Army Corps: Friend or Foe? By Geniusofdespair

When it comes to preserving wetlands: They are definitely not friends, in fact, it is safe to say they are complete failures at their task! About 80,000 acres of wetlands have been lost to development since 1990.

At an Army Corps workshop Friday, to help developers navigate the permitting process, I asked the Corps, "What about granting a permit if a developer bought 20 acres of wetlands in the 'model lands' (area known to the Corps to be environmental)?"

The answer in my head was, if a developer is stupid enough to buy 20 acres of wetlands in an environmental area -- tough luck on his investment. But I was wrong (so wrong, I should start speculating in swamps).

The Army Corps saw it this way:

They just can't flat out say no. They said the Corps has to process the permit and then there was this talk about a deal being struck, where the developer would have to minimize the impact, yadda, yadda, a lot of doublespeak. Hello! Why couldn't you just say "NO" in my scenario Army Corps? It was 20 acres of wetlands?

This mindset is exactly why we have lost much of Florida's wetlands to sprawl developments.

According to a defining book on this subject, Paving Paradise by St. Pete reporters Craig Pittman and Matthew Waite, "One acre of wetland can hold up to 1.5 million gallons of floodwaters." And, "every 2.7 miles of wetland that a hurricane crosses, its storm surge is reduced by a foot." And, "a 500,000 acre swamp provides $25 million worth of aquifer recharge and flood storage."

There is even a law that protects wetlands: The Clean Water Act. But the Army Corps instead of denying permits, looks for loopholes and creative solutions around the Act. The latest: The Army Corps appears to be pushing mitigation. In fact, they gave me a pamphlet on it which says:

The Corps received Congressional authority to issue its compensatory mitigation rule as part of the National Defense authorization Act of 2004. The goal is to provide more opportunities for compensatory mitigation...

Mitigation is a terrible idea. What it does is trade natural wetlands for preserving wetlands somewhere else, or, worse, CREATION of fake wetlands somewhere else. They have mitigation banks. That mitigation can work sort of like NYC developers buying air space from neighboring buildings. So now the imaginary developer in the Model Lands can also turn to a mitigation bank to get more developmental use of what should be unusable wetlands. The Army Corps' policies has backed State agencies into a corner. If the State want to save wetlands, they have to purchase them at inflated prices because the Army Corps just won't say no. They give developmental value to land that shouldn't have that kind of value. They think of one scheme after another to get around the Clean Water Act instead of doing their job and enforcing the Act.

The authors of Paving Paradise go into all the schemes in their book and they have formulated a 12 Step Program to get the Army Corps out of this Let's Make a Deal loop (The 12 steps follow their preamble):

Corps officials say Congress never asks anything about the program other than how fast they can issue more permits. But that’s not true. In 1988, 1993, and 2005, Congress asked the Government Accountability Office to look into how well the Corps was doing its job under the Clean Water Act.

The GAO’s answer, in every single report, has been the same: awful. The title of the most recent report says it all: “Wetlands Protection: Corps of Engineers Does Not Have an Effective Oversight Approach to Ensure That Compensatory Mitigation Is Occurring.”

“Until the Corps takes its oversight responsibilities more seriously, it will not know if thousands of acres of compensatory mitigation have been performed and will be unable to ensure that the section 404 program is contributing to the national goal of no net loss of wetlands,” GAO investigators wrote in the September 2005 report.

The problem is, Congress has never acted on the GAO’s findings. And it didn’t do anything about the 2001 report from the National Research Council that said no net loss didn’t work and the Corps wasn’t doing its job.

But now, add the GAO reports and the NRC report to the recent string of federal court reversals for Corps decisions in Florida, especially Judge Hoeveler in the Lake Belt case. In those decisions—by Hoeveler, by Judge Middlebrooks in the Scripps case, by Judge James Robertson who invalidated a 404 permit for Florida Rock to mine in panther habitat near Fort Myers—the judges all said the Corps wasn’t following the law and doing its job of protecting wetlands. All those reports and rulings combined should give Congress enough reason to make changes. They should certainly give the taxpayers a strong reason to demand Congress do something to fix this broken system.

