October 24, 2014

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Paving Over Paradise

Read an excerpt of the new book 'Paving Paradise: Florida's Vanishing Wetlands and the Failure of No Net Loss' by Craig Pittman and Matthew Waite. It's an expose of state and national wetland protection laws.

| 3/1/2009
Paving Paradise:
Florida's Vanishing Wetlands and the Failure of No Net Loss
By Craig Pittman and Matthew Waite
» Now available from the University Press of Florida. Visit book's website.



Ch. 9
The Myth of Mitigation


This is how no net loss really works:


Florida’s Panhandle is known for its sugar-white beaches and its picturesque dunes. But amid the dunes on Pensacola Beach lie scattered marshlands, lush with saltmeadow cordgrass and pennywort. These marshes are vital to the purity and health of the emerald green waters of nearby Santa Rosa Sound, home to a plethora of sea trout, redfish, ladyfish, and jack crevalle.

In 1997, a development company with control of 28 acres of the beach proposed building a $250-million luxury condominium project called Portofino. The plans called for building five towers, each with 150 units, each 21 stories tall. The Portofino condos would be the tallest buildings between Tallahassee and New Orleans.

The two main partners in the company building Portofino were lawyer Fred
Levin, a leading Democratic Party fundraiser with close friends at all levels
of government, and his brother Allen, one of the Panhandle’s most successful
developers. Fred Levin’s name carried a lot of weight in Florida. He used
his political contacts to score a multimillion-dollar fee from a major tobacco
case, then made such a hefty donation to the University of Florida that the law
school was named in his honor. He gained further fame by helping to manage
the career of boxing champion Roy Jones Jr.


[Photo: Lara Cerri, St. Petersburg Times]
Clean Water Network activist Linda Young walks through sparsely vegetated man-made marshes on Pensacola Beach that were supposed to mitigate the destruction of wetlands to build the Portofino condominiums, seen in the background

Fred and Allen Levin grew up on Pensacola Beach, where their father once
held the exclusive concession contract for selling snacks and souvenirs to the
tourists. Back then Pensacola Beach was a sleepy little resort village with scattered
mom-and-pop motels and lots of one-story concrete-block homes available
for rent by the week or month.

But the Levins’ minds were not fogged by nostalgia. They saw the beach
as a resource to be exploited. Still, they appreciated the role nature played in
making the property attractive to buyers. So they planned to preserve several
of the picturesque dunes as part of their project—but not the marshes that
were so important to the sound. Those did not fit the Levins’ aesthetic vision.
“When we did our development, we could not do a development on this
acreage without impacting some wetlands,” Allen Levin told us. They did not
want to shift their buildings around to keep the marshes intact, he said, “because
then the buildings would be right on top of each other, and we liked the
distance.”

Of the 11 acres of marsh on the site, the Levins asked the Corps for a permit
to dump fill into 6.5 acres—in other words, more than half.

Other federal agencies lined up to oppose the Levins’ plans. The U.S. Fish
and Wildlife Service strongly objected to wiping out the marshes. So did the
EPA and the National Marine Fisheries Service. They all said those wetlands
were too important to keeping Santa Rosa Sound clean and full of fish.
Beach residents opposed the Levins’ project too. It was too big, too gaudy,
too vulnerable to hurricanes, they said. It didn’t fit their low-profile neighborhood
and would cause all kinds of traffic problems, they warned. A residents’
group even sued the developers over whether they could alter the land. Shortly
after the Corps published a public notice in 1998 about Portofino’s 404 application,
the residents petitioned the Corps to hold a public hearing.

“We kept writing, we kept calling,” recalled beach resident Jean Kuttina, who
led the neighborhood opposition. “We had several letters of objection, we had
the lawsuit going. None of it did any good.”

In 1999 an environmental activist named Linda Young, a Panhandle native
who headed up the Florida chapter of the Clean Water Network, persuaded a
top Pentagon official in the Clinton Administration to tour the site. She was
hoping to persuade him to block the project. She recalls Deputy Assistant Secretary
of the Army Michael Davis walking around the beach as she talked to
him. Then, she said, Davis told her, “This project does not need to happen.”

“He was adamantly opposed to it,” Young recalled. “But then he went back
to D.C. A few weeks went by, and I called him. And he said, ‘I can’t stop this
project. These people are too powerful.’”

Davis remembers the tour and remembers thinking Portofino was a bad
idea. But he denies telling Young the well-connected Levins were too powerful
to stop. “I would’ve never said those words,” he insisted. Instead, he said,
he probably made some comment about the permitting process being too far
along for even the Pentagon to halt it.

