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The Matrix: Wetlands of Mass Destruction (WMD)
by Ed Slavin Wednesday, Oct. 25, 2006 at 3:26 PM
EASlavin@aol.com 904-377-4998 P.O. Box 3084, St. Augustine, Florida 32085
Why Florida's wetlands are being destroyed and who benefits.
THE MATRIX -- Wetlands of Mass Destruction (WMD)
By Ed Slavin
http://www.cleanupcityofstaugustine.blogspot.com
Copyright (c) 2006
Earlier this year, journalists reported record numbers of alligator attacks in Florida. Wonder why?
Businesses and governments have killed off half of Florida's wetlands, destroying alligators' natural habitat, along with fish, wildlife and water quality. As Hurricane Katrina showed, wetland destruction kills people and destroys their property during post-hurricane floods made ruinous by removing wetlands' natural flood controls.
In the 21st century, some wetland wrongdoers are being prosecuted and convicted of felony crimes against nature. Half of America's wetlands have been destroyed.
At least 100,000 acres of Florida wetlands were destroyed by development, roadbuilding, mining and farming 1990-2004, despite America's "no net loss" policy, as the St. Petersburg Times reported in 2005.
Wetlands teem with life and protect people and property from flooding.
Northeast Florida's Sierra Club dubbed St. Johns River Water Management District (SJRWMD or District) "Watersheds of Mass Destruction" after it approved Freedom Commerce Center's controversial request to destroy the forested headwaters of Jacksonville's Julington-Pottsburg Creeks (even though the Army Corps of Engineers, with primary jurisdiction over wetlands near navigable waters, opposed it).
America is not the only country with anti-wetlands leaders. Duke University scientists investigating Saddam Hussein's destruction of Iran-Iraq wetlands give talks on his "Wetlands of Mass Destruction."
Wetland destruction was long U.S. government policy. Katrina was not the first hurricane killing people left unprotected by widespread wetland destruction. Hundreds of Florida farmers near Lake Okeechobee died during 1926-27 floods.
In the 1840s, Harvard-educated lawyer/historian Buckingham Smith worked for the federal government, lambasting the "utter worthlessness" of the Everglades and "the entire region." In 1904, Florida Governor Napoleon Bonaparte Broward pushed filling in wetlands, "saving" the Everglades to be "drained and made fit for cultivation."
Criminologist Edward Alvord Ross wrote in 1907 that some seeking "success" are "in a hurry" and "not particular about the means," showing "criminaloid" personalities.
"Service to Mankind?"
South Florida's Broward County (and a Jacksonville bridge) are still named for Broward.
The Everglades are in critical condition, object of a crash $8 billion federal project.
Like Napoleon Bonaparte Broward, wetland-fillers thought "they were doing a service to mankind," as Washington Post reporter Michael Grunwald writes his book, "Swamp."
The Everglades, Florida and the Politics of Paradise."
Former EPA Regional Administrator John Henry Hankinson, Jr. joked at a conference that he had recently moved to Florida and done what tourists had long done -- "bought swamp."
Rising real estate prices mean that there's "a lot of possibility for any land in Florida," Hankinson told us.
Built in wetlands In south central St. Johns and Northern Flagler Counties, sixteen square mile Flagler Estates is home to 7300 people in 2500 homes, considered the last bastion of affordable housing in St. Johns County. The St. Augustine Record reports that County officials granting building, water and septic tank permits without inspecting lots. Meanwhile, the Florida Department of Environmental Protection (DEP) inspected and denied at least 20 permits, prohibiting purchasers from placing mobile or manufactured homes and fining some homeowners. Flagler Estates was developed by Florida General Equities of Boca Raton, which advertised home lots nationwide, showing prospective purchasers the land by airplane. FGE (now defunct) never buitl promised roads and amenities. .
Across Florida, airplane passengers observe similar rectangular wetland developments, slashed across wetlands. Some date back to the 1920s Florida real estate boom, some never lived in, still scarring Florida's wetlands with broken promises to prospective Floridians.
