EPA boss plays Santa for Florida developers

December 24, 2020 7:00 am

Florida’s Green Swamp, a treasure of cypress domes and forested wetlands. Credit: Southwest Florida Water Management District

I love Christmas — the lights, the tree, the wrapping paper, you name it.

I love everything about it, from the herald angels’ singing for the shepherds to Mariah Carey belting out her big hit, from joyful Jimmy Stewart running through Bedford Falls at the end of “It’s a Wonderful Life” to little Ralphie pining for a Red Ryder BB gun in “A Christmas Story.”

This is a season of giving, and thus a time to think of others and their needs. As you might guess, then, I was intrigued last week to witness one of the biggest instances of gift-giving in Florida history. I mean, this was bigger than the guy in those Lexus commercials who buys his wife a new sedan for Christmas and parks it in the driveway under a big red bow.

Andrew Wheeler, head of the U.S. Environmental Protection Agency. Credit: Wikipedia.

Andrew Wheeler, the soon-to-depart administrator of the U.S. Environmental Protection Agency, gave Florida’s developers a ginormous Christmas gift, one they’ve been wishing and hoping to get for more than 15 years. I remember back in 2005, when a developers’ lobbyist told me it was their Holy Grail.

Here was the gift: Wheeler handed over the authority to issue federal permits for destroying Florida wetlands to the state Department of Environmental Protection.

Oh sure, the environmental groups are squawking about it, and one has even filed a legal objection. You know how they are about threats to clean drinking water and habitat for endangered species.

But listen, Wheeler had a good explanation for why this needed to be done.

“This action allows Florida to effectively evaluate and issue permits under the Clean Water Act to support the health of Florida’s waters, residents, and economy,” Wheeler announced, effectively fixing a gargantuan red bow on top of the big giveaway.

“By taking over this permit program, Florida will be able to integrate its dredging and fill permitting with their traditional water quality and monitoring programs.” He also said Florida has “beyond question one of the greatest environmental records of any state.”

Everyone knows how wonderful the DEP’s “traditional water quality” programs are. Those are the ones where, thanks to the laws passed by the Legislature and the guidance of our recent set of governors, seldom is heard a discouraging word toward development, there’s little to no penalty for violations, and the pollution “standards” tend to be voluntary if they exist at all.

We should all be grateful for those DEP programs! If not for them, we might not get those long-lasting, delightfully Christmas-y red and green algae blooms to brighten up our waterways every year.

And the DEP is so speedy, too! Under former Gov. (now Sen.) Rick Scott, the average time to approve a permit dropped to a mere two days. If it got any faster, the agency would be issuing permits before they were even applied for, sort of like that Tom Cruise “Minority Report” movie, but for pollution instead of murdering people.

The federal agency that until this week was in charge of federal wetland permits in Florida, the U.S. Army Corps of Engineers, usually takes a lot longer with permit applications, in part because its rules are different and it has no legal deadlines to meet. The Corps seldom says no, but it can take such a long time to get to it that the delay discourages developers from messing with wetlands.

Is it any wonder developers would rather deal with the state than the slow-poke feds? I mean, when you’ve got the bulldozers all cranked up to wipe out a swamp or a marsh so you can build another storage facility or convenience store, time is money!

The state takeover “is a positive step forward for builders in Florida,” said Florida Home Builders Association CEO Rusty Payton.

During Wheeler’s big announcement last week, the word of the day was “streamlining.” That’s government-speak for: “We’re going to try cranking out those wetland destruction permits so fast it will be like watching the cars go around the track at Daytona!”

Wheeler could have given out coal

It would have been easy for Wheeler to leave coal in the developers’ stockings — and not just because he used to be a coal industry lobbyist. When Gov. Ron DeSantis asked the EPA this summer to hand over the responsibility for issuing federal wetlands permits, Wheeler could have said no, for lots of reasons.

Wheeler could have said, “The public comments on this are absolutely brutal, nobody trusts the state to do the job right, and maybe you need to fix that widespread perception before you go making major changes like this.”

Or he could have said, “Only two other states have tried this, the last one in 1994, and not one of the other 48 has asked to take over federal wetlands permitting until you came along. We think it would be a huge mistake to add the state with the second-most wetlands in the nation as No. 3.”

Or he might have replied, “Only some nefarious nitwit would saddle your overworked and underfunded DEP with this added responsibility after your predecessor, Gov. Scott, slashed that agency’s staffing to the bone. Aren’t you facing billions in revenue shortfalls? Doesn’t that make it likely you’ll need to cut state agencies even more?”

But no sirree, Wheeler wouldn’t do that! That would be like Santa telling Ralphie that he can’t have a Red Ryder BB gun because it might pose a risk to his baby blues.

