Just Say Yes

In 1976, an obscure federal agency launched a project of almost breathtaking ambition: Map every fetid marsh and bug-infested swamp in the United States. The leaders of the National Wetlands Inventory thought they might be done in a couple of years. Three decades later, they're still working on it.

One of the first states they mapped completely was Florida-an impressive accomplishment considering that, at the time, Florida had about 11 million acres of wetlands, more than any state except Alaska. Yet the National Wetlands Inventory biologists painstakingly documented all of it, from the dark tupelo swamps of the Panhandle to the sun-drenched tidal flats of the Keys.

The Florida map was done in the mid-1980s. Despite the state's explosive growth since then, that official federal map of Florida's wetlands had remained unchanged until two years ago, when the inventory's biologists checked back in on Charlotte, Lee and Collier counties.

The biologists were stunned. Everywhere they looked, wetlands they had mapped 20 years ago were gone, wiped out by shopping centers, roads and schools. Cypress swamps had been replaced by expensive homes perched atop mounds of fill dirt. So many trucks were bringing in more dirt to fill even more wetlands that it was like watching a particularly depressing parade.

"We'd pull over to do soil borings," says biologist Dave Lindsey, "and we were about getting run over by dump trucks."

This is what déjà vu looks like: On the eastern side of the Everglades, state and federal agencies are spending billions of taxpayer dollars to repair the damage done to the River of Grass by decades of exploitation. Yet on the Everglades' western side, those same agencies are allowing it to happen all over again.

"Haven't we learned our lessons?" the top Environmental Protection Agency official in South Florida asked in an

e-mail to another federal official. "Apparently not."

The federal agency in charge of saving the Everglades is also the one in charge of safeguarding the nation's wetlands: the U.S. Army Corps of Engineers. The Corps' Florida office is headquartered in a Jacksonville office building with a sweeping view of the St. Johns River, where the chairs, computers and window blinds all come in shades of gray. There, and in nearly a dozen smaller offices spread from Pensacola to Marathon, the 100 employees of the Corps' regulatory division spend their days reviewing requests to destroy Florida's wetlands.

They say "yes" almost every time. The Corps approves more wetland destruction permits in Florida than anywhere else in the country. Between 1999 and 2003, they approved more than 12,000 permits to destroy wetlands in Florida.

They said "no" to just one.

Environmental and civic activists complain that the Corps should say "no" more often than that. "They're flat-out breaking the law," contends Ann Hauck, an activist from Bonita Springs.

For 15 years the Corps' permitting program in Florida was run by John Hall, a crusty paraplegic with a dry wit and a degree in biology. Hall, who retired in January, contends counting permit denials is a poor measure of his agency's effectiveness. He encourages critics to look at how often his staff has persuaded developers to modify their projects to spare some wetlands.

But by that standard, the Corps' Florida operation still falls short. Nationwide, the Corps says it saved 20 percent of wetlands targeted for destruction. In Florida in 2003, the Corps saved less than 6 percent. In other words, of the 3,282 acres of wetlands proposed for destruction, Corps officials said "yes" to wiping out all but 185 acres.

Lee and Collier's wetlands have been particularly hard hit. In the last decade "the Corps issued more permits in Southwest Florida than in the rest of the Southeast combined," says John Hankinson, who was the EPA's regional administrator in Atlanta through the 1990s. "It was just a phenomenal number of applications."

Current and former Corps employees say their agency has failed to do its job in Florida.

"We're not protecting the environment," says Vic Anderson, a biologist who just retired after 30 years of reviewing permits for the Corps. "It's a make-believe program."

The government contends the destroyed wetlands were replaced, but many contend the claims are based on creative accounting and questionable science.

"It's a huge scam," says Steve Brooker, a biologist who has reviewed permits for the Corps for 15 years. While the Corps pays lip service to protecting wetlands, Brooker says, really all it's doing is "documenting the destruction of the aquatic environment."

The Corps not only issues more permits for wetlands destruction in Florida than anywhere else in the country, it also allows the destruction of larger swaths of wetlands. Corps officials in other states are astonished when they hear that in Florida the Corps is issuing permits for thousands of acres of wetlands destruction, says Charles "Chuck" Schnepel, a jovial, gray-haired veteran Corps employee who now runs the Tampa branch office overseeing the Southwest Florida region.

When they ask how anyone could say "yes" to wiping out so many acres, Schnepel explains: "The regulatory program doesn't say we're out here to deny permits. It says we're out here to process them."

Corps leaders insist that their Florida staff is doing nothing wrong.