Year after year, Florida's wetlands are filled in by speculators and developers (who need no professional licenses, unlike construction contractors).
"Most permits are granted," says St. Johns River Water Management District Jacksonville Service Center Director David Miracle, with developers usually modifying applications to receive approval. There are only five inspectors for six counties to examine wetland destruction, he says, with staffing remaining constant amidst a real estate boom.
During 2003, the St. Petersburg Times reported, only 300 of 14,000 DEP permit applications were turned down, with developers seeking legislation in 2005 to make it even easier to fill in wetlands under ten acres.
Those who fill in wetlands illegally usually have an easy time, given "after the fact permits."
Six Square Miles Damaged, $100 Per Acre Check to UF
One forest owner damaged six square miles of North Florida wetlands and was barely slapped on the wrist. From 1996-2005, Holland M. Ware filled in 77 acres of wetlands and hurt another 3800 acres hydrologically in St. Johns and Flagler County landowner, without seeking or obtaining permits. Ware admitted his employees filled in the wetlands and built (without permits) 9 miles of new roads, 11 miles of new ditches, and 6.4 miles of alterations on existing ditches. Ware reportedly bought some 37,000 acres in the two counties for an estimated $40 million in 1996.
SJRWMD last year quietly approved a weak "consent decree" settlement with Ware, agreeing to let Ware pay $329,000 to the University of Florida for water and soil research and to reimburse over $38,000 in investigation and monitoring costs.
SJRWMD waived all civil, criminal and administrative penalties and gave "after the fact" permits. Nothing in the settlement negates the fact that Ware's UF check is a tax deductible business expense. SJRWMD Board members asked only a few questions before approving Ware's settlement.
Ware's penalty is less than $100 per acre of damage, based on SJRWMD's own calculations. SJRWMD attorney Ms. Tara M. Boonstra says that "there's no doubt that someone intended to dig ditches" and build roads and that the "ditchdigging and roadbuilding were on purpose."
No Fear
Florida boasts more wetlands than any other state (save Alaska) -- twenty percent of the total. Developer political influence means that wetland-fillers do not fear SJRWMD, the State or federal regulators, St. Johns Riverkeeper Neal Armingeon says.
Armingeon writes that landowners can "fill wetlands (happens all the time) and never be fined. DEP might issue a consent order BUT that RARELY requires the landowner to pay a fine or remove illegal fill. It's really an ‘after the fact permit'. With land values what they are, even if they [were fined], the cost of filling pales in comparison to land costs."
Teresa Monson, SJRWMD's spokesperson said "we're just not going to respond." However, Miracle concedes that the District routinely grants developers "after the fact permits" when they did not apply.
The Ware settlement was the District's largest-ever violation and settlement.
Ms. Boonstra says "there's a lot of flexibility for crafting these settlements -- if the violator had not entered into this, we would have had to pursue more time consuming costly enforcement actions that might never have yielded a result ... it's a package that makes a lot of sense." If SJRWMD seek fines, it must try its case in a State Circuit Court.
Landowner Holland M. Ware of Hogansville, Georgia reportedly owns over one million acres of Southern forests, recently angling to purchase another 200,000 acres in Northeast Florida. Ware plants ten new trees for every tree cut.
Requiring Ware to donate a small sum of money to UF is not exactly deterrence or punishment Ware is a wealthy philanthropist who lives part of the year in Ponte Vedra Beach. He's given generously to animal welfare causes, including Auburn University's veterinary school, with buildings bearing his name. In 1993, his Georgia Book Warehouse donated over 800,000 books to low-income children, the Atlanta Project (TAP) and former President Jimmy Carter's foundation reports.
