Thursday, February 22, 2024

ANNALS OF DeSANTISTAN: Court ruling stops Florida’s sloppy wetlands permitting, saves panthers. (Craig Pittman, Florida Phoenix)

Three cheers for  U.S. District Judge Randall Moss.  From Florida Phoenix:


Court ruling stops Florida’s sloppy wetlands permitting, saves panthers

Trump-era EPA let Florida do an end run around the Endangered Species Act to aid developers

FEBRUARY 22, 2024 7:00 AM

 Aerial view of Pasco County wetlands surrounded by urban sprawl development. Photo by Lara Cerri, used by permission.

Florida has inspired a lot of great writing, from Zora Neale Hurston’s “Their Eyes Were Watching God” to Carl Hiaasen’s “Squeeze Me.” It’s not just novels, either. I totally loved Jack E. Davis’ nonfiction Pulitzer-winner, “The Gulf.”

I just read another powerful piece of nonfiction about Florida, one that I think should make the bestseller list. It’s a 97-page ruling that was issued by a federal judge last week. No, not the one about that deluded Palm Beach club owner who smells funny, committed a lot of fraud, and now is trying to sell overpriced sneakers.

The ruling I’m talking about is the one that revealed that, for the past three years, Florida has been doing a colossal end run around the rules that protect wetlands and endangered species. As a result, the judge said, the state must stop.

 U.S. District Judge Randolph Moss via U.S. District Court

It’s quite a court decision. I don’t know if U.S. District Court Judge Randolph Mosshas any books available on Amazon, but if so I plan to order all of them. I’m now his No. 1 fan.

Maybe you saw some of the dire headlines about this case, which in legalese is styled as Center for Biological Diversity vs. Michael Regan and the U.S. Environmental Protection Agency. They all read like rave reviews to me.

The Tampa Bay Times said, “Federal judge ends Florida’s oversight on wetland development.” Our own Florida Phoenix reported, “Feds erred in transferring wetlands permitting to FL agency, U.S. judge rules.” The Orlando Sentinel said, “Judge faults Florida takeover of federal wetlands permitting.”

In other words, the Florida Department of Environmental Destruc — um, I mean Protection — has screwed up so badly that Judge Moss said he couldn’t let it continue. No more can our state officials hand out federal wetland permits with all the calm deliberation of Billy the Marlin blasting a T-shirt cannon toward Miami Marlins fans.

I warned Gov. Ron “I Never Meant for Our Book Bans to Include Dictionaries, Although Look At That First Syllable” DeSantis about this. Back in 2022, I told him that he needed to stop the DEP or something like this would happen. It was in a column headlined “Florida DEP’s handling of wetland permits has become a colossal ‘Charlie Foxtrot.’”

Now he’s got an ugly clust —  errrr, I mean mess! Yes, that’s the word. A mess to clean up.

What’s worse is that the crux of this is the way state officials have been treating our official state animal. The DEP has been acting as if the Florida panther was merely a bothersome obstacle to “progress.” Instead of the protective steps called for by the Endangered Species Act, the agency offered some spectacularly inept bureaucratic maneuvering.

 Tania Galloni via Earthjustice

And when everyone involved had to defend their actions in court, said attorney Tania Galloni of Earthjustice, which led the legal battle that resulted in this ruling, their excuse was that the Endangered Species Act can be pretty darn difficult to comply with.

“’It’s hard’ is NOT a reason to not comply with federal law,” she said. (Doesn’t work as an excuse for not paying your taxes, either. Don’t ask how I know this.)

DEP Communications Director Alexandra Kuchta said that the judge had ignored “Florida’s successful implementation of the program for more than 36 months.” Her definition of “successful” is pretty different from mine, apparently.

She also said Florida’s wetlands permitting “has been brought to an abrupt halt by the stroke of an activist federal judge’s pen in Washington, D.C.”

That Moss took such a drastic step should tell you how bad it was. Moss himself observed, “Setting aside unlawful agency action almost always results in some disruption.”