Allen Levin told the Pensacola News Journal that the last thing he wanted
to leave behind was a legacy of environmental destruction.

“Somebody would have to be a total jerk to want to hurt the environment,”
he said. “It doesn’t make sense. Good developers won’t do that. I really believe
in this project we are putting more back in than we are taking out.”

The Levins promised to build new man-made wetlands to replace the ones
they were destroying. The mitigation would make it all okay, they said. However
the wildlife service predicted the beach wetlands were just too delicate to
be duplicated. That’s why the agency urged the Corps to say no to the permit.

“We told them it would be almost impossible to mitigate,” said Hildreth
Cooper, a Fish and Wildlife Service biologist. “We told them they should either
deny the permit or admit they can’t mitigate for it.”
Even trying to preserve some of the wetlands on the site wouldn’t work,
the wildlife agency predicted. Past attempts by beach developers to save a few
marshes while destroying others had cut off the flow of water, starving the
marshes that remained.

The Corps permit reviewer in the Pensacola office, a dutiful bureaucrat
named Lyal “Clif ” Payne, spent two years struggling to save the wetlands and
still make the developers happy. He didn’t want to approve the permit the way
it was, but he didn’t want to deny it either. So he kept suggesting changes that
might make the Levins’ project more palatable: Cut the number of buildings
back to three? Add even more mitigation? Nothing worked.

The developers weren’t too thrilled with even preserving some of the marsh
in its natural state, telling Payne at one point that the wetlands “would be managed
to remove the unsightly effect they have on (their) surroundings.”

Finally, frustrated with what he saw as Payne’s hemming and hawing, Allen
Levin had a heart-to-heart conversation with Payne’s bosses in Jacksonville.

“When it finally got to the very higher-ups, we were finally able to get some
relief,” he said.

Corps officials decided the agencies objecting to the project were off base,
and so in August 2000 they approved the permit. The Corps did order two
small marshes on the project site to be preserved. They allowed the rest to be
wiped out by the Levins’ condo project.

For mitigation, the Corps approved the creation of man-made wetlands on
county-owned land, along with a little something extra. In October 1995, when
Hurricane Opal made landfall at Pensacola Beach, the storm had knocked
down most of the big dunes and washed them across the island, leaving a thick
layer of sand across the property next door to Portofino. Requiring the Levins
to build their mitigation there would not only replace the natural marshes, the
Corps concluded. It would also result in all that sand being dug up and used to
rebuild the destroyed dunes, thus benefiting the whole island.

On the same day the Corps issued the permit, its top official in Florida, Col.
Joe Miller, notified all the residents who had asked for a public hearing that
there wouldn’t be one. The next day, Miller retired from the Army.

The Corps’ behavior left a bad taste in Kuttina’s mouth.

“They’re destructive people,” she said. “They’re not really going to save anything.”
By July 2004, when we toured the site with Linda Young, three of the towers
had been built and occupied and the other two were under construction. They
loomed above one-story houses next door. Sales were brisk, with some units
selling for more than $500,000.

But the man-made wetlands that the Levins had built looked nothing like
the lush natural ones they had wiped out. Most of the year they were bone dry,
until heavy rains hit. Then stagnant water puddled up two inches deep, the
surface broken every foot or so by a few strands of thin brown grass.

“There’s no way that mitigates for the adverse impacts that project is having,”
grumbled Young. She slipped off her shoes and splashed through the standing
water, then giggled and pointed out that the straggly sprigs of grass looked like
a bald man’s hair implants.

“It’s not exactly what you’d call thriving,” she said.

Two months later, something entirely predictable happened.

On September 16, 2004, Hurricane Ivan roared through the Panhandle. The
storm knocked down the dunes that Portofino had recreated, sweeping the
sand across the highway and deep into the lobby of the condos. The sand also
spread across the same areas of the beach that Opal had covered a decade
before. The thick layer of sand that Ivan dumped on the man-made marshes
smothered them. It was as if they had never been built.

Since the man-made wetlands were destroyed through a natural disaster,
the Corps would not make the Levins rebuild them, Payne told us. The failure
was not the Levins’ fault, he said. Actually, he explained, the Corps considered
it an act of God.

So to sum up: wetlands that were crucial to the health of Santa Rosa Sound
and its sea life were filled in and paved over because saving them didn’t fit the
plans of some powerful people. The federal agency that was supposed to save
them instead bent over backwards to aid their destruction. The developers’
attempt to make up for the damage failed, and their failure carried no consequences.

Yet in the Corps’ recordkeeping, the Portofino project was a success. There
was no net loss of wetlands.
_

What happened at Portofino illustrates both the myth of mitigation and its
consequences.