Ware's 2005 SJRWMD consent decree does not require firing any managers, banning anyone from working in forestry, donating any land for parks or requiring anyone to live onsite. It gives SJRWMD access until December 2009, with designated "restoration" chores under a timetable, with possible $200 fines if the timetable isn't kept. Ware and his consultant, The Forestry Company, are "already ahead of schedule," SJRWMD's Dave Miracle states.This isn't the first time that landowners have ever filled in Florida wetlands without a permit, Hankinson says.
Elsewhere, farmers and developers filling in wetlands go to jail. SJRWMD has never reported wetland-fillers to prosecutors.
SJRWMD's lawyer explained that she formerly worked for the UF Foundation and that the District wanted "control" of fine money for research. If paid into the state general fund, "we have no control over that.... we wanted to get something that would benefit our agency here locally.".
"I'm a tree farmer," working "land that I've had for fifty years," Ware said, noting that "we growing a lot more wood than we're using" and that there's "an excess supply of wood."
Ware's trees will ultimately belong to the charitable foundation that bears his name.
Ware said of the destruction of a bald eagle nest tree by a St. Augustine developer, Pierre Thompson. (October Collective Press). "I haven't heard of it -- I've never known of anybody destroying" a bald eagle nest before.
Ware said of his consent decree that "they asked me not to discuss that one ...we manage everything well."
Asked if he had fired any managers for filling in wetlands to build miles of illegal roads and ditches, Ware said, "I couldn't comment on that."
In the American West, most forest land is government-owned. In the South, most forests are privately owned.
Ware comes from a wealthy Georgia family long accustomed to getting its way. His mother told a historian how she boarded a train in New York in 1927 but was told it did not stop in Hogansville. Her father picked up the telephone and saw to it that the train stopped in Hogansville.
"Water Flows Uphill Towards Money"
Picking up the telephone and using contacts is what lobbyists do. Recent federal statistics show America's lobbyists spending over one billion dollars per year. That's a lot of phone calls and cocktail parties for government officials.
In the water-short American West, people say "water flows uphill towards money." With two pro-business brothers named Bush as President and Governor, Florida developers need not even pick up the telephone to win their way. Governor Jeb Bush's appointees push for developer agendas without being asked -- it's their job.
SJRWMD now wisely orders us not to water your lawn more than two days per week. Yet St. Johns County Commissioners recently voted over $3 million in "incentives" for an industry that would use 1.2 million gallons of water daily for bottling beverages.
SJRWMD is "very political," Riverkeeper Armingeon reports. Florida is facing an "incredible onslaught" from developers demanding to fill in wetlands Does SJRWMD's "business as usual" encourage violators? Take a look at the matrix.
The Matrix Revealed
SJRWMD says that it calculates penalties pursuant to its own "internal" guide, a "penalty assessment matrix" that it cribbed from EPA and Florida's DEP.The matrix has never been reported before.
The matrix sets minimal penalties for violations and was adopted over 20 years ago, with no indexing for inflation. Maximum fines are $10,000 per violation. The matrix says, "Reduce by 1/2 all categories for potable water cases."
EPA's maximum fines are $25,000 per day per violation, rising to $75,000 for second offenders.
The matrix was never approved by the Board or published for public comment. SJRWMD claims it "does not have the force and effect of law,' but says it uses it to assure consistency between four District offices.
Riverkeeper Neal Armingeon says "With the limited fines, it almost ‘pays' to violate the wetland laws."
The matrix does not consider the price of the property or the value of a landowner's holdings or the financial motive (and possible gain) for filling in wetlands.
Disrespect for Environmental Law
Justice Louis D. Brandeis said when "government becomes a lawbreaker," it promotes disrespect for the law, and anarchy. Government remains a lawbreaker in filling wetlands.
SJRWMD approved a move by St. Johns County to build Holmes Blvd Extension very close to several sensitive coquina pit lakes. The District's approval apparently violated its own rules. It claimed it "approved" the project on a 3-3 tie vote by its Board of Governors in September 2002.
Spokesperson Teresa Monson says the District follows Roberts Rules of Order and that tie votes "disapprove" proposals. Despite the tie vote, Holmes Blvd. Extension was built on the pretext that the District did not follow Roberts' Rules.