We’ve spent four years researching the state of wetlands protection in Florida. We are reporters, not biologists or lawyers or policy experts. Still, after doing hundreds of interviews, reading thousands of pages of documents, and spending more time on a single subject than most reporters ever get a chance to, we can offer this thought: if nothing else, the government would do well to be honest about how things really work.

Think of this, then, as a 12-step program toward making a more honest
system:

1) No more “no net loss.” As with any 12-step program, the first step is acknowledging that there’s a problem. Congress and the Florida legislature (and every other government entity in the United States) should stop passing laws that allow the rampant destruction of wetlands and depend on mitigation to make it all better. They should acknowledge that mitigation cannot replace what is lost when wetlands are destroyed.

They should focus on policies that would encourage developers, roadbuilders, miners, and everyone else to avoid dredging or filling swamps and marshes—especially the road-builders, who are using tax dollars to destroy public assets and then spending tax dollars on poorly conceived efforts to replace them.

If lawmakers don’t make a change, then they’re going to have to keep spending millions in tax dollars trying to fix the problems that result: flooding, water pollution, and so on. Isn’t it more conservative to conserve the natural processes that are already there rather than spend government money on a man-made fix?

2) Stop the Enron-like accounting tricks. Don’t preserve a wetland and count it as if it were new acreage that never existed before. Don’t claim a melaleuca infestation justifies destroying the wetland where it grows—after all, it’s still a wetland. Don’t say removing melaleuca from one wetland justifies destroying a wetland elsewhere. Don’t say uplands equal wetlands, especially when it comes to selling wetland credits. None of those things help Florida or any other state regain any of its lost wetlands. They’re just a way to cook the books and allow for continued destruction.

3) Emphasize restoration. All over Florida are pastures and farmlands that once were wetlands but were drained for cultivation or to
make room for cattle. A wetland that’s been filled in and paved may never be a wetland again, but one that’s been converted by agriculture can be restored. Restoration appears to offer a far better chance of success than any other form of mitigation. It should be the only kind of mitigation allowed in the mitigation banking program. And if a development must destroy a wetland, then the developer should be required to restore—not create, not enhance, but restore—wetlands elsewhere. Preservation is nice—an admirable goal outside of no net loss—but it should not count toward any sort of ratio that allegedly makes up for destruction, because it doesn’t.

4) Institute a pay-as-you-go system. One way to encourage avoidance of wetlands is to make the federal permitting program pay for itself. When the Corps approved the Lake Belt miners’ wiping out more than 5,000 acres of wetlands in the Everglades, it charged just $100 for each permit. That’s the same amount the Corps charged the developer of a subdivision called Grand Hampton in Tampa, which in its first phase managed to avoid touching all but one acre of the 189 acres of wetlands on its site. That’s unfair to the developer who spares more wetlands, and it’s unfair to the taxpayers, because the fee does not cover the cost of reviewing the permits.

By contrast, Florida’s water management districts charge for permits on a sliding scale that’s tied to the size of the project, and the money stays with the permitting agency. Congress should put the cost of a federal permit on a sliding scale based on the size of the impact to wetlands, with the cost escalating rapidly as the acreage increases. That would provide developers, miners, and everyone else with more of an economic incentive to avoid them. And if the money generated went to funding the Corps’ regulatory program, the Corps could hire enough employees to give permits a more rapid yet more thorough review.

5) Set a deadline for the Corps. Developers’ biggest objection to the Corps is how long it takes to review permits. An official of the National Home Builders Association told us unofficially that his group would be happy to pay more for permits if the Corps had to meet a deadline for processing them. So Congress should tie those two issues together, raising the cost of a permit much higher while telling the Corps that the time for reviewing permits is limited. The deadline could vary by the size of the project and whether it involves wiping out the habitat of any endangered species—another way to encourage a smaller impact. But the penalty for the Corps’ missing its deadline should not be automatic issuance of the permit (and the state should drop that provision as well). Instead, to borrow an idea from the field of pizza delivery, the penalty for late arrival should be a full refund of the fee. That would give the permit reviewing agency an incentive to keep the process moving without making wetlands protection the victim of an agency failure.