On paper, filled-in wetlands are being replaced and everything balances out.
In reality, they are swept aside by the works of man and nothing makes up for
them. Development races across the land with all the speed and power of a
hurricane hitting a beach, and the attempts to replace what it destroys usually
result in expensive failures.

“Mitigation,” Vic Anderson said with his usual bluntness, “is a fraud.”
In the case of Portofino, the loss of wetlands was on a small scale. Many
man-made wetlands are what are commonly called “postage stamp wetlands”—
small mitigation sites, often built in a new subdivision near the site where the
natural wetlands were destroyed. Those used to be the standard requirement
for 404 permits, but not any more.

“A lot of the postage-stamp wetlands have not proven viable,” veteran Corps
biologist Chuck Schnepel told us. Ultimately, he said, “they’re used as a playground,
or as dumping grounds. Or they become invaded by noxious or exotic
vegetation.” Usually the developer dumps the job of maintaining them on
a homeowners association, which has no idea that it’s responsible or what to
do about it. Eventually the man-made marsh becomes a cattail-choked mud
puddle.

When the panel from the National Research Council reviewed the sorry
state of mitigation in America, the panel declared in its 2001 report: “In many
cases this approach has resulted in the creation of open water areas as compensation
for loss of intermittently inundated or saturated wetlands. . . . The
stable-water pond has come to typify mitigation efforts in many parts of the
country.”

Such ponds—the same ones that Gale Norton insisted were being given a
bad rap—“will not replace the functions provided” by natural wetlands, the
NRC concluded. According to the flawed survey produced for Gale Norton’s
announcement, quite a few of those ponds started off as Florida mitigation
wetlands.

Those are the small mitigation projects. But now look what happens when
phosphate mining companies spend 30 years digging up thousands of acres of
Central Florida land to get the ingredients for fertilizer—and then try to make
up for such vast destruction.

First discovered by a Corps of Engineers captain in 1881, Florida’s phosphate
deposits today form the basis of an $85-billion industry that supplies threefourths
of the phosphate used in the United States.

To get at the underground deposits, the miners use a dragline with a bucket
the size of a truck. It scoops up the top 30 feet of earth and dumps it to the side
of the mine pit. Then the dragline scoops out the underlying section of earth,
which contains phosphate rocks mixed with clay and sand. The bucket dumps
this in a pit where high-pressure water guns create a slurry that can then be
pumped to a plant up to 10 miles away.

At the plant, the phosphate is separated from the sand and clay. The clay
slurry is pumped to a settling pond, and the phosphate is sent to a chemical
processing plant where it is processed for use in fertilizer and other products.
The sand is sent back to the mine site to fill in the hole after all the phosphate
is dug out.

A byproduct of the processing, called phosphogypsum, is slightly radioactive
so it cannot be disposed of easily. The only thing the miners can do with it
is stack it into mountainous piles next to the plant. Florida is such a flat state
that the 150-foot-tall “gyp stacks” are usually the highest point in the landscape
for miles around.

When phosphate miners destroy a wetland, they promise to replace it a few
decades later when they’re finished—a seemingly impossible task. After all, as
Florida wetlands expert Kevin Erwin told us, “You’re really talking about creating
wetlands after 60 to 80 feet of earth have been souffléed.”

The odds against success are higher than any gyp stack. Forty percent of the
land that’s left behind after mining is covered by the clay settling ponds. Within
five years a crust forms on top of the ponds, but the stuff under the crust remains
about as hard as a bowl of chocolate pudding. That means the old clay
settling areas are too unstable for building or for anything else. Meanwhile the
sand-filled pits drain too fast to hold water—a serious problem for any wouldbe
wetland.

The idea of requiring the miners to try to re-create wetlands seemed reasonable
in the late 1970s. Col. James W. R. Adams, the district engineer in Jacksonville
from 1978 to 1981, told us he had denied 404 permits for several phosphate
mining companies and was catching a lot of heat for it because phosphate was
viewed as important to maintaining the nation’s balance of trade.

“I had all kinds of people calling me saying, ‘Jim, be reasonable,’” Adams
recalled. So he proposed that, in exchange for getting their permits, the
phosphate miners restore the wetlands they destroyed. After all, they had the
money to do it right. “We worked out something very concrete, and we had
a historic and great agreement. Everybody was really happy about it,” Adams
said.

Since then, Florida phosphate companies have spent millions of dollars recreating
thousands of acres of wetlands wiped out by mining in Polk, Hillsborough,
and Manatee counties—or rather, attempting to re-create them. One
of the earliest phosphate mitigation sites in Florida was Hooker’s Prairie, the
mine site in Hillsborough County that Vic Anderson tried to save by suggesting
the miners get their phosphate from Morocco instead.

