our landscape was.

“The general wildness, the eternal labyrinth of waters and marshes, interlocked and apparently never ending, the whole surrounded by interminable swamps — all these things had a tendency to depress my spirits,” he wrote in a letter to his editor.

If the swamp-hating Audubon were around today, he would no doubt be delighted to hear that the job of protecting our wetlands is on the verge of being handed over entirely to the state Department of Environmental Protection.

Right now, under the Clean Water Act, two federal agencies are in charge of preserving wetlands: the U.S. Army Corps of Engineers, which issues permits for dumping fill in them, and the Environmental Protection Agency, which can veto those permits. But now both are considering handing the job of federal wetlands permitting in Florida over to the state DEP, according to a Federal Register notice published on Sept. 4 seeking public comment over the next 45 days.

Florida’s developers have been pushing for this handover to the state for a couple of decades. In 2005, a lobbyist for Florida developers said that a state takeover of federal wetlands permitting would be “the Holy Grail.”

Why? Because they are convinced the state would grant them super-fast permit approvals, no matter how many acres of wetlands they were going to pave over, and because the state doesn’t protect as many different types of wetlands as the feds do.

In 2006, the Florida DEP, which already issues state wetland permits, looked into taking over the federal permitting program, something only two other states had done. State officials quickly dropped the idea for one very simple reason: Florida builders were requesting so many permits already that taking over the feds’ workload would overwhelm the agency. The state wouldn’t have enough people to issue permits, much less follow up to make sure all the permit conditions were being followed.

Scott the slasher

Former governor and current Republican U.S. Sen. Rick Scott of Florida. Official Senate portrait; U.S. Senate website.

That was under then-Gov. Jeb Bush. In 2011, after Rick Scott became governor, he slashed the size of the DEP by more than 600 employees.

Many of those who were ousted had been in place for decades and were considered experts in their fields. He also cut funding for the state’s water management districts, which issue some wetland permits.

Under Bush, a pro-business governor, the DEP spent an average of 45 days considering permits before granting them. That was too slow for Scott, who urged the agency to crank them out faster. In 2014, he stood in front of a room full of DEP employees to praise them for cutting the amount of time to get permits to an average of just two days. That means they were processing those permits with all the care and consideration of a batting cage pitching machine shooting out fast balls.

Scott’s administration is the one that began pursuing the Holy Grail of a state takeover of federal wetlands permitting. However, Scott’s people insisted they could do it without hiring any new people to accommodate the huge increase in workload.

Republican Gov. Ron DeSantis of Florida. Photo by Joe Raedle/Getty Images

His staff persuaded the Legislature to pass a bill approving the changeover, and now Gov. Ron DeSantis — who pledged to be more environmentally friendly than Scott — is ready to carry Scott’s plan to its fruition.

When I asked DEP press secretary Weesam Khoury if the agency expected the staff to take on this new challenge without hiring any additional workers, she said that the agency “will enhance the protection of Florida’s wetlands by having the same statewide team of environmental experts who are already administering Florida’s robust wetlands protection program also administer the similar federal … program.”

(In other words, no.)

When I asked if that would overwhelm the staff, she said, “The state has more than 400 staff” working on environmental permitting, and “DEP is confident that these knowledgeable staff would be able to work together to handle this slight workload increase.”

Putting the DEP in charge of the federal permits “would provide a streamlined permitting procedure,” she said. Usually, when state officials say some regulatory function is being “streamlined” that means “we’re going to hand out permits like they’re beads being tossed to the crowd from a Gasparilla float.”

To Eric Hughes, this seems particularly worrisome for the future of Florida’s valuable wetlands. Hughes spent 37 years at the EPA, most of them dealing with wetland permits in Florida, retiring at the end of 2016. Far from a “slight workload increase,” he said, the number of federal wetland permit applications per year tends to fall between 1,500 and 2,000 in Florida.

‘Directly controlled by the governor’

Not only would DEP permit reviewers face an overwhelming boost in their workload, he said, but the state agency is more likely to face serious political interference in its permitting decisions than the Corps or EPA do.

“These people [at DEP] are directly controlled by the governor,” Hughes told me.

Lest you think he’s exaggerating, let me point you to the case of the Highlands Ranch Mitigation Bank, a Jacksonville-area project that in 2012 got negative reviews from two water district employees who subsequently found themselves unemployed because they didn’t give the politically connected owners what they wanted.

Then, when the DEP’s top wetlands expert, Connie Bersok, balked at issuing the permit, she wound up being suspended then removed from reviewing that permit. She had refused an order from the deputy secretary of the DEP to bend the rules to cater to the wishes the applicants. A judge later ruled that she was right about everything.

Bersok retired in 2017 after 30 years, so I called her up to ask what she thought about her former co-workers taking over issuing federal wetlands permits. She called it “a terrible plan.”

She also said Khoury’s claim of having 400 DEP employees working on wetlands permitting sounded, shall we say, “inflated.” The only way to get to 400 is to count every single state employee involved in every kind of permitting, including issuing permits for air pollution and other things that have nothing to do with wetlands.

“We’ve always been shorthanded,” she told me.

A lot of DEP’s permitting has been handed off to the state’s five water management districts and even to some of the counties, she said. According to Hughes, if the DEP does that with federal wetlands permits, that would be even worse for the wetlands than if DEP handled them alone.

Florida’s water boards tend to be run by well-connected gubernatorial appointees from the development and agricultural industries. In 2015, the developer who was chairman of the Southwest Florida Water Management District board pushed through approval of a wetlands permit for a friend and former business partner, then insisted he had no conflict of interest.

Last year, the chairman of the St. Johns River Water Management District faced ethics complaints because he tried hiding conflicts of interest involving permits for clients of his environmental consulting business. One of DeSantis’ first actions as governor was to demand the resignations of all nine members of the South Florida water board because they kowtowed to Big Sugar.

More than just the Everglades

I asked Khoury if the DEP plans to dump its new federal permitting duties on the water management districts. Instead of saying “no,” she replied, “Any consideration for the delegation of the program to the water management districts would be considered after the program is implemented.”

To me that sounds like, “Yes, but we don’t want to say anything about that yet.”

The funny thing, Bersok said, is that legally the builders and developers aren’t getting what they really want. Even if state employees are the ones reviewing federal wetland permits, those permits would not be subject to state deadlines, she explained.

In other words, if the DEP handled the permits the way it should under the Clean Water Act, then the federal wetland permits would not be issued any faster — unless, of course, the permits are just going to be rubber-stamped, especially those involving a developer with major political connections.

Of course, given who’s in charge of the federal government right now, that sort of arrangement would not be a considered a deterrent to the feds handing over permitting to the state.

The bottom line, then, is this: A lot of politicians say they’re in favor of saving the Everglades. In Florida, it’s become the equivalent of supporting motherhood and apple pie.

It’s nice to see that one wetland get so much love. But the other wetlands deserve some love too, especially for those of us who like our water clean, our property flood-free, and our spoonbills abundant — no matter what old Mr. Audubon might say.

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Craig Pittman
Craig Pittman

Craig Pittman is a native Floridian. In 30 years at the Tampa Bay Times, he won numerous state and national awards for his environmental reporting. He is the author of six books. In 2020 the Florida Heritage Book Festival named him a Florida Literary Legend. Craig is co-host of the "Welcome to Florida" podcast. He lives in St. Petersburg with his wife and children.