6) Tell the public what’s happening. (THIS IS THE MOST IMPORTANT STEP IN MY VIEW)Currently the Corps makes all of its decisions in secret. The state’s water management districts are nearly as secretive, waiting until all the details of a permit are worked out before putting it to a routine vote that usually lumps a dozen or more permits together in a “consent agenda” that’s passed all at once. Since the public is paying the bills, and suffering the consequences of bad decisions, the public should be given better access to information about how each agency is doing its job. The Corps already posts public notices about individual applications on its Web site, but it’s not in a user-friendly format.

A better way to handle this would be to copy what the St. Johns River Water Management District does: it posts on its Web site a copy of every scrap of paper—every map and letter and memo—involved in each of its wetland permits. That information stays on the Web site even after a permit has been approved. Even better for the public would be the Corps’ and the state agencies’ linking those permits to locator points on an interactive map of the area—all permits, both the approved ones and the new applications. That way, the public could see just exactly how many wetlands are being wiped out in their region, their city, their neighborhood.

Permit reviewers need to stop looking at the public as a nuisance that slows down their process and instead use the public to fact-check their work. After all, one permit the Corps denied resulted from alert neighbors spotting false information in an application to build a new Wal-Mart in New Smyrna Beach. The Corps was fooled, but the neighbors knew where the wetlands really were.

7) Map the swamps. The Florida Fish and Wildlife Conservation Commission has already launched a project to map important wildlife habitat across the state, using its own analysis of satellite imagery. The state wildlife agency should team with the National Wetlands Inventory and the state’s water management districts to produce an updated map of where Florida’s remaining swamps, bogs, and marshes exist, while rating their worth as wildlife habitat, for water pollution cleanup, and for flood prevention. They should post the results on a publicly available Web site, as NWI does now, and with a way for the public to correct any bad information. The two agencies should also produce annual updates charting where the greatest losses have occurred and analyzing why.

8) Find the tipping point. There is a line that must not be crossed, a line beyond which too many Florida wetlands will have been destroyed, and with their destruction, our water supplies ruined, our flood protections gone, and commercially viable wildlife like fish and shrimp vanished. State and federal officials should define that line and then use it to establish how much needs to be saved. (Of course, we may have already crossed it.) When state biologists study the habitat of certain endangered species, like panthers and gopher tortoises, they try to figure out what an area’s “carrying capacity” is—how many of that kind of animal the area can support before there are too many of them and they run out of food or fall prey to illness. Does Florida have a carrying capacity for people?

9) Save the priority areas. Once the maps are in hand, then the state Department of Environmental Protection and the Department of Community Affairs should work with the Corps, EPA, and FEMA to identify the wetland areas that should never be destroyed. This goes back to the recommendation that OPPAGA made to the legislature to begin “identifying priority conservation areas and cooperatively developing strategies to protect and restore those areas, while encouraging economic development in more appropriate areas.”

In early 2007 a new group set up by the legislature, the Century Commission for a Sustainable Florida, chaired by St. Petersburg mayor Rick Baker—a staunch Republican and a strong ally of Governor Charlie Crist—issued its first report. One of its recommendations called for the state to “identify Florida’s most precious natural resources and develop a comprehensive Conservation Blueprint for the state.” That recommendation received praise from Department of Community Affairs secretary Tom Pelham, who said it’s essential to map out what natural resources the state wants to save, so growth can be directed elsewhere. “Mapping always scares people to death,” he said, noting that there could be private property rights concerns that run counter to what might be best for the broader public interest. “For that reason no one has really done it.” But when private citizens and businesses wipe out wetlands, dry out springs, and damage other vital resources, he said, the public as a whole winds up paying the price—both in environmental degradation and in the price of restoring what was lost.