“It was like Payne’s Prairie near Gainesville—before W. R. Grace proposed
mining it,” Anderson told us. “It was a sawgrass prairie . . . I said, ‘We ought to
deny this permit.’ . . . Instead we decided to mitigate.”
Anderson urged his bosses at the Corps to monitor the mitigation closely,
in a rigorous scientific fashion, to see if it really worked. But Anderson’s boss,
John Adams (no relation to the colonel), told him the Corps had no time for
that.

“John Adams said no, you’ve got to process these permits,” Anderson said.
As a result, “we’re making these same mistakes 30 years hence.”

Anderson didn’t get the chance to check on what happened to Hooker’s
Prairie until years later. When he drove out there, what he found was not a
sawgrass prairie but something far less complex, a broom sedge marsh—and
thus not something that truly replaces what the miners destroyed.

The track record for phosphate mitigation hasn’t improved since Hooker’s
Prairie was mined. In 2002, in preparation for a lawsuit in which he was listed
as an expert witness, consultant Kevin Erwin toured several wetland mitigation
sites built by IMC-Agrico, then the largest phosphate company in the world (it
has since merged with another company, Cargill, to form an even larger company
called Mosaic). Erwin found that virtually all the wetlands the company
built were deep marshes, with standing water two to four feet deep.

“We didn’t see an acre, let alone the hundreds of thousands of acres, of pine
flatwoods that they had mined,” Erwin said.

Erwin said he asked his IMC tour guides to show him how the company had
recreated a wet prairie. That particular type is extremely difficult to rebuild, he
said, but the site the mining officials showed him surprised him. The vegetation
looked perfect, as if it had been growing there for decades. But then Erwin
looked a little closer and discovered that this wet prairie had no roots.

“What they’d done is gone out in a wet prairie before it was mined and used
a sod cutter,” Erwin said.

After slicing a swath of vegetation from one location, he said, the company
brought the swath out to its mitigation site and rolled it out like a section of
carpet. But the miners forgot something important.

“I took some borings and the water table was several feet below the surface,”
Erwin said. Since wetlands need water flowing through them to survive, these
were unlikely to last long.

Erwin’s testimony helped convince a judge to rule against IMC, which had
sought a permit to mine 2,300 acres in Manatee County. Mining the IMC property
would destroy 600 acres of wetlands that form the headwaters of Horse
Creek, one of the cleanest streams in the state. Horse Creek is also a major
tributary of the Peace River, which supplies drinking water for 100,000 people
and ultimately gushes into the state’s most productive estuary, Charlotte Harbor,
itself the center of a billion-dollar tourism and recreation industry.

Although IMC had promised to build new wetlands to replace the ones it
had destroyed, the judge found that those man-made wetlands would differ
too much from the ones there now. The mine site boasts a variety of wetlands,
some shallow, some deeper, but IMC planned to build just one big, deep wetland,
the judge found.

The company tried to show the judge that it has rebuilt other wetlands it
damaged by mining. But the evidence Erwin presented showed those mitigation
wetlands are not working as well as natural swamps, “despite the fact that
most of them have been in existence for more than 15 years,” the judge wrote
in his decision.
_

Although the phosphate miners had destroyed thousands of acres of wetlands,
they did it over three decades. According to John Hall and Bob Barron, year in
and year out the greatest destroyer of wetlands in Florida is the state itself—or
rather, one agency: the Department of Transportation, commonly known as
the DOT.

With a $7-billion budget, the DOT is Florida’s most powerful state agency.
Its nearly 7,500 employees oversee more than 12,000 miles of highways. It can
condemn property and force the owners to move. And every year it kills lots
of wetlands.

The DOT doesn’t just kill wetlands by paving them over. When a new road
is built, then-DOT Secretary Denver Stutler told us in 2005, “it’s going to open
up corridors for potential growth.” In other words, development follows the
roads, wiping out still more wetlands all along the route.

Stutler, who previously worked in a mitigation-related business, said destroying
wetlands for roads is the price Florida pays for continued growth.

“To me, transportation is the backbone of our economy,” Stutler told DOT
employees in a 2005 speech in Sarasota. “And it takes a strong economy to afford
the environmentalism we ascribe to here in Florida.”

We discovered that DOT officials did not keep track of all the wetlands
they destroyed each year. They were too busy building new roads. But agency
records we reviewed showed the DOT wiped out more than 1,000 acres of
swamps, bogs, and marshes between 1997 and 2005.