Building the new county road ironically allowed discovery of illegal dumping by the City of St. Augustine at the Old City Reservoir. As retired EPA regional National Pollution Discharge Emission System Branch Chief John Marler says, what St. Augustine dumped "is obviously not clean fill, which is concrete and dirt usually." "There are no mattress springs in clean fill." (See "Oldest City Trashes Reservoir." Collective Press, April 2006, http://www.collectivepress.org).
Unlike other violators, an "after the fact permit" is not an option for the City of St. Augustine, SJRWMD and FDEP spokesmen say -- the agencies want the reservoir cleaned up and have rejected months of city flummery. St. Augustine's City Attorney James Patrick Wilson resigned October 12 and it is unknown if it was in protest of the city's environmental violations. The city hired the law firm of longtime government and property lawyers Geoffery Dobson and Ronald W. Brown to serve as interim city attorneys.xxx
Like the City of St. Augustine, Florida governments often violate environmental laws and orders, District spokeswoman Teresa Monson says. Nassau County's Judicial Center was illegally built on wetlands without a permit. Jacksonville Electric Authority was guilty of massive dumping of raw sewage, with a DEP penalty of only some $80,000 (reduced from ten times that much). In Marion County, old limerock pits were once used as dumps, Hankinson says. Marion County was rejected when it sought to fill in a sinkhole, rejected by both the SJRWMD Board and Governor's cabinet, Miracle says.
The inherent problem with punishing governmental environmental wrongdoers is that fines are paid by taxpayers, Monson explains
Former EPA Regional Administrator John Hankinson says that other resolutions include consent decrees requiring additional environmental projects, as in Atlanta, which was required to perform "Supplemental Environment Projects (SEPs) in lieu of fines" under a settlement, instead of paying money to the U.S. Treasury. Atlanta was required to "buy and restore stream channels to keep pollution out of the streams." Hankinson says, "we really stuck it to the City of Atlanta," making it protect the environment.
Environmental enforcement employees must again "feel that their leadership is supportive... it comes and goes I guess," Hankinson said.
Profitable Wetland-Filling
Large organizations profit together from wetland-filling, which is why no Florida trade association supports wetland restrictions.
Florida Power & Light is allegedly connecting power to buildings in wetlands built without proper permits. Florida landowners sometimes obtain permits for "agricultural" structures, only to build homes, Florida's Public Service Commission has been requested to consider a proposed rulremaking to ban utility connections to wetland-destroying projects without proper permits, but rejected it on procedural grounds, leaving the way open to renew the request under the next Governor.
Bureaucratic tangles result in two different agencies evaluating wetland permits by the same developer on different sides of the same street, with insufficient coordination. SJRWMD issued no permits for Robert Graubard's subdivision with 20 homes built in a wetland, now causing frequent road and sidewalk flooding adjacent to St. Augustine High School.
SJRWMD admits water "crests" and covers Lewis Speedway after rainfall. "Someone is going to get killed," one resident says.
SJRWMD staff found "drainage issues" at the archaeological site after an on-site inspection on March 2. DEP regulates the homes built across the street in a wetland, while SJRWMD regulates the one next to the high school.
On January 9, St. Augustine Commissioners approved a Robert Graubard project previously said to contain some six acres of wetlands, now said to contain none, Mayor Gardner dissenting. The site includes a significant archaeological find and the City has yet to send the report to the state archaeologist, with St. Augustine City Archaeologist Carl Hallbirt never given the report.A recent SJRWMD report inaccurately claimed there were no wetlands. SJRWMD promised to consult local residents regarding archaeological issues, but issued permits without informing them, apologizing and blaming it on the developer's changing names and bureaucratic SNAFUs.
