Florida DEP’s handling of wetland permits has become a colossal ‘Charlie Foxtrot’

Hey Gov. DeSantis, you need to fix this before the EPA fixes it for you

January 27, 2022 7:00 am

An example of Florida wetlands. Credit: Julie Hauserman

Dear Gov. DeSantis,

Hi there! I keep writing you these letters and you keep ignoring them, but I feel I need to be persistent — for your sake. You claim to care about Florida’s environment, but when you talk about it, all you ever say is some version of, “I am throwing a lot of money at some of the problems.”

As any child of divorced parents can tell you, “throwing money” is not the same thing as “showing care.”

Look, I know you’re busy dodging questions about whether you got a booster shot, waging your crusade to protect sensitive white people from feeling bad about racism, and pretending to ignore Roger Stone’s jibes about you being nothing but “an obscure congressman with a bad haircut and an ill-fitting suit” before his citrus-complexioned friend gave your career a boost. But this is really important, and not just because it could make a difference in your reelection campaign.

Gov. Ron DeSantis addresses the press on July 19, 2021. Source: Screenshot/Florida Channel

You need to do something about the Florida Department of Environmental Protection and how it’s handling wetlands permits.

And I mean right now.

Remember when the DEP took over federal wetlands permitting in the waning days of the Trump administration, and a lot of environmental groups predicted it would be a disaster? Turns out — SURPRISE! — they were right.

By “disaster,” I mean it’s become what you yourself would call a colossal Charlie Foxtrot — the military euphemism for a civilian word that starts with “cluster.”

Here’s the problem: When the DEP first took over handling federal wetlands permits from the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency, the agencies were all using a very restrictive definition of wetlands.

That definition had been written by the Trump administration, revising one from the Obama years. The Trumpian definition removed protections for more than half the nation’s wetlands and hundreds of thousands of miles of upland streams. It did this by changing the definition of what constitutes a “water of the United States” and thus deserving of federal protection.

In Florida, that worked out to about 6 million acres of wetlands that suddenly had no federal protection at all.

The narrow definition was designed to give developers, miners, loggers, and other wetland destroyers a lot more leeway in what they could obliterate before they ever needed a federal permit.

Meanwhile, places where a permit was still required ended up covering far less acreage. That definition was “business friendly,” in the same way that I tend to be “ice-cream friendly” — feeding a big appetite, but not a healthy habit.

In August, though, a federal judge kicked that narrow definition to the curb. She ruled that it suffered from “fundamental, substantive flaws” and warned that it could cause “serious environmental harm.”

The judge’s ruling meant the legal definition of wetlands broadened back out to include a lot more swamps, bogs, and marshes that the Trump-written definition did not.

But not in Florida!

Thumbing their noses

In defiance of what that federal court decreed, your state agency is continuing to crank out its Clean Water Act permits based on what is now an old, out-of-date definition of what constitutes a wetland. That means those permits don’t cover all the wetlands they should.

As legal flaws go, that’s about as fatal as the Death Star’s thermal exhaust port.

The environmental law firm Earthjustice, which is suing to overturn the speedy, sloppy EPA handover of federal permitting to the DEP, has found records showing the DEP has processed at least 49 of these fatally flawed permits so far.

“They are thumbing their noses at federal law and thumbing their noses at the EPA,” Tania Galloni, Florida managing attorney for Earthjustice, told me this week. “It’s really outrageous.”

I sought a comment about this from the DEP, but I guess they were too busy wielding their rubber stamp to respond.

Meanwhile, the EPA has noticed what’s going on. As of December, that agency had sent 10 letters to the DEP to say, in effect, “Y’all are breaking the law, and you better cut it out before things get nastier than a Janet Jackson beat.”

One letter — couched in the kind of wording that you need a Bureaucratic-to-English dictionary to interpret — tells the DEP that the feds are really ticked off about this. The other nine letters show just how ticked off.

Sunset over the preserve, Big Cypress National Preserve, 2015.
Publisher: U.S. National Park Service.

Each one objects to a permit DEP is on the verge of approving. The permits are from various places around the state: St. Augustine, Oviedo, Jacksonville, Fort Myers, New Smyrna Beach, Bunnell, Port St. Lucie, even a Florida Department of Transportation visitor center to be built on U.S. 41 in the Big Cypress Preserve.

Every single letter contains this sentence: “Accordingly, the EPA objects to FDEP issuing a CWA Section 404 permit for the proposed project.”

Governor, you may assume a fight between Florida and the federal government is a good thing. After all, that’s been your strategy for battling the omicron variant: Blame Biden! That approach does guarantee you a star turn on Rupert Murdoch’s network.

But this is a really bad situation for three reasons.

One is obvious: Florida is allowing developers, miners, etc. to kill a lot of wetlands that we need.

Our wetlands filter pollutants before stormwater runoff reaches our waterways. They soak up floods. They recharge our drinking water supply. They provide habitat for a wide variety of wildlife.

Their filtration ability is huge. One recent Canadian study found that wetlands provide filtration worth billions (which is a lot of money, even if we’re talking Canadian dollars.) You, of all people, should appreciate how important that filtration part is, given your promise to do something to halt all the toxic algae blooms that feed on pollution.

