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DeSantis’ Big Bet on Florida’s EPA Takeover Isn’t Paying Off [1]

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Date: 2023-07

Florida Gov. Ron DeSantis, determined to untangle housing, mines, and other development from time-consuming environmental reviews, asked the Trump administration in its closing months to let the state take over permits for building on federal wetlands from the EPA and Army Corps of Engineers.

Allowed under Section 404 of the Clean Water Act but only done by two other states, the takeover was a big bet that states can both streamline development and better control water pollution than the federal government can. It has provided an early window into how DeSantis might view environmental regulation as president if he decides to run.

But two and a half years into the state takeover, it isn’t yet the deregulatory panacea state officials and the EPA had hoped for.

A 10,000-unit housing development, a huge proposed limestone mine, and more than 1,700 other proposals are moving rapidly through the state process. Environmental groups say they’ve been stripped of legal and regulatory tools to protect what remains of the state’s wildlife-rich swamps and habitat for the 200 or so remaining endangered Florida panthers.

Randy Johnson, senior branch manager for Sakata Seed America, Inc., near Fort Myers, Fla. Photographer: Bobby Magill/Bloomberg Law

But permits are being approved only marginally faster. Rejections were unheard of when the Army Corps made the decisions; since the state took over, it has denied 145 permits as of March 10. And the EPA, which retains oversight of the program, has filed objections to dozens of projects the state is permitting.

“The federal government should stay out of the way,” said Joe Cameratta, CEO of Estero, Florida-based housing developer Cameratta Companies. “They’re not benefitting anybody. They’re making us delay and pay more money.” Cameratta Companies has built dozens of housing and commercial projects in Florida and Ohio.

Florida is among 24 states in a lawsuit fighting the Biden administration’s new waters of the US rule, which expands federal protections for waters and wetlands nationwide. Florida’s 404 program is one of the primary ways the waters rule is enforced in the state. A federal judge blocked the rule in April, but a similar earlier version remains in effect in Florida.

“The state is taking a position that would protect less wetlands,” said Aubrey Jewett, a professor and assistant director of the University of Central Florida’s School of Politics. “If we were to put DeSantis on the national stage, he’d probably do similar things to what he’s doing here.”

Florida is committed to administering its Clean Water Act programs lawfully, Alexandra Kuchta, a spokeswoman for the Florida Department of Environmental Protection, said in an email. She declined to make a department official available for an interview.



‘Slow to Gain Traction’

A state can assume control of federal 404 permitting, subject to EPA oversight, as long as it upholds federal law. Though states make money by taking over permitting, only Michigan and New Jersey had made that move before Florida did.

Since the 404 program has been in Florida’s hands, “just in Southwest Florida, we’re seeing the floodgates open in terms of applicants who have struggled in the past to get their Army Corps permit, to now try again” with the state in charge, said Amber Crooks, environmental policy manager for the Conservancy of Southwest Florida, a regional environmental group.

The floodgates did open; just not in the way anyone expected.

Developers filed for triple the Army Corps’ annual average of permit applications, plus hundreds of Corps applications that were handed over to the state, according to Florida DEP and Army Corps data.

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. Permit application processing time—about 74 days—is on average only about 10 days faster.

“It’s been very slow to gain traction,” said Shane Johnson, vice president and senior ecologist for Passarella & Associates, which works for Cameratta Cos. The state structures its wetlands review in a way intended to expedite permitting, but “we just haven’t seen it,” he said.

While the state is more apt to reject permits than the Army Corps did, they are being denied for lack of information, not on the grounds that they harmed wetlands, said Christina Reichert, a senior attorney for Earthjustice.

“Those ‘denials’ say the decision is ‘without prejudice’ and invite the applicant to reapply,” she said.

Julianne Thomas, Amber Crooks, and Nicole Johnson, of the Conservancy of Southwest Florida, which sued to halt Florida’s Clean Water Act wetlands permitting program. The site of a planned housing development undergoing wetlands permitting is in the background. Photographer: Bobby Magill/Bloomberg Law

Losing Tools to Save Wildlife

Broad high-speed highways cutting through the piney woods southeast of Fort Myers are clogged with dump trucks and big rigs these days. Many carry loads of limestone and other building materials from nearby mines to new construction projects converting slash pine and saw palmetto forests to bluegrass lawns, luxury homes, and golf courses.

The proposed 1,800-acre Troyer Bros. limestone mine , proposed more than a decade ago and slated to be wedged between housing developments and a nature preserve, would be one of the area’s largest.

It ran into a roadblock when the Army Corps said it would need to start a possibly yearslong environmental review, under the National Environmental Policy Act, of all limestone mining in the area to determine how the mine and others would affect federally-protected wetlands.