Earlier this year, when the archaeological site and wetlands were up on the block for approval of a modified planned unit development (PUD), St. Augusting officials refused to see evidence of flooding. St. Augustine City Commissioner Joseph Boles, Jr. -- now a candidate for mayor -- allegedly shook his head "no" when citizens sought to show photos of the flooding to Commissioners on January 9th. As Ms. Sherry Badger wrote in the October 22 St. Augustine Record: "On January 9th, Commissioner Joe Boles voted to put a strip mall and condominiums where there are unexamined Indian villages, risking floods and vehicle accidents near three schools, risking children's safety." Ms. Badger wrote that, "Commissioners voted 3-2 to destroy history, falsely claiming Indian sites were protected. We asked to show videotapes and photos, including Lewis Speedway underwater during football games, school functions and parent pickups. Looking toward the planning director, Mr. Boles shook his head 'no' at our request. In response, staff then claimed there were technical problems with video equipment and city staff needed to have viewed them first. They kept cable TV viewers and commissioners from seeing just how dangerous Lewis Speedway is when it's flooded due to speculators destroying wetlands." http://www.staugustinerecord.com
Mayor candidate Boles had no response to Ms. Badger's letter at the October 23 Commission meeting during Commissioners' comments after Ms. Badger spoke.
North Florida's project-by-project divisions of labor between agencies are supposed to avoid duplication. They can also result in a narrow view of what problems exist with drainage. On the Lewis Speedway-Twelve Mile Swamp drainage, the District blames the County, not DEP or itself. Two different agencies are in charge of permits for developments on the same creek, directly across the street from one another.
The lack of inspectors means that swamps are sometimes quietly drained before permits are sought, with regulators seldom the wiser.
Hankinson says "it is not unusual for landowners to quietly do land preparation to reduce the wetland character of the land" and to "make more attractive for other uses down the road." Two homeowners agree, noting how developers cut trees (some not on the developer's property, without permission. One developer offered $1000 per acre for their lot, demanding the homeowners throw in their three bedroom home for free. Trees were cut without permits on her land and adjacent property, the homeowners allege.
Could SJRWMD do more? Does it need more inspectors? Miracle won't say.
Could SJRWMD be sued by pollution, flood, disaster and auto wreck victims killed, injured or made homeless by its policy of allowing buildings to be built in wetlands, causing floods? While governments are sometimes protected by the doctrine of "sovereign immunity," citizens might sue for damages under state tort law and federal environmental laws.
Organizations filling in wetlands are supposed to create new ones in "mitigation" projects, many of which prove to be unsupervised and unworkable.
Hankinson and Armingeon agree that SJRWMD, the Corps of Engineers, EPA and other agencies must be better environmental stewards. So does the Government Accountability Office (GAO), which reported in 1989, 1993 and again in 2005 that the Corps does little to assure that there will be "no net loss" of wetlands.
While the Jacksonville District office of the Corps was rated better than most, tripling inspections from 2003-2004, GAO also found that it "lost" 13 files on wetland "mitigation."
Agencies' "Neglect"
GAO found "The Corps has consistently neglected to ensure that the mitigation it has required as a condition of obtaining a permit has been completed." "The Corps priority has been and continues to be processing [development] permit applications," the GAO reports.
GAO reported that under Corps of Engineers rules, once the Corps "decides to proceed with an administrative penalty, it cannot subsequently refer the case to the Department of Justice for legal action."
One EPA Wetlands Person for Eight States
Like the Corps and District, EPA is also understaffed. Hankinson says there is only one of the 1200 EPA Atlanta employees works on wetland issues in eight states (Florida, Georgia, Mississippi, Alabama, Tennessee, Kentucky, North Carolina and South Carolina). "We go after the little ones," an EPA staffer told a St. Johns County resident calling about wetland violators in 2000. EPA seldom uses its veto power over wetland projects. Hankinson says prior administrators used vetoes sparingly in Florida, halting Miami landfills and rock plowing in East Everglades.
EPA rarely vetoes a wetland project, Hankinson says. After Hankinson threatened a veto over mining near the Okeefenokee Swamp in Georgia,: the project was halted.