Wetlands also capture a lot of the carbon that drives climate change, without the state enacting any of that “left-wing stuff” you dislike.

Get rid of the wetlands and you lose all those natural functions.

The second reason why this is bad is that if the DEP pushes its illegal approach too far, the EPA could take the wetlands permitting program back from the state. That would be embarrassing for you in an election year.

The third problem is downright ironic. The developers, miners, and so forth pushed for the EPA to hand over federal permitting to the DEP so they would get their permits approved much more quickly. When the transfer occurred in December 2020, Florida Home Builders Association CEO Rusty Payton said, “By turning this process over to the state, we expect a much more consistent and improved way to get 404 permits approved in a timely manner.”

But if all the DEP permits have that same fatal flaw, the EPA will object to every single one. The permits can’t move forward unless the EPA removes its objections. Take a wild guess how much more sloooooooowly the permitting process gets from here.

For an example of what I mean, look at what’s happened with one permit application from Fort Myers, which involves plans to convert a potato field into a lime rock mine.

Call for W.L.!

The EPA’s objection to the rock mine’s wetlands permit, first reported last week by the Fort Myers News-Press, is far from the first hurdle the project has faced.

The Troyer Brothers have been trying since 2010 to get permission to start blasting their potato field apart with dynamite so they can harvest the rocky rubble for sale as a building material, according to Amber Crooks of the Conservancy of Southwest Florida.

Environmental consultants won the county commissioners’ approval to change the zoning on the Troyers’ land in 2019 by arguing something that I guarantee you will read and say, “No way! That’s ridiculous.” But it’s true:

They contended that blasting for the mine, creating a hole 110 feet deep on a mining footprint of 781 acres, was actually better for the environment than continuing to farm potatoes. The commissioners went along with that ludicrous claim, ignoring numerous (and vociferous) objections from neighbors and environmental groups.

The commissioners were so accommodating to the Troyers’ mining plan that they not only changed their zoning but also repealed a local rule that said no new mine could be approved without showing there was a need for it.

One of the Troyers’ neighbors, a company producing experimental seeds, tried to challenge those decisions in an administrative hearing, but lost. Then, in 2020, the state Department of Economic Opportunity gave its blessing to the mine, too.

In contrast to this series of locally-sourced green lights, the Corps has been hesitant to say yes.

Florida panther. Credit: State Archives of Florida.

The company needs a federal permit to destroy wetlands that are amid what has been classified as primary panther habitat. Crooks told me the federal agency had talked of doing a cumulative impact study of the Troyer mine and other proposals that would wreck lots of wetlands in that same area, which seems like a pretty good idea.

But once the Corps had to hand off the wetland permitting to the DEP, Crooks said, there was no more talk of studying cumulative impact. There was also apparently no further discussion of the impact on panthers — which, I’d like to remind you, are our official state animal. Instead, the DEP put the permit on a fast-track, at least until it ran smack into that EPA objection letter.

Now the project is stuck in limbo, with no end in sight. Troyer Brothers’ public relations person did a lot of harrumphing about this to the News-Press — and with a straight face, too!

“The Troyer Brothers mine went through a highly regulated and strict process,” said Angela Bell. Alas, Ms. Bell needs to learn that the EPA is, as my kids say, the boss level of the game. The Troyer Brothers may have won lots of early rounds, but they can’t get the permit if they don’t beat that last level.

The whole situation reminds me of one of my dad’s favorite jokes. It’s about a country boy who’s applied for a job at a railroad yard. The foreman decides to test him.

“What would you do,” asks the foreman, “if you saw a 60-car train barreling in from the left at 70 miles an hour, and a 70-car train roaring in from the right at 60 mph, both on the same track?”

“I’d holler ‘W.L!’” replies the country boy.

Baffled, the foreman asks why.

“Because,” the country boy explains, “my brother, W.L., ain’t never seen a trainwreck that big.”

Fear not, Gov. D, there’s no need to holler for W.L. I have a solution for you that will avoid the trainwreck.

Sure, you could do nothing and hope that the Supreme Court will at some point rewrite the definition of wetlands again. But that’s liable to take months, if not years. Plus, “waiting for someone else to act” is hardly the picture of leadership you are trying to project for the voters this fall.

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

Besides, none of this started with you. It was your predecessor, Rick “Jobs!” Scott, who launched the state takeover of the federal permits. And your former mentor-turned-frenemy is the one who created the recent confusion over what a wetland is and isn’t.

So, here’s what you need to do, and I mean right now. You call a press conference in some scenic spot, such as the Green Swamp. You then announce that you are immediately ordering the DEP to hand back the federal wetlands permitting program to the EPA and the Corps.

You tell the reporters that Florida is no longer going to do the federal government’s work for it. You tell them you are taking this step to protect the state’s taxpayers from having to foot the bill for what is clearly a messed-up federal program. Then — and you are already pretty good at this — you skedaddle back to Tallahassee without answering any questions.

It’s a total win-win! You don’t have to worry about the EPA making you look bad. The DEP gets more time to work on those few projects you like to brag about. The developers and miners don’t need to worry about their permits being hung up in a messy dispute. And, of course, a lot of wetlands will be saved, thus helping thwart pollution and toxic algae blooms.

Assuming you really care about that.

Your pal, Craig

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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.