As you can imagine, the developers who’ve been “disrupted” are a tad upset. I hear there’s been some serious weeping and wailing and gnashing of teeth.

Rusty Payton, the CEO of the Florida Home Builders Association, complained that the ruling “has introduced an additional layer of confusion and uncertainty” into a market already struggling to deal with worker shortages.

“We kind of had the rug pulled out from under us,” Lance Pierce, executive director of the Association of Florida Community Developers, told me.

I’d feel sorry for them, but frankly it’s their own fault.

The Holy Grail

In order for you to understand why I am such a fan of Judge Moss’ ruling, I have to tell you a story that happened, as the Doobie Brothers would say, somewhere back in the long ago.

In 2005 I was interviewing a well-connected lobbyist for Florida’s powerful development industry about federal permits for destroying wetlands. He didn’t like them.

 An example of Florida wetlands. Credit: Julie Hauserman

Wetlands were once viewed as wastelands, but now we know they’re incredibly important. They absorb floods, filter out pollution, and provide habitat for important species of wildlife, not to mention soaking up CO2 from the atmosphere.

They’re supposed to be protected by the Clean Water Act, passed by Congress in 1972. Under that law, the U.S. Army Corps of Engineers is in charge of issuing permits that are supposed to limit the damage to wetlands, with the EPA given veto power should any bad permits get by the Corps. (In all this time the EPA has vetoed only 14 permits — two in Florida.)

Florida developers could get the federal permits they needed from the Army all right, but it took the Corps a loooooong time to issue one. The lobbyist told me his clients would give just about any essential body part to see the state put in charge of issuing those instead of the feds.

Why? Because the state would crank them out much faster and be more likely to say yes to everything without a lot of questions.

Getting the feds to defer to the state’s judgment on wetlands permits was, he said, “the Holy Grail” for developers.

Did you ever see “Indiana Jones and the Holy Grail”? Remember the scene where the rich American grasps what he thinks is the Grail and drinks deeply, expecting immortality? And instead, he shrivels up like a prune? The old Knight Templar who’s been guarding the Grail for centuries murmurs, “He chose … poorly.”

That’s what happened here. The developers made a bad choice. It just took them until now to find out.

‘As you wish’

Two states, Michigan and New Jersey, had already jumped through all the legal hoops of the Clean Water Act to take over handing out federal permits from the Corps. But none of the other 48 followed suit. They knew it would be expensive and labor-intensive.

In 2006, the DEP looked into becoming the third state but dropped the idea. The agency’s leaders realized it would require a lot more employees and money to do what the Corps was already doing.

Twelve years later, in 2018, that pro-business Palm Beach club owner was in the White House. As a result, Florida’s builders and developers decided the time was right to push the state takeover again.

Payton called it a “quest for a balance between environmental protection and efficient permitting times.” I think the latter mattered more to them than the former.

Florida legislators are always eager to say “As you wish” to developers the way Westley says it to Buttercup in “The Princess Bride.” They passed a law calling for the DEP to take over federal permitting. They called it “streamlining,” as if you’d get the same product, but faster.

Two years later, in 2020, the DEP announced that it would be actively pursuing the takeover despite strong objections from nearly every environmental group in the state. The Holy Grail was at last within reach!

Just before Christmas that year — shortly after that Palm Beach club owner lost his bid for reelection — his EPA boss played Santa and gave the developers what they’d wanted for so long.

The EPA boss, a former coal industry lobbyist named Andrew Wheeler, said at the time that Florida had “beyond question one of the greatest environmental records of any state.” And he kept a straight face while he said it, too!

Wheeler also invited other states to follow in Florida’s footsteps. Boy howdy, I bet Moss’ ruling made them glad that they didn’t do it.

“I think this may discourage other states from proceeding with anything similar,” said Royal Gardner, a Stetson University School of Law professor who was once the Pentagon’s top wetlands lawyer.

No limit to harm

This is where the DEP and the developers messed up.