Meanwhile, Florida's war against wetlands continues. Yet some wetland despoilers (even cities) face criminal charges for wetland-destroying "business/"
City Pleads To Felonies
In April 2005, the City of Venice, Florida pled guilty to three felony counts of Clean Water Act violations -- polluting wetlands with partly treated sewage effluent, damaging Knight Trail Park and Curry Creek.
Venice City Attorney Bob Andrews bragged to EPA, "We violate, you fine us, we pay the fines and move on." City Manager George Hunt (since resigned) said pollution and fines were part of the City's "cost of doing business."
Venice admits its illegal "business" destroyed pine trees, damaged vegetation and left wildlife homeless. Venice replaced its entire utility department with a contractor: it paid a $110,000 fine and was placed on probation. Federal agents are still investigating "The Executive Group," including former City Manager Hunt.
Developer Sent to Fed Pen
In December, Mississippi developer Robert Lucas was sentenced to nine years in prison for 41 counts of mail fraud; unpermitted trenching, draining, and filling of wetlands; and unpermitted discharge of sewage to wetlands, as well as for conspiracy to commit those crimes. Lucas' daughter, Realtor® Robbie Lucas Wrigley and his engineer, M.E. Thompson,Jr., P.E. were also convicted.
Lucas defrauded 250 low-income, first-time homebuyers who put mobile and manufactured homes on one to five acre lots in Big Hill Acres, his 2620 acre development located near Biloxi, half in wetlands (advertised as "high and dry").
Lucas put septic tanks in wetlands despite health concerns and state and federal stop-work orders.
Lucas' engineer falsely certified septic tank systems. Sewage backed up into homes.
Lucas and his daughter added handwritten notations to sales contracts falsely claiming disclosure to purchasers.
Uncharged was Lucas' lawyer, who testified May 18, 2005 at Lucas' criminal about that he was "mad" and took umbrage" at EPA, advising Lucas to proceed, lambasting EPA as being "very heavy-handed," "unethical" and "on a crusade to destroy" Lucas, describing residents "exacerbated" and "agitated."
Lucas' lawyer disputed the wetland status of only six acres, while seeking a "global settlement" that would allow an "after the fact permit." Lucas' lawyer testified, "we had no reason to deviate from our plan."
The Atlanta Journal-Constitution compared the Big Hill Acres case to a John Grisham novel.
Lucas' lawyer from 2000-2001 was none other than Jimmy I. Palmer, Jr., Mississippi's Department of Environmental Quality Executive Director from 1987-2000. President Bush named Palmer on October 18, 2001 as EPA's Regional Administrator.
EPA Regional Administrator, Palmer has vetoed no wetland projects. Efforts to obtain comment were futile.
After Palmer testified against his own agency, lawyer Jeff Ruch of Public Employees for Environmental Responsibility (PEER) blasted Palmer, noting he had never vetoed any wetland projects and "never met a developer he didn't like." Ruch called for Palmer's resignation, asking "when did he stop representing developers?"
Likewise, critics like Armingeon say that federal and state agencies' "business as usual" is to work with developers, not prosecute.
SJRWMD's current Governor-appointed members include "a utility representative, an agriculture/farming representative, an investor, a businessman, a lawyer, a marketing/public relations person, an environmental consultant, a citizen-activist and a Realtor® -- a wide variety of occupations," Miracle says.
A more fairly balanced membership might include people of more diverse backgrounds, more attuned to the importance of environmental/health issues. How about a Green Party leader, a biology professor, a nurse, a physician, a plumber, a factory worker, a shopkeeper, a retired judge, a birdwatcher, a veterinarian, a landscaper/nurseryman and a fisherman?
A newly revived Board might demand higher penalties and criminal prosecution for willful wetland-killers, eliminate"permits after the fact" and reject the outdated assumptions of a long-secret 20-year old "matrix."
Florida's water management district members are appointed by the Governor. Floridians will soon elect a new one.
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