On the contrary, Wheeler was eager to get this done. He even seemed in kind of a rush — no doubt because he didn’t want his Polar Express to miss Christmas.

Big giveaway marked RUSH

The EPA boss made the announcement last Thursday, Dec. 17. The next day, Corps of Engineers permit reviewers in Jacksonville notified local government officials that the DEP would be taking over by Tuesday of this week.

That’s a mere five days for the transition from federal to state hands of what DEP press secretary Weesam Khoury told me is expected to be about 400 permits of varying acreages and impacts.

One Corps permit reviewer wrote in an email to a local government official on Friday that unless her agency could get everything on a pending permit completed and signed by Monday, then the application would be handed over to DEP “and the review will start over from the beginning.”

“I am so sorry for this tight timeline — we were expecting to have until the end of January to finish projects but we were just informed that the transfer will happen on Tuesday,” the reviewer wrote.

Getting this bow-bedecked vehicle pushed out of Wheeler’s Christmas workshop so quickly required “shortcut after shortcut” of the law’s requirements, said Tania Galloni of the Earthjustice environmental law firm, which on Tuesday challenged the legality of the hand-over.

For one thing, the law requires a 30-day period between publication and start of the program, she said. Of course, that would fall after Christmas — and, by a strange coincidence, the Jan. 20 inauguration of a less developer-friendly administration.

To Julie Wraithmell of Audubon Florida, what Wheeler was driving wasn’t the Polar Express but a runaway train, barreling along toward a foregone conclusion no matter what the public or the law said.

Florida Scrub-Jay. Credit:
Florida Fish and Wildlife
Conservation Commission

She pointed out that not only will the DEP be taking on a lot more work, but so will the state Fish and Wildlife Conservation Commission, which will step in for the U.S. Fish and Wildlife Service in reviewing the impact on endangered animals and plants. Yet, as with DEP, the wildlife commission won’t be hiring any additional employees for the extra work.

As she talked, I started to wonder how this worked out for the first two states to try this, Michigan and New Jersey, and why no other states followed suit.

Lessons from other states

Michigan went first, in 1984, and it has not been smooth sailing. According to environmental consultant Todd Losee, former president of the Michigan Wetlands Association, the state’s environmental agency tries to be protective of wetlands but state legislators have argued about the regulations nearly every year. Some want to hand the whole thing back to the EPA.

The permitting process is slow, Losee said. He usually advises clients applying for wetland permits in one year to expect not to build until the next year. And any permit seeking to destroy a wetland larger than 1 acre has to go to the EPA anyway, because in Michigan that’s considered a major impact, he said. (Florida permit applicants often seek to destroy wetlands 20, 30, or 100 times that size.)

Still, he said, state lawmaker do like the fact that when a campaign contributor complains about wetlands regulation, they can “call up the director of the department.” They can’t do that with the feds, he pointed out.

As for New Jersey, which made the switch in 1994: This summer the state wound up suing the EPA over the Trump administration’s effort to roll back wetland protection rules, contending it would undercut their state permitting program. I suspect I know which side the developers were on in that lawsuit, and it’s not New Jersey’s.

So why haven’t other states jumped on this? I checked with a couple of Clean Water Act experts, University of Buffalo School of Law professor Kim Diana Connolly and Stetson University College of Law professor Royal Gardner, who once served as the Army’s top wetlands lawyer. Both told me the reason was simple: Money — rather, the lack of it.

No matter who’s in charge, issuing wetland permits is complicated and messy work, Connolly said. The cost of doing it right is not cheap. But federal law offers the states no help.

“When a state assumes the [wetlands] program, it doesn’t get any dedicated money from the federal government,” Gardner said. That means taking on a ton of new work from the feds without getting a dime from the feds to pay for it.

Instead, the cost will fall on Florida taxpayers — folks who are already struggling to survive in this pandemic-plagued economy.

Photo by Chase Conley, from Facebook

Florida’s biggest environmental problem isn’t that wetlands permitting is slowing down development, Gardner added. Instead of spending money on that, the state ought to be fixing all the septic tanks and sewer systems that contribute to pollution and algae blooms.

Come to think of it, making it easier for Florida developers to pave over wetlands is liable to make that problem even worse, since wetlands naturally filter out pollution. More pollution and algae blooms are likely to hurt tourism and real estate sales. And then the demand for new development will drop.

It’s almost as if Wheeler, by giving the developers what they wanted, is just like Ralphie’s dad giving his kid that Red Ryder BB gun. You remember what happened. In the short run, Ralphie’s ecstatic — but in the long run? He nearly shoots his eye out.

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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.