"Our role is not to be an impediment to the development process," says Lt. Gen. Carl Strock, who as chief of engineers is in charge of Corps operations worldwide.

Yet even though they almost always get what they want, developers aren't happy with the Corps, either. They have complained all the way to the Pentagon that permit reviewers in Florida take way too long to say "yes."

"We hear home builders say, 'I have $2 million wrapped up in this piece of property and I'm waiting a year on the Corps,'" says Chandler Morse of the National Association of Home Builders.

Actually, getting government permission to destroy a wetland is supposed to be difficult. Once considered noxious obstacles to progress, wetlands are now recognized as valuable parts of the natural landscape. They prevent flooding, filter out pollution, recharge the underground aquifer and provide habitat for a host of species.

Their importance was underlined when Hurricane Katrina hit the Gulf Coast this September. Scientists pointed out that if Louisiana hadn't lost so many coastal wetlands in recent years, the storm surge from Katrina might not have reached New Orleans, much less broken through the levees and flooded

the city.

Anyone who wants to wipe out a wetland needs permits from the state and the Corps. The state certifies that destroying this particular swamp won't lead to water pollution problems, and the Corps then must decide whether the project is "in the public interest" and will result in "no significant environmental impact."

Florida developers would rather have the state issue all wetland permits, because state law requires state agencies to make a decision within 90 days or the permit is automatically issued. The Corps faces no such deadline, and thus some permits-particularly for projects in Southwest Florida that wipe out habitat for endangered species such as the Florida panther-may take a year or more to process.

Developers have mounted a behind-the-scenes lobbying campaign to have the state take over nearly half of the Corps' permitting responsibilities, under a bill that was sponsored by state Rep. Trudi Williams, R-Fort Myers, but mostly written by Florida Home Builders Association lobbyist Frank Matthews.

So far, the Corps has not agreed to the transfer of power. But after developers held a pair of closed-door meetings with the top Pentagon official overseeing the Corps-meetings facilitated by Rep. Ander Crenshaw, R-Jacksonville-

Corps officials in Florida are now considering it.

The Corps' permitting power comes from the Clean Water Act, which passed Congress in 1972. "The bottom line was to try to stem what the scientific evidence of the day showed was a problem: a dramatic reduction in wetlands habitat around the nation," explains Jim Range, who helped write the law as chief counsel for Republican Sen. Howard Baker of Tennessee.

The trouble with the Clean Water Act, say critics, is that Congress handed the job of issuing permits to an agency that, since its inception two centuries ago, has built its reputation on draining swamps and altering the flow of waterways from the Mississippi River to the Everglades.

At first, despite its history, the Corps did a fair job of protecting wetlands, according to a congressional report by the General Accounting Office. But around the start of the Reagan Administration, the GAO found, Corps officials came to regard permit applicants as their clients and wetland permits as products to be pushed along on a factory line. Even today, along with every permit, the Corps' Jacksonville office sends out a "customer satisfaction survey."

That's because the Corps "does not feel it represents the general public or the resources it has been given the duty to protect," Anderson says. In internal memos from the mid-1980s, Corps officials state that their policy is "when in doubt, err in favor of the applicant not the environment."

And in a 1988 memo sent out to Florida Corps employees, John Adams, Hall's predecessor, wrote that "it is Corps policy: 'When in doubt, do not regulate.'"

The Corps training manual for Florida permit reviewers even says that projects that wipe out wetlands are presumed to be in the public interest. "Thus to deny a permit," the manual says, ". the burden of proof is on the Corps to show a proposal is contrary to the public interest."

But three different experts on wetlands law-including a former Corps attorney, Royal Gardner, now a dean at Stetson University's College of Law-say the manual has it backward. They point out that the Corps' regulations say that "most wetlands constitute a productive and valuable public resource, the unnecessary alteration or destruction of which should be discouraged as contrary to the public interest."

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.

James Connaughton, President George W. Bush's top environmental adviser, acknowledges that the mitigation the Corps is requiring isn't a perfect balance to what's being destroyed.

"Sometimes some of these projects don't work out the way we think they should," he says.

Sure, Florida has lost thousands of acres of wetlands, he says, but spending billions on restoring the Everglades "will be a key component" in offsetting those statewide losses. In the meantime, he says, allowing mitigation, even when it's flawed, balances environmental protection with much-needed development.

"People need homes to live in, hospitals to go to when they're sick and stores to buy food," Connaughton says. "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."

Anderson, though, says mitigation is merely a way to make it appear the Corps is achieving no net loss when it's not: "It's all just a big shell game. Who's kidding whom? The only conclusion you can draw is we're losing it on purpose."