Troyer Bros. applied to the Army Corps for a permit again during the Trump administration, and this time its application was transferred to the state. Troyer has avoided a NEPA review under Florida’s process and is on track to get its permit.

“DEP will not issue any permit that is not protective of Florida’s environment and does not meet all requirements of Florida law,” Kuchta, of the FDEP, said.

The Troyer mine would border Sakata Seed America Inc.’s Fort Myers Research Station, which develops seeds for tomatoes, broccoli and, other vegetables found in supermarkets all over the globe.

Cameratta Companies plans to build a its Kingston housing development at this site in Estero, Fla. Photographer: Bobby Magill/Bloomberg Law

March is the dry season in southwest Florida, so Randy Johnson, Sakata’s station manager, keeps close watch on the irrigation system that provides just enough water for his lab’s long rows of young tomato plants to reach the water table below the sandy soil.

“We’re flooding these ditches here on both sides to help raise the water table a little bit—just enough for these plants to get a start,” Johnson said, walking between the tomato rows on a mid-March afternoon.

The proposed Troyer mine threatens to suck the water from beneath Sakata’s fields by digging deep into the aquifer below, Johnson said. Sakata won’t be able to plant the station’s fields if the mine is permitted, but “we can still grow in our greenhouses,” he said.

Aaron Troyer, who applied for the mine’s permit on behalf of Troyer Bros., declined to comment.

“Troyer is a lynchpin,” Crooks said. “If Troyer becomes the huge mining pits as proposed, all of the panther habitat east of it will be cut off.”

NEPA reviews were valuable because once the Army Corps called for one, “all the projects slowed way down,” Crooks said. With the state in control “we’re worried we don’t have that lever that we can take a look at all the impacts.”

The EPA objected to the state’s Troyer permitting process in 2021, saying the state used the wrong federal waters regulation to issue the Troyer permit—a dispute that’s ongoing. State officials say they expect it to be the subject of one of FDEP’s first public hearings on a state-issued 404 permit application. A date for the hearing hasn’t been set.

Audubon’s Corkscrew Swamp Sanctuary near Naples, Fla. Photographer: Bobby Magill/Bloomberg Law

Corkscrew Swamp

Cameratta’s proposed 10,000-unit Kingston housing development, southwest of Fort Myers, is the company’s first major project to undergo 404 permitting since the state takeover.

The project will use less water and protect more wetlands than the orange groves it replaces, cut phosphorus and nitrogen pollution compared to the site’s previous agricultural uses, and will provide wildlife corridors among homes planned there, said Tony Cameratta, a civil engineer for Cameratta Cos.

“We’re creating new wetlands out of nothing,” said Ray Blacksmith, president of Cameratta Cos. “We’re very conscious about the environment and we’ve been very good stewards.”

Kingston would border Audubon’s Corkscrew Swamp Sanctuary, which protects wood stork habitat and the largest virgin bald cypress stand in the US.

Walking on a boardwalk beneath cypress trees more than 100 feet tall as a pair of barred owls hooted from branches covered in figs and orchids, Bradley Cornell said the swamp is slowly being drained by nearby canals and development that have led to the loss of 82% of the wet prairies surrounding the sanctuary.

“Our whole sanctuary has been impacted by the loss of wetlands all around us, which are really important factors in whether we have listed species like wood storks nesting here or not,” said Cornell, a policy associate for Audubon Florida, which operates the Corkscrew Swamp Sanctuary.

Litigation Pending

The Conservancy of Southwest Florida and several other groups have sued in US District Court for the District of Columbia to force the EPA and Army Corps to wrest the permitting program away from Florida’s hands, saying the EPA under former President Donald Trump “created unlawful regulatory shortcuts” to give the state permitting control.



Keith Laakkonen, director of the National Audubon Society’s Corkscrew Swamp Sanctuary, near Naples, Fla. Photographer: Bobby Magill/Bloomberg Law

The groups have filed a motion for summary judgment, and oral arguments are scheduled for September.

“Wetland permitting is really important for the health of a whole watershed,” Cornell said.

A more effective permitting program might prevent the swamp from being drained and allow watersheds to be more effectively protected, he said.

“If we’re not protecting the whole watershed, the water’s not going to be clean, there’s not going to be enough of it at the right timing,” Cornell said. “This used to be by far the largest wood stork rookery in the nation, and now there’s hardly any here at all.”

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[1] Url: https://news.bloomberglaw.com/environment-and-energy/desantis-takeover-of-wetland-permits-erects-new-building-hurdles

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