The DOT has to go through the same permitting process as the average
developer and thus has repeatedly tried to make up for the damage it does
through mitigation. DOT officials also didn’t know exactly how much of the
taxpayers’ money they had spent on mitigation, but agency records showed
it was more than $62 million during that same eight-year period. How much
more we simply could not determine, because the documentation did not
exist.

We spent months digging through boxes and boxes of DOT mitigation records,
squirreled away in places like Bartow and Palatka and Brooksville. We
pored over monitoring reports and interviewed DOT staffers and visited mitigation
sites. We found that whenever the DOT has built its own wetlands, they
failed, over and over.

“It’s not easy to re-create what God put here,” said Sue Moore, who oversees
the maintenance of dozens of the DOT-built wetlands in the Tampa Bay region.

Yet the DOT kept trying. One seven-acre wetland the DOT built off State
Road 44 in Crystal River in 1990 was planted with trees that an expert later
found were doomed by root problems. Water management officials warned the
DOT in 1992 that the site was too dry—in fact, the wetland was built on sand,
with the water table some four feet down. The DOT nevertheless planted 3,000
more trees. Still, no wetland. Finally, in 1998, the DOT abandoned the effort
and the site is now overgrown with upland vegetation.

Then there was the man-made wetland in Polk County that got too wet.
In 1994, the DOT planned to widen U.S. 17 where it crosses the Polk-Hardee
county line. Because that would destroy about 2.5 acres of wetlands adjacent to
the road, the DOT proposed as mitigation turning five acres of pasture by the
Peace River into new wetlands. A consultant hired by the state predicted that
the new, man-made wetland would be better than the destroyed one.

By July 1995, the DOT had planted cypress, sweetgum, red maple, and other
wetland trees, grasses, and shrubs. In the next three months, though, the river
overflowed, killing them. So the DOT replanted.

But in late 1997, a storm put the man-made wetland under six feet of water,
wiping out hundreds of the new trees. When consultants checked the site in
April 1998, they reported finding “no living vegetation.” The water was so deep
that they found fish jumping as if it were part of the river. When the DOT’s
consultants checked in again in August 2004, they found it underwater again.
Dead trees were sticking out of the water, they reported, “and many more were
detected below the water surface.”

So after spending 10 years and $242,000, the DOT had not only failed to
build a wetland that was superior to the one destroyed—it had failed to replace
the natural wetland at all. Rob Dwyer, the DOT employee who oversees the
Peace River mitigation area, calls the site “problematic.”
“I would think we would have to throw in the towel at some point,” he said,
though he wasn’t sure when that point would be reached.

This sort of thing happened all over the state. Down in the Keys, the DOT
spent $66,000 planting thousands of mangroves on a half-acre site in Whale
Harbor. They kept dying. The agency replanted the mangroves four times. It
even dug out the soil and put in fresh muck. Nothing worked.

At one point, the DOT dropped the ball for a while, failing to plant more
mangroves or report on its progress. The Florida Department of Environmental
Protection (which had replaced the old DER) didn’t notice. Then, in 1995, a
DOT employee reviewing the files discovered the problem and asked the DEP
what to do.

The response: forget it. The regulators asked, “If FDEP isn’t asking for it to
be fixed, why is FDOT pursuing it?”

Yet the DOT persisted for another four years, spending even more taxpayer
dollars on planting more mangroves. In 1999, after 11 years of trying, the DOT
finally gave up and declared Whale Harbor a failure.

We found numerous examples of DOT mitigation failures, but our favorite
by far was the one connected to the bridge over the Withlacoochee River in
Citrus County in 1990. The new State Road 44 bridge destroyed less than an
acre of wetlands. The DOT’s efforts to build a new wetland to replace it ran into
repeated problems. Then, after nine years of trying, it began at last to flourish.
That’s when the DOT widened the road, destroying the man-made wetland
it had worked so hard to create.

A DOT employee asked if the agency needed to build new wetlands to
replace the man-made wetlands that replaced the natural wetland—in other
words, should they mitigate for the mitigation?

In response, a Southwest Florida Water Management District wetlands
expert named Mark Brown fired off an e-mail that said: “STOP THE MADNESS!!!”
_

That mitigation fails should come as no surprise to anyone involved in wetlands
regulation. The failures have been obvious to wetland scientists for 30
years.

The practice of requiring mitigation for wetland impacts began in the late
1970s. At the time, it seemed to federal regulators like a way to hold the destroyers
of the environment to a higher standard, forcing them to give something
back to nature in exchange for getting their permits.

By 1981, the Corps was requiring 5,000 acres of new wetlands to be created
or old wetlands to be restored nationwide—though that fell far short of the
50,000 acres of wetlands the Corps allowed to be wiped out. But soon scientists
were questioning whether mitigation could really replace what was being
destroyed.