The pace of wetlands destruction in Southwest Florida picked up speed in the 1990s as the population boomed. Bonita Springs led the state in new arrivals with household incomes of $150,000 and above -business owners, entrepreneurs and high-powered executives from major companies such as General Electric and Kodak, all ready to plunk down big bucks on sumptuous mansions next to the fairway.

"Wetlands get dried up with money," says Bonita Springs native Danny Curran, a shrimper.

Upscale subdivisions-several of them built by a developer who later pleaded no contest to bribing county commissioners-helped to choke off the natural sloughs around Bonita Springs. When heavy rains hit the area in the fall of 1995, widespread flooding forced the evacuation of more than 1,000 people.

"Once it's full, it's gotta go somewhere," says Curran, who remembers water rolling over his truck's hood when he drove to town. "It lasted for two or three months."

To ensure the flooding doesn't happen again, the Corps and the South Florida Water Management District-the same agencies that approved all the development in wetlands-are now spending $30 million buying up homes and moving residents out of the area. Then the houses are torn down so the land can be converted back to swamps. Among the houses bought by the government was Curran's, even though it did not flood.

The same rains that flooded Bonita Springs in 1995 put the site of the state's newest university under three feet of water, delaying the start of construction. Wags dubbed the soggy 760-acre site near Fort Myers "Mildew U." A spokesman for Florida Gulf Coast University insists that the flooding was not a sign that the state had picked the wrong place to build the college. Still, he concedes, "there's an extensive amount of dirt that needs to be brought in as fill."

The FGCU site was originally supposed to be part of a conservation zone. It was prime habitat for Florida panthers. But politically powerful citrus heir Ben Hill Griffin III, whose company planned to sell or develop the 16 square miles surrounding it, was offering to donate the land. As a result, the Corps was under serious pressure to approve a permit for wiping out 78 acres of wetlands on the site.

At the time, Col. Rice ran the Corps in Florida. One day Rice was on an airboat in the Everglades when his cell phone rang. The caller, Rice recalls, began "cussing me out" for taking too long to approve the FGCU permit. The caller: Connie Mack, then Florida's Republican senator from Fort Myers.

"He used some terms over the telephone that weren't very flattering," Rice says. "It wasn't a pleasant conversation." Mack says he doesn't remember the call but doesn't dispute it. Rice approved the permit to put FGCU on Griffin's land in 1995.

The EPA has the power to veto Corps wetland permits. But the last time the EPA vetoed a Florida permit was 1988. As usual, despite misgivings, the EPA went along with the permit for FGCU. The man who made that decision now regrets it. "That's one we should have vetoed," says Hankinson, the former EPA regional administrator.

Since then, as critics predicted, development has boomed all around the campus, bringing in everything from the region's largest shopping mall to several new golf-course subdivisions, thus wiping out even more wetlands and destroying even more panther habitat.

One of the more controversial developments has proposed a plan to get rid of the flooding problems. The Mirasol development wants to build on 1,766 acres-1,500 of them wetlands. The developers have proposed building a ditch three miles long, four feet deep and 200 feet wide that would drain not only their own land but also the land for several other proposed developments.

But experts fear the so-called "Mirasol flow-way" would also drain nearby Corkscrew Swamp Sanctuary, an 11,000-acre preserve owned by Audubon of Florida. EPA official Bruce Boler also questioned why it would destroy 30 acres of wetlands preserved as compensation for an earlier development in the same area. "I said, 'How is this the least environmentally damaging site?'" he recalls.

A coalition of environmental groups opposes the project. Even Hall, in a private e-mail to Bonita Springs civic activist Ann Hauck, said it ought to be stopped.

But Mirasol has some important friends: former Congressman Goss and Sen. Bill Nelson, a Democrat. Staffers for both Goss and Nelson called the EPA's southeast administrator about the project and offered to set up a meeting with the developers. Nelson's staff also arranged a meeting in Nelson's Orlando office-hundreds of miles from the development-between the developer and senior wildlife agency officials to get them to drop their objections.

Mirasol has its state permit. But as of this summer, the Corps had not yet made a decision.

Southwest florida was supposed to be different-the one place in the state where three federal agencies became so alarmed at the loss of wetlands that they tried to stop it.

Rice contends that he was right to approve the FGCU permit because it set the stage for his next step: At Hankinson's suggestion, he ordered a full-fledged study of the environmental impact of the Corps' wetland permitting decisions in Southwest Florida. Launched in 1997, the study was finally released two years later. Then it sat for another two years before one of Rice's successors officially implemented its findings.

