Just Say Yes

Adding to the Corps' inclination to always say "yes" is the tremendous demand for permits. Some Corps employees are working on more than 200 applications at a time. Schnepel jokes that in 30 years with the Corps, he's never seen an empty desk. Because the permit reviewers are so, well, swamped, they seldom leave the office to see the wetlands they're approving for destruction. They trust what the developers tell them.

"We rely on verbal descriptions, aerials and photographs," Schnepel says. "We don't have time to go out and do three-hour inspections."

If Corps employees had more time to review permits, they would probably say "no" more often, Hall says. Denying a permit can take months, requiring lots of paperwork, a legal opinion and a decision by the colonel in charge of the Florida district. As a result, many projects are approved that probably shouldn't be.

"It's best to take the best compromise you can get and move on to the next one," says Brooker. "If you put in the effort it takes to deny every one you needed to, we'd be buried."

Schnepel said the only real power the Corps has is to delay saying "yes" long enough to persuade a developer to make changes in a project. But delay things too much, and developers complain to Congress. Because the Corps depends on Congress for funding, a call or letter from a senator or congressman about a particular project sends a strong message: Approve the permit, or face the consequences.

The Corps' Jacksonville office gets so many congres­sional calls, letters and e-mails its staff has to use a computer database to keep track. Party affiliation makes no difference-former Rep. Porter Goss, R-Sanibel, and retired Sen. Bob Graham, D-Miami Lakes, both have written letters on behalf of developers and miners.

Goss, who now runs the Central Intelligence Agency, couldn't be reached for comment. But Graham contends his letters on behalf of such projects as the Naples Reserve golf-course development and the Florida Rock limestone mine near Fort Myers didn't really carry much weight.

"I think the agencies are experienced in what that means-not to change a decision but to request them to review it on a professional and timely basis," he says.

Yet Corps employees say congressional inquiries have a big impact. Even a letter asking questions signals an applicant has political clout.

"It puts the Corps on the spot," says retired Col. Terry Rice, who oversaw the Corps' Florida operations in the late 1990s. "It results in a quick decision, but not necessarily in a good decision."

Range, the former congressional aide who helped write the Clean Water Act, has a home on Marco Island. When he looks around Southwest Florida, he is not thrilled with how the Corps is carrying out the law protecting wetlands.

"There ain't gonna be nothing but golf courses down there if they keep it up," he says.

There was a time when the southwest Florida landscape was predominantly wet. After every rainfall, a series of cypress sloughs carried water slowly down to the glittering waters of Estero Bay, the state's first aquatic preserve. Much of the rainfall soaked into the aquifer along the way.

But over the decades, developers ditched and drained and filled the wetlands, redirecting or even blocking the flow of water and meanwhile destroying habitat for endangered species such as Florida panthers and wood storks. Nature was an opponent to be overcome.

Once, with help from the Corps, nature won a round. In 1974, Deltona Corp., the developer of Marco Island, sought permits to destroy more than 2,000 acres of wetlands. The Jacksonville office said "no," explaining that there were less-destructive places to build houses: "The basic purpose of this development is housing, and housing, in order to fulfill its basic purpose, generally does not have to be located in a water resource."

Deltona, which had already pre-sold lots to thousands of buyers and now would have to refund millions of dollars, fought the decision all the way to the U.S. Supreme Court-but lost. Deltona president Frank Mackle called it "the biggest miscarriage of justice in my lifetime," but the Marco Island decision became an important precedent for all future Corps permitting decisions.

Nearly every wetlands permit application is for something that does not need to be built in a wetland to fulfill its basic purpose-a gated subdivision, a shopping mall, an airport. To get a permit, a developer must show that there is no real alternative to building on this swampy spot. The Corps ought to say "no" to most of those applications, says Anderson, the retired Corps permit reviewer.

Instead it bends over backward to find a way to say "yes." It does this by manipulating the analysis of alternative sites. This is the way it works, according to Hall:

"Most people would say a residential golf community doesn't have to be located in wetlands. So we work with the applicant on the purpose: 'A middle-income residential development built around a nine-hole or 18-hole championship golf course.' Also they're targeting it for a particular demographic, right? I want to define the project purpose [to include that] and say 'in the greater metropolitan Jacksonville area.'"

Tailoring the project purpose so tightly leaves no alternative to allowing the destruction of the wetlands at the site the applicant picked.

Kowtowing to permit applicants that way shows that Corps officials don't understand the requirements of the Clean Water Act, says Joy Zedler, a University of Wisconsin professor who chaired a National Academy of Sciences panel that spent two years studying the Corps' regulatory program.

"Their job is to regulate," Zedler says, "not to simply rubber-stamp."

For 15 years, whenever a president has needed an applause line for his environmental policies, he has pledged to protect wetlands. George Bush, Bill Clinton and George W. Bush all promised that the government would not allow developers to wipe out wetlands without replacing them, a policy called "no net loss." During a campaign stop in Naples last year, President Bush reiterated the no-net-loss pledge.

In keeping with that presidential policy, to make up for the destruction in Florida, the Corps has often required developers to create manmade wetlands, a process called "mitigation." But the Corps doesn't check back on whether the mitigation wetlands are working, or even if they have been built.

Still, the Pentagon civilian who oversees the Corps is convinced that no net loss has been achieved in Florida.

He just can't prove it.

"The flaw is we cannot demonstrate or document that we have achieved it," says Deputy Assistant Secretary of the Army John Paul Woodley Jr.

The staff is just too busy, Woodley explains. "Right now our guys are working so hard on permits that it's very challenging for them to find time to go back, reach back in the file and grab something from the last two years of files and see whether that is working," he says.

Actually, Anderson says, "mitigation is a fraud." Man­made wetlands frequently fail, a fact that Corps officials are well aware of. "Virtually every study finds significant problems with the execution of wetland mitigation projects," says Ann Redmond, who through the 1990s served as the state's top mitigation expert. "They're trying to create a wetland where Mother Nature never intended one to be."

So now the Corps often lets developers take credit for not developing some wetlands as mitigation for wiping out others, even though that means counting existing wetland acreage as if it were new. As Lee and Collier counties boomed in the 1990s, the Corps issued permits to erase nearly 4,000 acres of wetlands in the western Everglades and ordered the creation of less than 500 acres, resulting in huge acreage losses.

Corps officials contend they don't count mitigation by acres, though. They say they use a complex formula to measure the value of the wetlands being destroyed versus the ones created. Sometimes they conclude that the mitigation wetlands are more valuable than the natural ones.

"When we mitigate, we calculate the quality of the wetlands as a part of the permit," says Col. Robert Carpenter, who is now in charge of the Jacksonville office.

But records show that if the formula produces an answer that dictates turning down a permit, the Corps tosses out the formula and issues the permit anyway. That's because those much-vaunted calculations aren't really reliable, says Hall. Permitting decisions, he explains, are based more on intuition than calculation. "You're trying to come up with some kind of number that you hope translates your gut into a measurable value system," he says.