In 1987, when the National Wetlands Policy Forum was coming up with the
no-net-loss policy, wetland experts handed the committee members briefing
papers on various issues they ought to consider. Among the briefing papers
was a prescient warning against relying too heavily on mitigation to save the
day.

The warning, written by Jon Kusler, chairman of the Association of State
Wetland Managers, noted the need for more research but pointed out that the
limited surveys of mitigation wetlands done so far had found that that “about
half of the projects failed in one or more respects.”

In fact, Kusler wrote, “wetlands scientists seem to agree that no wetland can
be duplicated or replicated exactly. Most natural systems are far too complex,
and represent thousands of years of geologic and hydrologic processes with
resulting accumulations of soil profiles and ecologic niches of plant and animal
species.”

Kusler told us that as early as 1977 wetland experts from around the nation
were aware that man-made wetlands often failed. “Even back then, people were
saying hey, some of this works, some doesn’t,” he said.

The members of the wetlands forum saw Kusler’s report and knew what it
meant, he said. But “remember, there were lots of people on there, homebuilders
and everybody else was on that forum,” he explained. “The feeling was:
better to get half a pie than no pie at all.”

In other words, they felt it would be better to get lots of mitigation, even
if much of it fails, than to get little or none. The reason, Kusler explained, is
simple: while scientists may know that reproducing natural wetlands is virtually
impossible, and thus wiping them out causes damage that can’t be repaired,
“it’s one thing to know, and another to have a political will.” And there was no
political will for declaring all wetlands off-limits.

So the forum’s final report still listed mitigation as a way for the nation
to hit its no-net-loss target, contending that “achieving the goal will require
increased compensation for wetlands alterations through a higher rate of restoration
of former and degraded wetlands and, where feasible, creation of new
wetlands.”

Somehow, though, that call for restoration over creation got lost as the proposal
was turned into a policy.

In 1990, when the no-net-loss policy was adopted by the Corps and EPA,
the two agencies agreed to follow a three-step process with each 404 permit application:
First, try to avoid building anything in wetlands. Second, if wetlands
couldn’t be avoided, try to minimize the impact on them as much as possible.

Third, if the wetlands couldn’t be avoided and the impact was as minimal as
possible, then and only then could the Corps consider requiring mitigation for
the damage.

Today, though, mitigation has gone beyond merely making up for lost wetlands.
Now it’s used as a justification for wiping out natural wetlands. Mitigation
has jumped to the head of the line for the state agencies issuing wetland
permits—and that limits what the Corps can do, Corps biologist Steven Brooker
told us.

“They’ve stopped doing avoidance,” he said. “Now they’re hardly doing
minimization. They’re going straight to mitigation.” Developers submit plans
with “ridiculous impacts,” he said, and instead of denying the permits “you just
throw a lot of mitigation at it.”

A prime example of that is a highway project in the Keys known as the
18-Mile Stretch. The two-lane road runs from the southern Everglades to Key
Largo, and there have been car crashes at night along its more isolated stretches.
In 1988 the DOT proposed widening the road to four lanes, destroying 164
acres of wetlands. It said widening the road would ease hurricane evacuation,
improve safety, and accommodate growth.

But Keys residents feared it also could pave the way for a population boom
in the fragile Keys. Brooker was the permit reviewer at the time, and he passed
along those concerns to Col. Terry Rice, then in charge of the Corps in Florida.

“I was half a week in the Keys with Col. Rice—he saw what was going on.
I had his support after that,” Brooker said. “It would’ve been a better highway,
but the secondary and cumulative impacts—a term everybody was afraid of
then—were really huge.”

Rice said he kept asking state officials, “What are you doing to make sure
this is not going to inspire more growth in the Keys that’s going to outrun your
hurricane evacuation plans?” He never got a satisfactory answer, he said. So
Rice told state officials he was going to deny their federal wetlands permit.
Instead the DOT withdrew its application and revamped its plans.

By then, though, the DOT already had begun building 385 acres of wetlands
to make up for the damage it expected to cause by widening the road. In 1995 it
filled in more than 6 miles of an old canal, making it more like the Everglades,
and tried to create 12 tree islands like the ones dotting the River of Grass. The
DOT also filled in an area that had been illegally dredged and planted thousands
of mangroves there.

In 2003 the DOT scaled back the highway project and asked for a new 404
permit—and now Brooker was no longer the permit reviewer. Instead of four
lanes, the DOT application called for a wider paved shoulder and a threefoot
concrete barrier between the two lanes. But the new highway plan
still called for destroying 103 acres of wetlands. So DOT promised even more
mitigation to make up for the damage. It pledged to build another 41 acres of
wetlands, although some of that would be at the U.S. Navy base in Key West,
100 miles away.