In the meantime, of course, the Corps kept cranking out more permits for development in the study area. Corps officials in Florida have touted the study as a sign of how progressive they are, noting that no other Corps district in America has undertaken a similar effort. But both environmentalists and developers say it has made no appreciable difference in the pace of wetlands destruction. Hauck, the Bonita Springs civic activist, calls it "a toothless tiger."

Count among its critics the man who asked for it.

"I don't think it has worked to slow the stream of permits at all," Hankinson says.

While the Corps' study was underway, Hankinson was launching his own Southwest Florida initiative. He hired a state water quality expert named Bruce Boler to open a Fort Myers office and told him to "get tougher on Southwest Florida."

Boler began questioning nearly every large development project that came through, in particular challenging assertions that wiping out wetlands would do no harm to water quality. He frequently questioned why the Corps did little to slow wetland loss, even preparing an eight-page memo for his bosses blasting the Corps. "The Corps was just rubber-stamping everything," Boler says.

Boler ruffled a lot of feathers. Developers complained about him to EPA higher-ups. Well-connected Washington lobbyists complained, too. So did Corps officials, particularly Hall. At one point he e-mailed EPA officials that Boler was "a loose cannon" and they needed to get him

under control.

When a more conservative EPA regional administrator named Jimmy Palmer replaced Hankinson after the 2000 election, Boler says, his recommendations for blocking wetland permits in Southwest Florida began to be ignored or rejected. According to Boler, Palmer decreed that if state officials had found that a development permit would not affect water quality, they should not object to it, either.

Palmer denies issuing such a blanket edict about wetland permits but confirms that he believes "it's not appropriate for the federal government to run roughshod over decisions by the states."

Frustrated, Boler gave up. In 2003, he left the EPA for a job with the National Park Service-to work on restoring the eastern Everglades.

The other agency that tried to take on the Corps was the U.S. Fish and Wildlife Service, first battling a development called Naples Reserve, built by Vineyards Development Corp. next to Picayune Strand State Forest. The developer wanted to build 552 homes and a pair of golf courses on 691 acres, wiping out 109 acres of wetlands in prime panther habitat. As mitigation, the company offered to create two acres of wetlands on the site and nine acres elsewhere, and preserve some existing wetlands. That net loss of 98 acres was unacceptable, wildlife officials decided. The biologist who reviewed it for the agency, Andy Eller, called it "one of the worst of its class."

Wildlife officials fought the Naples Reserve permit all the way to the Pentagon, but top Corps officials "just dismissed our request out of hand," Eller says. "They were like: 'We're the Corps of Engineers. We make the decisions. Have a good day.'"

So then, with the help of a former Corps employee now working for the wildlife service, they prepared a lengthy report that examined how 24 projects in Lee and Collier counties had been given permits for destroying wetlands. The report concluded the Corps should have blocked or curtailed each one, in part because the so-called "alternatives" test had been a sham. But when they presented the report to the Corps, Hall told them they did not know what they were talking about, and that ended that.

"At that point it just became something I didn't think we would be able to move forward," says Jay Slack, the top wildlife official in South Florida.

In the meantime, an unlikely crusader has been pushing for the Corps to change its ways: activist Hauck of Bonita Springs, who when asked her age says, "I'm 60, and that's a lie." Hauck, founder of the Council of Civic Associations, regularly bombards the Corps, the EPA, the Fish and Wildlife Service and Congress with calls, e-mails, letters, Freedom of Information Act requests and comments on various development projects. Her persistence got the attention of Sen. Joe Lieberman, D-Conn. At his request, the GAO launched an investigation of how the Corps decides which wetlands to regulate and which ones to let developers wipe out without a permit.

A bigger and better-funded critic of the Corps is the National Wildlife Federation, which has already gone to court twice to overturn permits in Southwest Florida. In April a federal judge ruled that the Corps was illegally issuing permits for small wetland impacts in Lee and Collier counties without considering the overall effect on panthers.

And last year the environmental group persuaded a federal judge to overturn a Corps permit for a 6,000-acre Florida Rock mine in panther habitat. The judge said the Corps and the Fish and Wildlife Service had failed to consider the cumulative impact of wiping out so much of Southwest Florida's dwindling swamps and marshes.

Corps officials insist that, despite their power over permits, they're not responsible for Florida losing so many wetlands. They blame the EPA and other federal agencies for failing to give them reasons to say "no." They blame the state for not blocking development that harms water quality. They blame local officials for approving zoning changes for new development and then expecting the Corps to block it.

"Nobody," says Hall, "has the guts to draw the line."

St. Petersburg's Craig Pittman won the Waldo Proffitt Award for Distinguished Environmental Journalism in Florida.