The state has already collected a lot of the data necessary for just such a map, and the next step should be collating it and—admittedly, the hard part—deciding what’s most important to preserve. That part should be done in the open, so the public can see what the data says. Quipped Century Commission executive director Steve Seibert, “Wouldn’t it be something if data actually drove government policy?”

10) Consider the Canadian variation. In Ontario, the government has mapped all the wetlands, labeled some of them a priority to preserve, and banned development from those areas. Then, to give landowners an
incentive to leave wetlands alone, it offers tax breaks for property that keeps its marshes and swamps in a natural state. After all, saving wetlands is a public service, and the private entities who do the work should be rewarded. A good starting point would be with the list of people who have asked the Corps for a “jurisdictional determination” so the Corps can tell where the wetlands are on their property. Usually that information has been used to mark what needs to be destroyed, but giving tax breaks could turn it into a way to prevent destruction.

11) Put a price on failure and dishonesty. The Corps can’t say which permits were carried out properly or which mitigation projects have failed because it has only seven employees assigned to monitor thousands of projects all across Florida. In their best years, they manage to check on less than a quarter of all the permits issued. And when consultants file false reports—as happened with the Wal-Mart in New Smyrna Beach, where the consultants claimed a smaller wetlands acreage than was actually at stake—or when applicants break promises about mitigation— as happened with the Wal-Mart in Oldsmar, which was going to sell its “preserved” wetlands until the neighbors blew the whistle—there are no consequences. There are no fines, no ban on doing business with government agencies, no requirement that a project cease, no threat that future permits will be denied or at least delayed.

Where there is no consequence for failure or dishonesty, there is no incentive to do things right. As Roy “Robin” Lewis, a Tampa Bay area environmental consultant who has spent 30 years working on wetland restoration projects around Florida, told us: “We only care about it working if compliance inspections are at such a level that if people screw up, they get caught. That’s not taking place.” At the very least, the Corps should require permit applicants to post a bond to pay for inspections of the mitigation site by Corps employees. If they find it’s not working, the permit holder should be required to fix it or face stiff administrative fines. Other consequences could follow if it recurs, including a refusal to process future permits until the work on the previous ones is completed. That’s the way a private business would handle a contractor slow to follow through on promised work, and that’s the way government should handle it too.

12) Give more people the power to say no. Some of the most stringent wetland regulations in Florida have been imposed by county governments. For instance, in 2007, Hillsborough County’s Environmental Protection Commission had a $2 million annual budget and employed 27 people to review permits and check whether the rules are being followed. Homebuilders tried in vain to get the legislature to override county rules by arguing they duplicate what the state and federal agencies do. The homebuilders dislike them not because their requirements are the same as the other agencies, but because the county’s rules are tougher.

The state does not protect wetlands of a half-acre or less, but Hillsborough County does. For 20 years, Hillsborough has said no wetlands can be destroyed unless there is a documented need to do so to use the property, say, for a road for access to the land. Only then can county officials consider mitigation. State officials take the opposite approach, EPC attorney Rick Tschantz said, allowing developers to propose mitigation up front, which then becomes the justification for approving the permit. The result: Hillsborough has lost little wetland acreage to development. Clearly, the stringent local approach has done what the Corps and state could not.

On the federal level, the “elevation” policy needs to be ditched, since it discourages the agencies from objecting to Corps decisions. Instead, in addition to EPA having the veto power, FEMA should have the power to shoot down wetland permits too. Then, perhaps, it could stem the tide of building in flood-prone areas, thus decreasing the number of properties that must be covered by taxpayer-subsidized flood insurance. Each agency that gets to veto projects should be held accountable for their use or misuse of that power. They should be required to submit an annual report to Congress on how often they have vetoed permits and explaining why they did so—or why they failed to do anything to protect the public.

Also see: today's post Grosskruger: What happens to Commanders when they retire.