The Corps approved the permit in 2004, even though Corps officials wrote
that the project “does not increase hurricane evacuation.” Although Keys activists
had suggested several ways to improve traffic safety while avoiding destroying
so many wetlands, the Corps did not even consider those alternatives,
noting only that the agency “typically defers to the FDOT . . . in highway safety
issues.”

In the official record of decision, the Corps wrote that its staff was particularly
impressed with the DOT’s mitigation, which it said would “outweigh the
minimal detrimental impacts” of destroying wetlands in the Everglades and
the Keys. The mitigation became the justification for issuing the permit.

However, when we looked at the DOT’s monitoring reports on the mitigation
it had already built, here’s what we found: after struggling for a decade and
spending more than $1 million of the taxpayers’ money, the DOT’s mitigation
was a failure any way you looked at it.

“So often the best-laid plans just don’t work,” said John Palenchar of the
DOT’s Miami office, who oversaw the mitigation projects.

Many of the mangroves the DOT planted a decade ago are still only two
feet high. Mature mangroves should be 30 feet high. These were so short, Vic
Anderson called them “bonsai mangroves.” They probably will never
get any bigger. Because they were planted in fill dirt instead of natural muck,
“you get a dwarf-type mangrove,” Palenchar said. “They don’t die, but they
don’t really flourish.”

As for the dozen tree islands the DOT built—well, the trees aren’t there
anymore. Palenchar said the tree islands weren’t built high enough to keep the
trees out of the water: “They were too soggy and most of them died.”
_

The problem of mitigation failure might not be so bad if someone were requiring
developers, miners, and roadbuilders to start over and do things right.

“We only care about it working if compliance inspections are at such a level
that if people screw up, they get caught,” said Roy “Robin” Lewis, an environmental consultant in Florida for 30 years. “That’s not taking place. The regulators
need to be on everybody’s tail. Instead, developers hire the cheapest landscaper
they can find to do their mitigation, and then the site goes bad. That
happens every time.”

As a result, Lewis said, “there isn’t any significant incentive to make sure the
process works.”

This is not a new problem. In 1988, the investigative arm of Congress, the
General Accounting Office, issued a report pointing out that the Corps was
placing little emphasis on making sure mitigation actually occurred. In 1993,
the GAO pointed it out again.

But the Corps’ attitude remained the same: we’re too busy cranking out
new permits. That’s particularly understandable in Florida, where the permit
reviewers are constantly on the verge of drowning in permit applications, Rice
told us.

“People are calling and writing every day: ‘Where’s my permit?’ So that’s
what you focus on,” Rice told us. “Meanwhile enforcement is out of sight, out
of mind, unless somebody brings something to your attention.”

That’s fine with the Corps’ leaders. In 1999, Maj. Gen. Russell Furman sent
a memo to all Corps commanders outlining what their priorities should be.
He told them to think of a dividing line separating their most pressing duties
from the ones that could be postponed indefinitely. Above the line: making
“timely” decisions on permit applications, he said. Below the line—to be done
after everything else—he listed compliance inspections for mitigation.

Two years later the National Research Council panel wrote that “the cumulative
effect of these policy decisions indicates that . . . issuing permits takes
priority over careful evaluation of mitigation projects.”

When the National Research Council report came out in 2001, the Corps
trumpeted its intention to mend its ways and make mitigation meaningful.
Corps leaders joined with the EPA and other federal agencies to prepare a
“Mitigation Action Plan” that would fix everything the report had pointed out
as wrong.

But four years later, in 2005, the GAO issued a new report that said the same
old attitude still prevailed.

“The Corps’ Section 404 program is crucial to the nation’s efforts to protect
wetlands and achieve the national goal of no net loss,” GAO investigators
wrote. “Although Corps officials acknowledge that compensatory mitigation
is a key component of this program, 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
permit applications. . . . The Corps continues to provide limited oversight
of compensatory mitigation, largely relying on the good faith of permittees to
comply with compensatory mitigation requirements.”

Unless the Corps starts doing its job, the GAO investigators wrote, “it . . . will
be unable to ensure that the section 404 program is contributing to the national
goal of no net loss of wetlands.”
_

Think about the cost of all this failure, not just in the loss of wetlands and the
broken promises to the voters, but in actual dollars.

Trying to create new mangrove and tidal wetlands costs about $50,000 an
acre, Lewis estimated when we talked to him in 2005. Trying to create freshwater
wetlands costs a little more “because you’re dealing with water control
structures,” he said, so figure $75,000 to $100,000 an acre for those.