In designing the new state-run federal wetlands program, their goal was similar to the goal of the Daytona 500 competitors: Put the pedal to the metal and go as fast as you can.

“They wanted to make it easier for the developers by making it easier to get around the Endangered Species Act,” Gardner told me.

One of the things that slowed down the Corps from issuing wetlands permits was consulting on many permits with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service. They would have to do this when the development project might affect an endangered species, he explained.

 Panther, state animal of Florida. Credit: Lovett E. Williams via State Archives of Florida

Those agencies would be asked to provide an analysis for each project — a “biological opinion” — about whether it would imperil the existence of species such as panthers, sea turtles, and manatees. In each case, they’d set a limit on how many of that species could legally be “taken” — in other words, harmed or even killed. Moving ahead without that biological opinion would leave the developer open to being sued, he explained.

But our clumsy DEP, trying to placate the impatient developers, suggested an approach that would speed everything up. Working with the EPA, they obtained a blanket statement from the U.S. Fish and Wildlife Service that the state’s permits wouldn’t threaten the future existence of any of Florida’s more than 100 imperiled species.

That blanket statement named just a handful of species “and, even for those, offers little analysis,” the judge wrote. It also contains no specific limit on the “take” of the imperiled animals.

Doing it the right way, preparing a species-specific opinion on each project, the Trump-era EPA contended, “would be extremely costly and take years to complete and therefore is . . . not an option that Florida would pursue.” Oh mercy, it’s TOO HARD (fakes wiping away tears).

By doing it the wrong way, the DEP has been handing out permits that don’t set any limits on how many of these endangered species can be killed by each project. It’s as if the DEP were Lindsey Lohan in “Mean Girls” yelling “The limit does not exist!”

Fortunately, at the urging of Earthjustice and its environmental organization clients, the judge put a stop to it before the state could issue the final permits for a pair of particularly destructive developments in Southwest Florida, Kingston and Bellmar.

Taken together, those two projects would have been responsible for killing off about 25 panthers a year — enough to wipe out all of them in just a few years, and all with the DEP’s blessing. Now the developers are stuck, unable to move forward.

The rubber stamp didn’t work

Ironically, all that skip-a-step finagling didn’t work out the way the developers wanted. According to a Bloomberg Law story from 2023, the developers didn’t get the speed-up they wanted.

Why? Because too many of them crowded in to take advantage of the sloppy new system.

“Developers filed for triple the Army Corps’ annual average of permit applications, plus hundreds of (uncompleted) Corps applications that were handed over to the state,” Bloomberg Law reported.

“Faced with the onslaught of permit applications, early staffing challenges, and the steep learning curve involved in taking over permitting from federal agencies, Florida officials have approved wetlands permits at roughly the same rate as the Army Corps did in the eight years prior to 2021.”

And now, thanks to the illegal set-up, Moss says they cannot do it anymore.

 The Supreme Court recently struck down the EPA’s definition of waters of the United States, or WOTUS, the term for what waters and wetlands the federal government had authority to regulate under the Clean Water Act. (Photo courtesy of the Iowa Department of Natural Resources)

In 36 months, the DEP has issued around 2,000 wetland permits. They only denied the few where the applicant had not provided adequate information, Galloni told me. I wish Judge Moss had said the DEP has to go back and redo these permits the right way, but alas, he did not.

The judge’s decision also left room for the EPA to request he allow Florida to continue to issue permits that do not involve the Endangered Species Act. But I’m not sure that will happen.

In the past three years, the EPA has repeatedly objected to the permits that Florida issued. You can see why the feds might now just sit back and accept the judge’s decision. But when I asked if that was the plan, an EPA spokeswoman would say only that they were still reviewing the decision.

Anyway, here’s the best news of all: Judge Moss isn’t done with this case. He still has to rule on some remaining Clean Water Act issues. After reading what he did with this one, I am definitely ready for a powerful sequel. Maybe he can sell the movie rights!

Call it “Judge Moss and the Holy Grail.”

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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.

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