Now add up all the acres of mitigation built all across Florida—by the DOT,
by miners, by developers.

“You’re in the tens of millions of dollars,” Lewis pointed out. “How much
tax money goes into attempts to do this stuff that doesn’t work? And when it’s
private developers doing it, that winds up affecting the cost of a house.”

But don’t count on any effort by the government to stop relying on mitigation
to prop up the politicians’ promise of no net loss.

In 2005, we talked to James Connaughton, who as chairman of the White
House Council on Environmental Quality is President George W. Bush’s top
environmental adviser. We pointed out all the mitigation failures throughout
Florida, and Connaughton acknowledged that “sometimes some of these projects
don’t work out the way we think they should.”

But mitigation remains a crucial part of the permitting process, he said,
because it offers a way to balance wetlands protection with continued development.

“People need homes to live in, hospitals to go to when they’re sick, and
stores to buy food,” Connaughton told us. “As long as we support a growing
population in America, there will be a need for land. We need to minimize the
impact to valuable wetlands, but where we do have impact, mitigation is the
answer.”

Yet it’s hard to see it that way when you’ve visited the Wal-Mart store in
Oldsmar, a small town between Tampa and Clearwater.

In 1999, Wal-Mart proposed building a supercenter on 28 acres near the
aptly named Cypress Lakes subdivision development in Oldsmar. Smack in the
middle of the site was a five-acre cypress dome that Wal-Mart said had to go.
As mitigation, Wal-Mart dug out holes around its parking lot to create three
new wetlands. One was built on a site that, before Wal-Mart arrived, held some
dumpy apartment buildings.

To show its environmental sensitivity, the retail giant didn’t just kill off all
the plants in the cypress dome. Instead, the company transplanted the vegetation
from the natural wetland it was destroying, even 70-foot-tall cypress trees.
Wal- Mart’s environmental consultant, Kimley-Horn and Associates, promised
the mitigation sites would soon become a “mini-ecosystem” with a “dense
canopy.” As further mitigation, Wal-Mart also promised to preserve 26 acres
of wetlands north of the store by donating them to the public.

The Corps approved the permit in 2000. Five years later, we toured the Wal-
Mart mitigation site with a former state wetlands expert named Sydney Bacchus
who does freelance work for environmental groups. As we slogged through the
thigh-deep water, we found that many of the transplanted trees were dead. Bacchus
pointed out a lot more were showing signs of severe stress.

Every rainstorm sends polluted water from the parking lot flowing into the
largest man-made wetland, which doubles as a retention pond. Cypress can
tolerate standing in a few inches of water with an occasionally deeper inundation,
but Wal-Mart’s man-made wetlands always hold three feet or more of
water. In other words, these wetland trees were too wet. They were drowning.

To make matters worse, Bacchus pointed out, the transplanting process severed
the tangle of roots that bind one cypress to the trees surrounding it. When
a high wind hits the dying trees, they topple easily, their root balls popping out
of the muck like a giant divot. At one point we scrambled up on top of one such
root ball protruding from the water. It was as big as a retail executive’s desk.

So many transplanted trees died in one area that biologists at the Southwest
Florida Water Management District, after reading the company’s monitoring
reports, recommended Wal-Mart replace them with new plantings, in the
hopes the new trees might do better than the transplants.

And what of the wetland that Wal-Mart was supposed to donate? Instead,
the company tried to sell it for development.

The Cypress Lakes Homeowners Association found out about the sale and
sent a letter to the Corps protesting that Wal-Mart was violating its permit.
Only then did the Corps take action, forcing Wal-Mart to give the undeveloped
wetland to Pinellas County.

Yet in 2005, Wal-Mart trumpeted the news that its Oldsmar mitigation work
had won an Award of Excellence from the National Arbor Day Foundation.
When we looked at the company’s submittal for the award, we found that
Wal-Mart had inflated the number of trees that survived the transplant. National
Arbor Day Foundation Vice President Dan Lambe said the contest judges—
like the Corps—simply took Wal-Mart’s word for how well its mitigation
worked.

While troubled by the news of the falsified application, he said the foundation
could not give the award to anyone else for one simple reason: Wal-Mart
was the only entry.

Regardless of whether a mitigation project like Wal-Mart’s is successful, the
accounting on wetlands creation is simple. There are acres to measure, costs to
total up. The concept is easy to grasp: you wipe out a few acres here; you build
a few acres there.

But as creation’s failures became glaringly obvious, regulatory agencies
turned to other forms of mitigation.

And then the accounting got downright creative.

Tags: Politics & Law, Environment, Government/Politics & Law

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